WASHINGTON, DC – SEPTEMBER 26: U.S. President Donald Trump (L) introduces 7th U.S. Circuit Court Judge Amy Coney Barrett as his nominee to the Supreme Court in the Rose Garden at the White House September 26, 2020 in Washington, DC. With 38 days until the election, Trump tapped Barrett to be his third Supreme Court nominee in just four years and to replace the late Associate Justice Ruth Bader Ginsburg, who will be buried at Arlington National Cemetery on Tuesday. (Photo by Chip Somodevilla/Getty Images)
By Michael J. Cozzillio
On Oct. 12, the U.S. Senate Judiciary Committee will convene to debate on the confirmation of Judge Amy Coney Barrett for a seat on the United States Supreme Court.
This process will commence at the instigation and orchestration of President Donald Trump and Senate Majority Leader Mitch McConnell, R-Ky.
The initiation of the process at this time conjures myriad questions that plead for some type of response.
However, prior to addressing these issues, some personal background warrants a brief mention.
I was privileged to serve as a Visiting Professor of Law at Notre Dame Law School several years ago. I also have spent some extended time in South Bend devoted to speaking engagements and cooperative research projects associated with the university.
During these periods, I enjoyed the pleasure of Judge Barrett’s company on a few brief occasions. She could not be faulted if she had no recollection of our sporadic exchanges. Few would argue with the notion that she is a far more memorable and fascinating colleague than I have been or hope to be.
Further, my personal experience and the opinions of legions of colleagues and students reinforce the view that Judge Barrett is an engaging, erudite, teacher/scholar whose presence on any faculty would be a blessing.
At the same time, I must acknowledge that my experience and review of her jurisprudence suggest a yawning chasm of difference between our philosophies, optimum direction for the country and apparent allegiance to the current administration.
My concerns about her apparent predispositions on issues such as Obamacare, gun control, or women’s right to choose cannot be overstated The ascendancy to the high court by her, or others who share her predilections, is a harbinger that causes me no small amount of dismay.
That having been said, neither my favorable impressions of her personally, nor my dramatic disagreement with her juristic interpretation of law, flavor what is to follow. Thus, with the hope that any potential biases have been now fully exposed, discussion of the following questions can be joined.
Given Judge Barrett’s unimpeachable character, can she welcome or take pride in elevation to the most prestigious and profoundly important star in Article III’s firmament promoted through a process so rife with infirmity?
Proponents of this confirmation debacle have by their actions and promises scorned the very mechanism that they now embrace like a prodigal son.
The level of hypocrisy characterizing the arcane distinction between McConnell’s refusal to permit consideration of Judge Merrick Garland’s appointment in 2016, and the current situation has been the subject of countless editorializing and need not be expounded here.
Suffice it to say that the disingenuous attempts to justify incomprehensible flip-flops by U.S. Sens. Lindsay Graham, R-S.C., Chuck Grassley, R-Iowa, and the gang that couldn’t shoot straight, as it were, are insulting and sickening.
The point being made here is that the failure to wait until the results of November’s election has unfairly diminished the great honor bestowed on Judge Barrett.
As a corollary inquiry, does Judge Barrett really want to proceed through time with someone who boasts of caressing women’s genitals, embarrasses his spouse(s) with extramarital affairs, bribes women in exchange for their silence, exchanges doting missives with murderous dictators, cheats the government and the American people with fraudulent tax practices, maligns our noble veterans, living and dead, and through his manifest disregard for science and history devalues the lives of all citizens, particularly people of color?
Let’s end the self-delusion. This issue is not about politics or ideology. It’s about human decency and respect for one another.
I have some misgivings about those who have been preoccupied with Judge Barrett’s religious affiliations and fervency, but the irresistible and wholly legitimate question emerging is what nuanced construction of Judeo-Christian ethics, Islamic teaching, or other religious instruction would permit one to accept any encomium from such a degenerate sponsor?
While religion is not part of this discourse, Judge Barrett perhaps should be asked just which one of the Ten Commandments has Mr. Trump found worthy of his attention?
The old caveat that we are judged by the company we keep is perhaps secondary to the concept that our worth may be assessed by the quality of the one offering the assessment. U.S. Mitt Romney, R-Utah, in particular, presents a mystery worthy of Alfred Hitchcock.
This guy voted to fire Trump because of his unfitness to be President and then proceeds to endorse an appointment and a process ordained by the incompetent fraud that he had earlier chosen to immerse in ignominy.
Can you envision him as president of a school board firing his chauffeur for incompetence behind the wheel and subsequently endorsing that driver’s recommendation for a vacant school bus driver position? To paraphrase Mark Twain, rumors of Romney’s integrity have been greatly exaggerated.
The most cloying question is how might history have been altered and what harm would have been endured if Judge Barrett, with her virtually impeccable reputation for righteousness, had told Trump publicly that she would be honored by an appointment if and only if the honor were bestowed after he had been re-elected.
Can you fathom the impact that such an honorable, patriotic, selfless approach would have generated? One can almost rest assured that at least a few additional Republican senators might have reconsidered their positions and agreed to depoliticize this corrupted process by voting to await a Trump victory.
The GOP would be no worse off than it would be if the Garland appointment had not been sabotaged. In fact, the court would still be peopled by, at worst, a 5-4 Republican/conservative majority.
If Trump were to win, and Judge Barrett joins, the Court in November, the Democrats would certainly not be thrilled with the result. But its legitimacy would be immune from derision and adherence to constitutional norms would again survive the closest scrutiny.
Finally, there can be no denial that the distinction of becoming a member of the world’s most august judicial body stands alone – so please soft-pedal any accusation of naivete.
Indeed, turning down the opportunity would represent a profile in courage of incalculable dimension. Still, the ultimate question is, “what price glory?”
Trump has surrounded himself with enough stooges, enablers, and agents of his perversity. Judge Barrett’s nonpareil reputation, her unyielding moral standards, and her spiritual raison d’etre would seemingly disqualify her from joining that ethically bankrupt confederacy.
Michael J. Cozzillio is a former member of the faculty at Catholic University’s Columbus School of Law as well as Widener Commonwealth Law School in Susquehanna Twp., Pa., where he has served as Emeritus and Distinguished Professor of Law.
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