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US Supreme Court



California – In commemorating through her state funeral the outstanding career of a remarkable woman, confusion occurred among listeners and viewers over the media’s description of the event as uniquely historic. The uncertainty was about whether Ruth Bader Ginsburg was the first woman to lie in state at the US Capitol. That claim many felt was perhaps wrongly attributed to her because Rosa Parks, another civil rights icon was the first to have her casket laid out in the Capitol following her death in 2005.

Experts and historians have since clarified that both women were the first, Parks being the first woman to ‘lie in honor’, and Ginsburg the first female to ‘lie in state’. The difference is one of degree and not of kind. Lying in honor is a distinction accorded to a non-official citizen, and lying in state is reserved for those who have served in government, which is what Ginsburg was as one serving on the US Supreme Court.

With that issue clarified, and the related doubts fully resolved, some discomfort nevertheless lurks over the constant refrain during the state funeral coverage over Ginsburg being the first Jewish woman to be thus honored. The Constitution celebrates the right of citizens to follow their faith but at the same time requires the state to stay off any endorsement of any faith. When politicians and nefarious forces in the media, business, academia or elsewhere seek to play up faith or play it down, they are being less than honorable to the memory of the fallen, in this case Ginsburg.

Being Jewish is rare compared to being Christian with the latter faith predominant among Justices in the highest court (Court) ever since the Court’s inception. Over time as presidents consciously moved towards a Court more reflective of US geography and demography, Jewish presence on the Court became noticeable. Brandeis who served on the Supreme Court from 1916 to 1939 was Jewish. So were half a dozen others including Justices Frankfurter and Cardozo. Another Jewish Justice (Abe Fortas) in fact was nominated by President Lyndon Johnson to be Chief Justice from the post he then held as Associate Justice on the Court. The nomination was made after Chief Justice Earl Warren tendered a conditional resignation that would become effective upon his successor’s confirmation. Fortas’s upgrade failed not because of his faith but because of his known close links to Johnson and other failings including some dubious remuneration he received.

But the need to cite (and measure) justices by faith seems destructive of the very essence of justice being ‘blind’. It can also cause the Court to appear lopsided. Among the current eight Justices serving on the Court, five are Roman Catholic, one Episcopalian but raised Catholic, and the remaining two are Jewish. The predominance of one faith in the Court’s composition already posed a risk of being manipulated in order to erode confidence in the Court. The nomination and almost certain confirmation of Amy Coney Barrett – also a Catholic – to step into Ginsburg’s seat on the Court, unfortunately, has only caused faith once again to raise its ugly head. Opponents including political players and civil rights groups fear that her religious beliefs have been and would continue to cloud her judgment.

The all consuming issues on which they suspect she may well command a highly destructive casting vote are women’s reproductive freedom and right to abortion, and people’s right to healthcare (the latter equated to the Affordable Healthcare Act deemed as Obama’s prime and sacrosanct legacy). Nominated by Trump and confirmed by Senate to serve as Justice on the Seventh Circuit Court of Appeals only three years back (October 2017), Barrett has already been through the wringer. Yet that is not enough for those who are seeking to make her confirmation painful if not impossible, considering Republicans hold the majority vote.

Given the negative polling implications of hounding the nominee for her faith, unlike her last hearing during which Senator Feinstein impudently and unjustifiably accused Barrett that “the dogma lives loudly within you” and “that is a concern”, this time around, Democrats are being cautious and choosing to lay off frontal attack on religion. Instead they are going after her written and oral text in support of one or the other point of view in her academic and judicial writings and statements. While they can come up with what they perceive as legitimate concerns, as Senators Kamala Harris and some others have claimed they will do, it is difficult to query and pin down any judicial nominee on how she would rule on any given case.

Faced with pointed probes, nominees almost always decline to answer hypotheticals, and justly so. Given the uncertainty and unpredictability of judicial verdict, it makes sense to turn to Barrett herself for reassurance. “My personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge” she has said, and “It is never appropriate for a judge to impose that judge’s personal convictions, whether they arise from faith or anywhere else, on the law.”

Applying a religious test for appointing someone to an office is not only unethical but unconstitutional. Faith is private, as John Kennedy argued, to allay those who feared he would ignore his oath of office and take orders from the Pope. “I am not the Catholic candidate for president. I am the Democratic Party’s candidate for president, who happens also to be a Catholic. I do not speak for my church on public matters, and the church does not speak for me,” Kennedy asserted.

If a President can rule responsibly and independently of his or her faith, why do we expect a Justice to do less? Those suspicious of and eager to derail Barrett’s nomination on grounds of her religious beliefs would do well to recall what Chief Justice Roberts in response to Trump’s allegation of a partisan Court wisely noted, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” What Roberts said in the context of politics holds true equally of religion. There is no Catholic or Protestant or Jewish or Hindu Justice. There is only a Justice seeking to deliver equal justice.
Another, even more disturbing cudgel with which opponents have sought to beat Barrett is the fact of her seemingly tranquil profile of a successful career woman equally committed to wifehood and motherhood. As mother of seven of which two are adopted, and a Sunday Church going spouse and mother, her persona directly challenges and undermines the somewhat simplified feminist monopolistic image of an independent-minded, autonomous, liberal, secular, but professionally hassled and personally discontented woman.

In today’s widely favored and popular image of an anguished world where everyone – man, woman, child or beast – is traumatized and a victim, to see a wholesome, committed, hard working, high achieving, and seemingly well-adjusted happy multipara (mother of many) woman “who seems to have it all” is devastating and must be challenged.

Astonishingly, even the ethnic composition of Barrett’s family has not been spared. Exhibit A is the ghastly tweet from Ibram X. Kendi, a College of Arts and Sciences tenured professor of history, and no less than the director and founder of Boston University’s Center for Antiracist Research. A black pride-filled but misguided ethnically monopolistic Kendi puts forth a revolting rationale for Barrett’s adoption of two Black kids. According to him, some white colonizers adopted Black children and they “civilized” these “savage” children in the “superior” ways of White people, while using them as props in their lifelong pictures of denial, while cutting the biological parents of these children out of the picture of humanity. In other words, Barrett is a racist white colonizer and her adoption of two poor Haiti kids is some sort of white conspiracy to hide white racism behind the trophies of adopted black kids, and worse, an intentional effort to keep black families broken up and apart, and erased from biological history.

Unless the past three years have drastically changed the life achievements and jurisprudence of Amy Barrett, there is not much headwind for opponents in the Senate or outside to degrade her candidacy or deny her confirmation. Regardless of the concerns about her religiosity and her textual rulings and writings among proponents of affordable healthcare or among supporters of women’s, ethnic minorities’ and gay or ‘various’ gender rights, it would be important to note that even with her affiliation to the originalist and constitutionalist school of jurisprudence, she is respectful of tradition.

Deeming previously decided cases as “binding precedents”, her promise at the last Senate hearing that she intended to “faithfully follow if confirmed” is nothing to scoff at but rather a basis for her candidacy to be embraced.

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