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Source: United States House of Representatives – Congresswoman Eleanor Holmes Norton (District of Columbia)

WASHINGTON, D.C. – Congresswoman Eleanor Holmes Norton (D-DC), chair of the Congressional Black Caucus (CBC) Judicial Nominations Task Force, and CBC Chair Congresswoman Karen Bass (D-CA) sent a letter today to Senate Judiciary Committee Chair Lindsey Graham (R-SC) and Ranking Member Dianne Feinstein (D-CA) opposing the nomination of Judge Amy Coney Barrett to the Supreme Court.

“As chair of the CBC’s Judicial Nominations Task Force, my investigation into Judge Barrett’s writings and record on the Court of Appeals compel me to raise strong objections again to her nomination to the Supreme Court,” Norton said. “Her disregard for precedent endangers hard-won precedents that African Americans disproportionately rely upon, such as the Affordable Care Act.”

The letter follows.

October 19, 2020

The Honorable Lindsey Graham                                The Honorable Dianne Feinstein

Chairman                                                                    Ranking Member

Judiciary Committee                                                  Judiciary Committee

United States Senate                                                   United States Senate

Washington, DC 20510                                              Washington, DC 20510

Dear Chairman Graham and Ranking Member Feinstein:

Adherence to the consistent rule of law, no matter which political party is in power, and equal protection under the law, are the core tenets of our legal system and indeed of society itself.  With these principles in mind, the Congressional Black Caucus (CBC) strongly opposes Judge Amy Coney Barrett’s nomination to the Supreme Court.  Confirming Judge Barrett to the Supreme Court would violate these fundamental principles of American constitutionalism because her confirmation would break with precedent to advance the power of one political party over another.  A Justice Barrett would likely abolish long-standing precedents that have protected the rights of minorities, women and the LGBTQ community for decades.  That her confirmation would come within days of the presidential election is unprecedented and deeply troubling.

We have written before that it is outrageous that the Senate is moving so quickly on this nominee when the Senate refused to consider President Barack Obama’s nomination of Judge Merrick Garland to the Supreme Court 10 months before the end of a Congress.  Senate Republicans claimed at the time that the Senate should not act on any Supreme Court nominee during an election year, and affirmed that they would not consider any nominee by a then-hypothetical President Donald Trump in 2020.  That rule has been abandoned.  Indeed, Republicans in 2016 argued that the presidential primary had already started, which, in their view, precluded consideration of a Supreme Court nominee.  Today, however, they do not want to adhere to this precedent even while almost 30 million Americans have already cast votes in the general election.  If Judge Barrett were to be confirmed, it would be after nomination by a president who lost the popular vote in 2016, by a Senate where Republicans represent fewer Americans and received fewer votes than the Democrats, and where both the President and the Republican Senate majority appear to be in a precarious position going into next month’s election.  A vote now to confirm Judge Barrett would be a staggering blow to the American judicial system itself.

As members of the CBC, we naturally begin our analysis with how a likely judicial nominee’s future opinions would impact the rights of African Americans and other minorities.  On this, Judge Barrett’s professed judicial philosophy would represent a considerable departure from long-standing Supreme Court precedent and a blow to the protections for minorities our Constitution has long ensured.  Indeed, Judge Barrett has written more than once that originalism and the pursuit of original public meaning would necessarily lead to “the reversal of Brown v. Board of Education.”  While Judge Barrett has argued that, despite this, Brown would likely survive because it is a “super precedent,” her mere suggestion that Brown may have been incorrectly decided because it was not decided in accordance with original public meaning and “that the original public meaning of the Constitution is the law” should disqualify her.  Her claimed adherence to preservation of such apparently wrongly decided precedents, but which are now “super precedents,” however, does not give us optimism for how she would classify other important precedents that protect civil rights and liberties that she may not deem super precedents.  (Nor does she indicate how she would decide which decisions are super precedents, beyond her own determination.  For example, she has suggested that strong public support for the decision would indicate a super precedent, but she has said that Roe v. Wade, which enjoys overwhelming public support, is not a super precedent.)  Indeed, Judge Barrett has gone so far as to opine that, “[t]he issue is not, as is commonly assumed, a matter of stare decisis: the force of these super precedents derives not from the Court’s decision to afford them precedential strength but from the People’s choice to accept them.”  She goes on to say that the only reason that they remain as precedent is because individuals no longer challenge them in court, not because of their inherent correctness.  However, many extremely important precedents of the Court that protect civil liberties and rights were written over the strong opposition of the people, and it is precisely because of the counter-majoritarian nature of the Supreme Court that minorities and others have enjoyed equal protection.  She has also criticized the notion of stare decisis, the idea that decisions made in one case should be held to apply in similar future cases, and does not recognize it as stemming from the Constitution itself.  Indeed, this is a radical departure from long-standing American jurisprudence.

Troublingly, Judge Barrett has even gone so far as to insinuate that the Congress can ignore Supreme Court precedent it disagrees with.  In one article, she wrote, “Congress should perhaps give Supreme Court opinions the benefit of the doubt when it undertakes to evaluate their merits.”  Indeed, we suppose it should.  In fact, perhaps in contradistinction to Judge Barrett, we believe that adherence to Marbury v. Madison’s mandate that “It is emphatically the province and duty of the judicial department to say what the law is” is a bedrock principle of constitutional law that has protected every American against legislative and executive encroachment.  This is especially important for African Americans, who rely on the Court more than most Americans to uphold their civil rights.  Judge Barrett has even suggested that cases that do not adhere to her strict original public meaning interpretation are followed not because they are the law nor because they stand on solid ground.  “These cases do not stay in place because Supreme Court Justices continually reaffirm them – sometimes, as the hypothetical goes, against a Justice’s first-order of commitments.  These cases stay in place because the rules of adjudication keep the question of their validity off the table.”  We simply cannot accept as a justice someone who believes Brown v. Board of Education and so many other important civil rights cases should be upheld not because they are correct, but only “because [of] the rules of adjudication.”  Acceptance of Brown’s inherent legitimacy should be a litmus test for all judicial nominees.

There is ample evidence to suggest that Judge Barrett would overturn the Affordable Care Act.  Confirming such a justice during what is perhaps the worst public health crisis in American history, and while the Senate refuses to act to address the coronavirus economic and health crisis, is unconscionable.

It also now appears that Judge Barrett has failed to report some of her speaking engagements to anti-choice groups on her documentation submitted to the Senate Judiciary Committee.  This is further reason to stop the rush to confirm this problematic nominee and delay consideration of her nomination.

Without going into the many troubling cases that she has already decided, it is evident that Judge Barrett’s nomination presents a deeply disturbing possibility for the rule of law in this country.  We implore you to soundly reject her nomination.  Consideration of Judge Barrett’s nomination now, when voting throughout the United States has already begun, would cast a cloak of illegitimacy over her ascendance to the Supreme Court.

 

 

Sincerely,

                                   

____________________________                ____________________________________

Karen Bass                                                      Eleanor Holmes Norton

Chair, Congressional Black Caucus               Chair, CBC Judicial Nominations Task Force

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