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OPINION | TIM GRIFFIN: Return respect to nomination process

by TIM GRIFFIN SPECIAL TO THE DEMOCRAT-GAZETTE | October 4, 2020 at 8:17 a.m.

President Trump recently nominated Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit to replace the late Justice Ruth Bader Ginsburg on the United States Supreme Court. Judge Barrett's credentials, experience, and compelling life story make her an outstanding choice. But with a presidential election looming and the balance of power on the court in question, the stakes are high.

We should not allow the toxic politics of recent Supreme Court nominations to turn this nomination into a partisan circus. Judge Barrett and our country deserve a fair and respectful hearing.

The first question we should ask of any nominee for the U.S. Supreme Court: Are they qualified to hold the position? Judge Barrett possesses the sharp intellect and brilliant legal mind that we require of our Supreme Court justices. After earning a full academic scholarship at Notre Dame Law School, she was executive editor of the law review. She also graduated first in her class, earning the law school's award for the best record of scholarship and achievement.

Noah Feldman, a self-described liberal law professor at Harvard University, supports Judge Barrett's nomination and recently wrote, "I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith ..."

She currently sits as a federal judge on the Seventh Circuit and has 15 years of experience as a law professor at Notre Dame School of Law, where she was selected three times as the "Distinguished Professor of the Year." In addition, she has experience in trial and appellate litigation as a private attorney. She also clerked for former U.S. Supreme Court Justice Antonin Scalia.

Judge Barrett has an unyielding devotion to the U.S. Constitution. Like Justice Scalia, she is an originalist who believes in textualism: The Constitution should be interpreted as it was written, not as one wishes it would have been written. Consider her words during her announcement: "A judge must apply the law as written. Judges are not policymakers, and must be resolute in setting aside any policy views they might hold."

The Constitution is the crown jewel of our republic, and will be in good hands with Judge Barrett on the Supreme Court.

Judge Barrett lives with her husband and seven children in South Bend, Ind. Her family is as beautiful and unique as the country she has dedicated her life to serve: Two of her children are adopted from Haiti, and her youngest son has Down syndrome. If confirmed, she would be the first mother of school-aged children to serve on the Supreme Court. And with the passing of Justice Ginsburg, Judge Barrett would add to the diversity of the court as one of three female justices.

In a less polarized time, a nominee as eminently qualified as Judge Barrett would receive a nearly unanimous vote for confirmation. Justice Ginsburg, who clearly held liberal political views, was confirmed by a vote of 96-3. Democrats now complain that, because Senate Republicans in 2016 chose not to advance the nomination of Judge Merrick Garland for Supreme Court, that Judge Barrett should not be confirmed either.

The politics of Supreme Court nominations have turned toxic in modern times, and it's helpful to remember why. In 1987, President Regan nominated highly qualified Judge Robert Bork. Judge Bork was mercilessly attacked by Senate Democrats, who disagreed with his originalist philosophy. They torpedoed his nomination, and in the process smeared the character of a good man. In fact, the Democrats' assault on Bork was so out of the ordinary that the term 'Borking' a judicial nominee came to represent the character assassination of an otherwise qualified nominee.

In 1991, President George H.W. Bush nominated now-Justice Clarence Thomas, the second African American to ever be nominated to the Supreme Court. Despite being confirmed on a narrow vote, Senate Democrats, including Joe Biden, viciously attacked Judge Thomas with last-minute accusations of sexual harassment.

During the Obama years, Senate Majority Leader Harry Reid used the "nuclear option" to eliminate the filibuster for federal judicial nominees. The move, opposed even by many Democrats, was a dramatic departure from Senate norms and a raw power play that irreparably damaged court politics even further.

Democrats pulled out all the stops in their quest to deny Judge Kavanaugh a seat on the court. They accused him of everything from being a sexual harasser to a gang rapist, even going as far as to comb through his high school yearbook for non-existent evidence to support their wild accusations.

The decision not to advance Judge Merrick Garland's nomination for the court in 2016 has led Democrats to feel that Republicans haven't played fair in judicial confirmations either. While no party is totally blameless, the Senate's decision not to advance Judge Garland can't be understood without the context of Senator Reid's decision to eliminate the filibuster, along with the mistreatment of Judge Bork and Justice Thomas.

And Republicans have historical precedent on their side: There have been 15 election-year vacancies on the Supreme Court. In the nine instances where the presidency and Senate were controlled by the same party, eight of those nominees were confirmed.

When the presidency and Senate were controlled by opposing parties, two of the six nominations were confirmed.

We must choose whether to continue the dysfunctional politics that have characterized most Supreme Court nominations from Judge Bork to Justice Kavanaugh. or return to a respectful and fair process. Unfortunately, some on the far left have already attacked Judge Barrett's children and her religious views. May more reasonable voices prevail.

Judge Barrett is the ideal candidate for the court: an incredibly gifted legal mind with superb qualifications, an inspiring personal narrative, and a strong fidelity to the Constitution and the rule of law. I look forward to her eventual confirmation.

Tim Griffin is lieutenant governor of Arkansas.


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