By Patrick Forrest
President Donald Trump’s announced selection to the Supreme Court of the United States, federal Judge Amy Coney Barrett, to fill the seat of the late Justice Ruth Bader Ginsburg, had her senate confirmation hearing where much of her judicial process came under scrutiny.
During the first day of the hearing Judge Barrett spoke in her opening statement about her connection to Justice Antoin Scalia whose death in 2016 in President Obama’s final year in office launched a direct parallel to the current circumstances.
Judge Barrett was a law clerk for Scalia while she was attending Notre Dame Law School and she commented that working with him shaped not only her philosophies about the law, but also about family.
“More than the style of his writing, though, it was the content of Justice Scalia’s reasoning that shaped me,” Barrett told lawmakers.
“His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were. Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best known opinions, that is what it means to say we have a government of laws, not of men.”
Illinois senator Dick Durbin has stood firm with his Democratic colleagues against the confirmation of Judge Barrett, both citing the precedent set by Republican senators who held the seat open for more than 10 months following Justice Scalia’s death and Judge Neil Gorsich’s nomination, as well as the position held by Barrett on health care, with the court slated to hear a case on the Affordable Care Act shortly after the November election.
“We know that access to health care and protections for pre-existing conditions are in jeopardy as Senate Republicans rush to confirm a new Trump Supreme Court nominee who has a record of criticizing cases that upheld the Affordable Care Act’s constitutionality,” Durbin, who was joined by Danielle Veira, Jeremy Wechsler, Karen Hall, and Bridget Hayman, who are Illinoisans with pre-existing conditions who depend on the protections in the Affordable Care Act for access to quality and affordable health insurance, said.
“An estimated five million Illinoisans with pre-existing conditions stand to lose important protections if the law is eliminated by the Supreme Court. Today I was honored to be joined by a few of these Illinoisans. Their stories reflect how critical it is for the ACA to remain the law of the land. It’s time to end this battle to eliminate the Affordable Care Act.”
During Judge Barrett’s confirmation hearing she declined to answer questions regarding how she would rule on such a case that the court is scheduled to hear shortly following a confirmation vote, which is slated to happen October 22.
In the case coming before the Supreme Court next month, Republican attorneys general and the Trump administration are arguing that when Congress repealed the tax penalty for the individual mandate in 2017, it invalidated the entire law.
Though she never directly answered the question or ruled on such a case, following the ruling Barrett wrote that Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
The other Illinois senator, Tammy Duckworth, made a more personalized connection to the issues at odds remarking on the judge’s past associations as reason that Barrett should be denied a seat on the court.
Barrett, and her husband, were two of the signatories of a full page ad which appeared in the South Bend Tribune in 2006 sponsored by St Joseph County Right to Life, an extreme anti-choice group located in the city of South Bend also known by the name, Michiana.
“Judge Barrett’s nomination is deeply controversial for a host of reasons, and I understand that we do not all agree on the next steps in her nomination process. But Judge Barrett’s willingness to associate her name with such an organization is disqualifying and, frankly, insulting to every parent, hopeful parent or would-be parent who has struggled to start a family,” Duckworth said in a letter to her Senate colleagues outlining her hesitation.
“Formally signing on to the message of an organization with these radical views goes beyond other nominees and demonstrates a lack of judgment, an absence of due diligence and a derision toward families like mine who were only able to have children with the help of methods and assistance that Judge Barrett personally disapproves of.”
The stances of the group would have made it impossible for Senator Duckworth to give birth to her two daughters, Abigail and Maile Pearl, who were both conceived through in-vitro fertilization (IVF) a process that St. Joseph County Right to Life believes should be made illegal.
“I fear that, if confirmed to the nation’s highest court, Judge Barrett would be unable to resist the temptation of overturning decades of judicial precedent in an effort to force every American family to adhere to her individual moral code,” Duckworth said.
“I fear that if a case involving ART were to be brought before the bench, families like mine would not be able to trust that her opinions would be based on facts, laws and the Constitution rather than swayed by her personal beliefs.”
Much of the criticism levied against Judge Barrett has been set aside arguing that they are part of a growing sense of religious bigotry targeted against Catholics, something that many Democratic lawmakers have dismissed as posturing.
“We have taken an oath to a Constitution that says no religious test. Enough said,” Durbin, a practicing Roman Catholic, said.
Barrett’s religion has been used to set her view on the issue of abortion and the precedence of the ruling in Roe v Wade, a case which has gathered much of the media attention in the lead up to Judge Barrett’s potential confirmation.
The view could potentially cause an issue in creating the cure or a treatment for COVID-19 that President Trump has touted after receiving the treatment at Walter Reed hospital and recovering from the treatment. It has been reported that the drug Regeneron, the experimental “antiviral antibody cocktail” given to President Trump to treat COVID-19, involved the use of human fetal tissues and embryonic stem cells.
“I spent four days there [at Walter Reed] and I went in, I wasn’t feeling so hot. And within a very short period of time, they gave me Regeneron. It’s called Regeneron. And other things too but I think this was the key,” President Trump said. “But they gave me Regeneron, and it was like, unbelievable. I felt good immediately. I felt as good three days ago as I do now.”
This revelation means that the drug that has shown promise to treat symptoms of COVID-19 only came about due to scientific research that was made possible due to donations of aborted fetal tissue.
Senate Democrats have also brought issue with comments made by President Trump regarding the importance of inserting Judge Barrett on to the court before the upcoming election, which Trump stated he believes the court will decide.
“I think this will end up in the Supreme Court. And I think it’s very important that we have nine justices,” Trump said. “It’s better if you go before the election, because I think this scam that the Democrats are pulling — it’s a scam — the scam will be before the United States Supreme Court. And I think having a 4-4 situation is not a good situation.”
Judge Barrett has, to this point, refused to commit to recusing herself on any potential case regarding the 2020 election.