By KELLY TSHIBAKA
Liberals should love Amy Coney Barrett. As an independent woman who has held prestigious positions in legal academia, private practice and the judiciary, she embodies the ideal of professional excellence for feminists. Equally impressive and inspiring was that she attained to these rarified heights, while also raising seven children and volunteering in her community.
If tenacious women like Justice Ruth Bader Ginsburg prepared the way for women to practice law, formidable women like Judge Amy Coney Barrett have paved it. Judge Barrett is an incisive jurist who has developed an impressive body of thoughtful academic writing and legal opinions over the course of two decades. So, what is all the outcry about? While red herring arguments abound, it simply comes down to this: Judge Barrett is an originalist who will interpret the U.S. Constitution as the Founders intended, and a textualist who believes words mean what they say, not what you wish or want them to say.
A fierce intellectual debate rages between jurists who believe the role of the judge is simply to interpret the law as it is written and those who believe it is to help make law. Unfortunately, that debate has hyper-politicized the pursuit of justice. Activist judges and their liberal supporters have sought to rip off Lady Justice’s blindfold, thereby giving her a sneak peek at a judge’s pre-determined outcome of a case, while originalist judges like Judge Barrett have fought hard to keep that blindfold from being removed. Judge Barrett’s judicial philosophy champions civil rights — it seeks to protect citizens from a jurisprudence that, at bottom, is arbitrary, autocratic and authoritarian.
Yet, curiously, liberals instead view Judge Barrett as a threat to justice because, in 2017, her judicial philosophy led her to argue that Chief Justice John Roberts’ opinion upholding Obamacare “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
However, is not the real threat that Justice Roberts read into the law a meaning that simply was not there? Do Judge Barrett’s opponents really believe that any of them would be safe if a judge who bases her legal opinions on her political views and personal convictions, rather than on the law, were to hold such a powerful office? In truth, they do not.
Indeed, those who oppose Judge Barrett, including powerful senators like Dianne Feinstein, have articulated their concern that her faith might influence her legal opinions; they fear she might be a judicial activist with respect to causes they hold dear. Ironically, in so doing, they admit that they, too, are originalists and textualists. So, their opposition of a jurist who is one of the most respected originalists and textualists of our generation is puzzling.
Judge Barrett’s opponents are concerned she will gut health care, end legal abortion and destroy civil rights. On what basis? Amy Coney Barrett has a long track record that demonstrates her devotion to originalism, to not corrupting her interpretation of the law with her personal views. Indeed, because of prior precedent, she recently issued a ruling that supports buffer zones at abortion clinics.
Finally, it is truly perplexing that Judge Barrett’s opponents would think that a woman who adopted two Haitian children, and who advocated for one of her blind students, would seek to undermine people’s civil rights. These concerns are not reflective of the evidence of Judge Barrett’s life and legal record, but of the polarized and paralyzed political nature of the judicial confirmation process that Democrats, led by then-Sen. Joe Biden, initiated with the late Judge Robert Bork and continued with the “high-tech lynching” of Clarence Thomas.
Justice Ruth Bader Ginsburg said legal “dissents speak to a future age.” One of the justice’s closest friends was Justice Antonin Scalia, Judge Barrett’s mentor. With Judge Barrett’s nomination, we may now have stepped into that “future age” when those who heard, and even helped write, Scalia’s dissents are rising to take the place of their mentor. I imagine that at least part of Ginsburg would be overjoyed to see her seat filled by a woman who was her dear friend’s “favorite” mentee. That is something liberals and feminists should celebrate; it is something we all should celebrate.
Kelly Tshibaka, commissioner of the Department of Administration, is a Harvard Law School-educated government watchdog, national security attorney and civil liberties attorney who served in the Trump, Obama and Bush administrations. This column ran in the Washington Times.