Editorials

Retake the Senate!
Let the Little Judge Go

Becky O'Malley
Saturday October 17, 2020 - 05:02:00 PM

Here’s a really radical idea. How ‘bout the Dems just give up agitating about Amy Coney Barrett, who’s almost certainly a done deal, and concentrate on winning back the Senate in the next couple of weeks? The airwaves, both virtual and otherwise, are full of misplaced denunciations of Senator Feinstein for going easy on the little lady judge. But a self-described conservative in an NPR person-on-the-street interview said that Barrett's nomination finally relieved her of the need to vote for Trump--someone she, like the rest of us, finds disgusting, apart from principles. So let's just move on to taking back the country. 

; Control of the Supreme Court became the one issue that united all the confused souls who have historically found their home in the Republican party. Not clear is the question of why they want the Court so badly.  

The easy answer is that they want to be able to limit abortion as much as possible. What that will mean to the justices, all of whom have expressed some level of adherence to the legal doctrine of stare decisis, is unclear. 

Prior court decisions on access to abortion have conflicted with traditional Catholic religious doctrine, even though Catholics and former Catholics now dominate the Supreme Court. Barrett herself, another Catholic, has tested the doctrinal waters with an early law review article on the topic of the death penalty, which is equally condemned by the Church these days. At that time (she was just 26) she suggested that a Catholic judge might need to recuse herself in death penalty cases, though in her brief career on the bench she didn’t do that in cases which came before her. 

It’s not hard to partition off abortion as more of a deeply felt emotional controversy than a simple political question. That old “both sides” trap obscures the fact that there are many shades of grey between black and white. How a justice feels about abortion will not necessarily predict her other votes over a lifetime. 

How about health care, for example? Watching Amy Barrett before the judicial committee and researching her three-year judicial record just a bit, I’m not sure we can predict how she’ll vote on health care, let alone on other legal topics, for the rest of her term. 

The Supreme Court with the addition of Barrett might be able to poke holes in ObamaCare for a while longer, but a strong legislature will be able to backfill those holes and supplement the gaps in the law as passed. Americans have gotten used to some kind of government-sponsored health care—Socialized Medicine to its detractors—and they’re not about to let it go, regardless of legal quibbles. 

The tip-off was her reaction to Senator Sheldon Whitehouse’s brilliantly presented expose of the role of Dark Money in getting conservatives into the courts. 

My take is that he was playing to an audience of one, Judge Barrett herself. Her eyes above her mask had a deer-in-the-headlights quality, or perhaps a scared rabbit. (Her family birth name of Coney, as it happens, means rabbit.) She knew what he was talking about. 

Watch this: 

 

Can Amy Barrett become the agent of the Koch Brothers financial empire in their quest to destroy environmental regulations? Because that goal is the third leg of the trio of special interests which are now seeking to dominate the court. I strongly doubt that the Kochs and their ilk care a lot about abortion, or even about health care, but they are deeply interested in money and the power needed to get it. 

A mad rush to weaken all kinds of federal regulations before Trump can be removed is now underway, and control of the judicial branch is essential if they hope to get away with questionable actions. Does the dark money gang plan to use this Nice Catholic Girl who has genuinely strong emotional opposition to abortion to tear down the regulatory system which impedes their smash-and-grab methodology? 

It’s generally conceded in the media that Amy Barrett is very smart, but in fact she’s had very limited education and life experience. She grew up in the kind of Catholic ghetto that I did all through high school, but she never really left it. Being the smartest girl in the class only takes you so far if the class is limited. 

I do want to give a shout out to the kind of all-girls high schools we both attended, as did Nancy Pelosi and Dianne Feinstein (yes, even Dianne went to the Convent of the Sacred Heart in San Francisco.) In our day almost all of the teachers were women, mostly nuns, and there was no question that women could run any show, no men required. Being a nun was an interesting career path for the right person. I don’t know if there were any nuns left when Amy was at Dominican High in New Orleans, but I imagine she was indeed the smartest girl there. 

The school should be given credit for her ambition and achievement. Ironic note: its motto was veritas (truth), a quality in short supply in the current administration. 

Amy didn’t go far to college, just a few hundred miles upriver to a little liberal arts college, Rhodes, formerly Southwestern. It was smaller than Berkeley High was when my daughters, just a couple of years older than Amy, went there. I expect she was an outstanding student there too. A petition denouncing her appointment is currently circulating among its alumni. 

She went on to Notre Dame Law School. Notre Dame is a good enough school, ranked #22 among law schools on the USNews website for 2021. All of the sitting justices attended schools in the predictable one-two-three on that list, but #22 is quite respectable. If you need a Catholic school, only Georgetown (#14) is ranked higher. 

After law school she clerked for Justice Scalia, worked for a bit with a Republican law firm (her father was a Shell Oil corporate lawyer) and did a stint on the Bush v. Gore team that expropriated Florida in the 2000 election. Eventually she went back to Notre Dame Law to teach. 

Like all identifiable sub-cultures, Catholic academe in the United States has its own caste system. The Jesuit-run high schools and universities have traditionally had the most prestige for males. Notre Dame is not one of them, though it's big and rich. Neil Gorsuch and Brett Kavanaugh went to the Jesuits' Georgetown Prep. Antonin Scalia went to Georgetown University. 

Now that girls are admitted these schools might have changed. But the ideas explored in such institutions in many academic fields are inevitably constrained. 

It might be a plus that Amy Barrett did not go to elite schools. But as a self-described prototypical English major who is weak in Math, what can she know about the water flow in wetlands? Biotechnology? Epidemiology? The economics of antitrust? How, as a college graduate who is almost 50 years old, can she not be aware that human-caused climate change is no longer “just a theory”? But the good news is that she’ll have a long time to learn, and she just might. 

Case in point: Max Boot, whom I spotted as an undergraduate conservative columnist on the Daily Cal many years ago and wondered why such a smart guy was so stupid. He went on to become a conservative pundit, but now has been born again as a prominent anti-Trumper, and there are many like him who improved with age. 

Will Judge Amy Coney Barrett, who is only 48, choose to go on aiding and abetting the Dark Money gang who have paid so handsomely to groom her for this opportunity? Maybe instead she’ll be moved by current ideas in church thinking, as expressed by Pope Francis: climate change is real, the death penalty is wrong, market capitalism has failed to provide for the poor. 

People do change, and she’ll have thirty years to think about it. The other women on the court should start working on her as soon as possible. She might continue being horrified by abortion, but there's a chance for improvement on other topics. 

Oh, and one more thing. Since the Democrats were hornswoggled by Mitch McConnell in the matter of appointments near an election, it would be only right for a new president and congress to even things up by adding a couple of justices in the new year. Let's not call it packing, let's just say we will return the court to being fair and balanced. Knock on wood.