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We need to know more about Judge Barrett

This appeared in the Chicago Tribune.

In a vacuum, Amy Coney Barrett would be seen as a highly capable, fully qualified choice to serve as a justice of the U.S. Supreme Court. She has been a Supreme Court clerk to the late Antonin Scalia, a law professor at George Washington University and the University of Notre Dame, and, since 2017, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals.

But her nomination by President Donald Trump doesn't come in a vacuum. It comes as the result of the death of Justice Ruth Bader Ginsburg. The vacancy gave the president the chance to try to get his third Supreme Court appointee confirmed, possibly before the presidential election — and, if not, in the lame duck session of Congress that will follow, even if he should lose to Joe Biden.

His decision to make a selection now and the Republican-controlled Senate's evident eagerness to proceed are unwise. In 2016, Senate Republican Leader Mitch McConnell refused to allow hearings, much less a vote, on Barack Obama's nomination of Merrick Garland — contending that an election year was the wrong time to fill a vacancy. Today it's Democrats making a version of that argument.

Those who have power can use it to get their way, and nothing in the Constitution says the president or the Senate must take into account the electoral calendar when it comes to Supreme Court appointments.

The Judiciary Committee hearings should serve as an opportunity for lawmakers and the public to consider what Barrett, 48, would bring to the court — not a political show of gotcha questions from senators.

One topic on many minds is the 1973 Roe v. Wade decision that established constitutional protection for the right to abortion. There appear to be at least four votes on the court for rolling back that decision, and Barrett could be the fifth.

How she would rule, though, is by no means certain. In 2013, she said it was "very unlikely" that the court would reverse itself: "The fundamental element, that the woman has a right to choose abortion, will probably stand." But she has indicated that not all precedents deserve equal deference. "I tend to agree with those who say that a justice's duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it," she wrote.

The issue of her Catholic faith arose when she was nominated to the appeals court. Some senators grilled Barrett about an article she co-wrote more than 20 years ago, arguing that a Catholic judge who could not in good conscience impose the death penalty should recuse herself. In her confirmation hearings, she said: "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." But it was clear several senators considered her faith-based conservatism a drawback, not an attribute. That's a questionable bridge to cross.

Democrats would obviously prefer a judge with a more liberal view of the Constitution and a more expansive conception of the court's role. But the vagaries of fate have combined to make Barrett the likely next justice. We need to learn more about her.
 

The Day editorial board meets regularly with political, business and community leaders and convenes weekly to formulate editorial viewpoints. It is composed of President and Publisher Tim Dwyer, Editorial Page Editor Paul Choiniere, Managing Editor Tim Cotter, Staff Writer Julia Bergman and retired deputy managing editor Lisa McGinley. However, only the publisher and editorial page editor are responsible for developing the editorial opinions. The board operates independently from the Day newsroom.

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