Fr. Frank Pavone,
Supreme Court nominee Judge Amy Coney Barrett took a step closer today to being Justice Barrett, as the Republicans voted to send her confirmation to the full Senate.
Last week’s grilling by Senate Democrats brought about some bizarre moments.
Sen. Mazie Hirono, D-Hawaii, felt she had to make sure that Judge Barrett has never been guilty of sexual assault.
We also know she’s not a climate scientist, as she assured Sen. Kamala Harris, D-Calif.
And we know, thank heavens, that she does not hate “little warm puppies.”
Credit Sen. John Kennedy, R-La., for that moment of levity that also underscored the absurdity of some of the questions the judge was asked.
What she would not answer directly is how she would rule on cases involving the hot-button issues of the day, most notably, abortion.
That’s what we expected, what we wanted, and how it should be.
Though missing the over-the-top lunacy of the 2018 hearings for now-Justice Brett Kavanaugh, committee Democrats were determined to wrest judicial rulings from a nominee who knows the law better than any of them and also understand what it means to be a judge.
Asked by Sen. Dianne Feinstein, D-Calif., if she agreed with late Justice Antonin Scalia that Roe v. Wade was wrongly decided — a decision also criticized, incidentally, by late Justice Ruth Bader Ginsburg — Judge Barrett invoked a statement from a third justice, Elena Kagan, during her own confirmation hearings in 2010.
“I’m going to invoke Justice Kagan’s description, which I think is perfectly put,” Judge Barrett said. “She said that she was not going to grade precedent or give it a thumbs-up or a thumbs-down.”
Under further questioning by Sen. Amy Klobuchar, D-Minn., Judge Barrett patiently explained what is meant by the term “super precedent” and why Roe v. Wade doesn’t fit the definition.
A super precedent, she said, is one of a very small number of cases that are “so widely established and agreed upon by everyone that calls for its overturning simply don’t exist.”
Roe v. Wade “doesn’t fall in that category,” she said, quoting Harvard Law Professor Richard Fallon because “calls for its overturning have never ceased.”
Those anti-abortion, like myself, will be happy to see Judge Barrett join the majority of justices on the Court who believe in the sanctity of every human life. But the reason is not that she holds that conviction as much as it is that she is convinced that rulings should be based on the Constitution, not on “rights” made up out of thin air.
As Justice Clarence Thomas recently made clear, “Because we can reconcile neither Roe nor its progeny with the text of our Constitution, those decisions should be overruled”(Dissent in June Medical Services case, June 2020).
“The text of the Constitution.”
That’s what matters to the kind of judges that President Donald Trump appoints.
“Judges can’t just wake up on day and say I have an agenda — I like guns, I hate guns, I like abortion, I hate abortion — and walk in like a royal queen and impose their will on the world,” she said. “It’s not the law of Amy. It’s the law of the American people.”
And that’s what matters to those who oppose Roe vs. Wade.
Indeed, not only is this decision not, by any stretch of the imagination,”super precedent,” but it is the most widely criticized Supreme Court decision in our history. It is criticized not only in the court of public opinion, but in the court system itself, and not only by dissenting opinions on the Supreme Court which can one day become majority opinions. Roe has also been criticized by numerous lower court judges who, although they have to apply it, do not have to agree with it.
Just as a smattering of examples, Judge John M. Walker, Jr., of the Second Circuit, complained in 2006, “I can think of no other field of law that has been subject to such sweeping constitutionalization as the field of abortion.” Judge Daniel Manion of the Seventh Circuit wrote, “[A]bortion is now a more untouchable right than even the freedom of speech.”
And in a particularly memorable passage, Danny Boggs, former chief judge of the Sixth Circuit Court of Appeals, observed in 1997 that “[t]he abortion area, of course, has been largely constitutionalized, as the Supreme Court has made clear in a line of decisions starting with Roe.”
He then goes on.
“The post-Casey history of abortion litigation in the lower courts is reminiscent of the classic recurring football drama of Charlie Brown and Lucy in the Peanuts comic strip. Lucy repeatedly assures Charlie Brown that he can kick the football if only this time he gets it just right.
“Charlie Brown keeps trying, but Lucy never fails to pull the ball away at the last moment. Here, our court’s judgment is that Ohio’s legislators, like poor Charlie Brown, have fallen flat on their backs. I doubt that the lawyers and litigants will ever stop this game. Perhaps the Supreme Court will do so.”
We are indeed a step closer to seeing that happen.
Fr. Frank Pavone is one of the most prominent anti-abortion leaders in the world. He became a Catholic priest in 1988 under Cardinal John O’Connor in New York. In 1993 he became the fulltime National Director of Priests for Life. He is also the President of the National Pro-life Religious Council, and the National Pastoral Director of the Silent No More Campaign and of Rachel’s Vineyard, the world’s largest ministry of healing after abortion. He travels the nation assisting pro-life advocates to end abortion, and broadcasts regularly on television, radio, and internet.