Federal Courts and Nominations

Letter to the Senate Opposing the Nomination of Judge Amy Coney Barrett to the U.S. Supreme Court

On October 9, 2020, I [CAC President Elizabeth Wydra] wrote to the Senate Judiciary Committee expressing grave concerns about Judge Amy Coney Barrett’s nomination to the Supreme Court of the United States and the scheduling of her confirmation hearing.1 The letter noted how holding the confirmation hearing at this time damages the legitimacy of the Court: there has not been a consistent standard for considering a President’s nominee to the Supreme Court during an election year, let alone once millions of votes have already been cast; the President has indicated how he expects his nominees will vote on certain issues; and he has also stated that he wants Judge Barrett on the bench in time to “look at the ballots” in the election following his repeated false claims of mail-in ballot fraud. As a result, I said, “This hearing should not be happening now.”2 However, as Senate leadership insisted on the hearing moving forward, regardless of the damage it would do to the institutional integrity of the Court, I asked the Committee to examine closely Judge Barrett’s record and question her to determine whether she would be faithful to the text, history, and values of the whole Constitution; be fair-minded and not put her thumb on the scales of justice in favor of big business; and serve as an independent check on the President who nominated her. I had concerns that she not only passed President Trump’s litmus tests to overturn Roe v. Wade and dismantle the Affordable Care Act, but also would “work to undo the legal legacy of Ruth Bader Ginsburg, move the Roberts Court further away from mainstream legal thought, and be a reliable vote for big business over the interests of all people.”3 Unfortunately, Judge Barrett said nothing during her confirmation hearings to dispel those concerns. Furthermore, she refused to answer simple questions about the text of the Constitution that would indicate we could trust her to be an independent check on the President who nominated her. Therefore, I write to you today on behalf of the Constitutional Accountability Center to oppose her elevation to the Supreme Court.

The Constitutional Accountability Center (“CAC”) was founded in 2008 as a public interest law firm, think tank, and action center dedicated to fulfilling the progressive promise of our Constitution’s text, history, and values. We work to preserve the rights and freedoms of all Americans and to protect our judiciary from politics and special interests. As a law firm, CAC makes arguments grounded in constitutional text and history. As a think tank, we produce original scholarship on the text and history of the Constitution, distilling the best legal and historical scholarship to help Americans better understand our Constitution and inform how modern debates about its meaning should be resolved. And, as an action center, we explain why the Constitution is, in its most vital respects, a progressive document, written by revolutionaries and amended by those who prevailed in the most tumultuous social upheavals in our nation’s history—Reconstruction, Suffrage, and the Civil Rights movement. Through litigation, scholarship, and advocacy, we seek lasting victories rooted in the text, history, and values of the whole Constitution.

As litigators and defenders of the judiciary and the rule of law, CAC has a vested interest in nominations to the federal courts; and there are no nominations more important than those to the Supreme Court, one of the most powerful arbiters of constitutional liberties and protections. The American people are entitled to Supreme Court justices who will not only safeguard the whole Constitution, but also treat each litigant fairly and with dignity, and serve as an impartial, independent check on the President and Congress. It is with these considerations in mind that we reviewed the nomination of Judge Amy Coney Barrett and determined CAC must oppose her confirmation to the U.S. Supreme Court.

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