22 Oct, 2020
JERUSALEM WEATHER

The US Senate is currently embroiled in a contentious hearing to consider the nomination of Amy Coney Barrett for a position on the Supreme Court. But to an unprecedented degree, the Democratic Senators are entirely neglecting the candidate and focusing on political considerations, bringing into question whether the highest court in the country remains an unbiased interpreter of the constitution or whether it has fallen irretrievably into the morass of political interests.

Appointing Justice: President’s Constitutional Responsibility

After Justice Ruth Bader Ginsburgh passed away last month, President Trump moved to fulfill his constitutional responsibility of appointing a judge to complete the requisite nine that have constituted the Supreme Court since 1869. He nominated Barrett on  September 26. 

Barrett is eminently qualified, having served on the Seventh Circuit Court since Trump appointed her in 2017. She is considered a textualist and an originalist. After passing the bar, she spent two years as a judicial law clerk, first for Judge Laurence Silberman of the US Court of Appeals for the D.C. Circuit and then for Justice Antonin Scalia of the US Supreme Court.

Objections to Barrett: Political, Not Judicial

But her qualifications have never been the issue.  During the Senate Judiciary Committee hearing on her nomination to the circuit court in 2017, Senator Dianne Feinstein questioned Barrett about whether her religious beliefs as a devout would affect her judicial rulings. “My personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge,” Barrett answered, adding “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.” Feinstein replied, “The dogma lives loudly within you, and that is a concern.” Barrett’s nomination was ultimately approved with all nine Democratic senators voting in opposition.

The focus of the Democratic Senators is twofold: Barrett’s perceived political opinions and the current election. Barrett personally opposes abortion but as a circuit court judge, has never had to directly rule on the issue. In 2012, Barrett signed a letter criticizing the Obama administration’s approach to providing employees of religious institutions with birth control coverage without having the religious institutions pay for it. She has also been critical of the Supreme Court’s opinion ruling that the Affordable Care Act did not violate the constitution.

Democrats generally oppose the nomination and are opposed to filling the court vacancy during the 2020 presidential election campaign.

And these were the talking points for the Democratic Senators. Aides placed photos of Americans who have benefited from “Obamacare” on easels around the room as the Democratic senators began speaking. The Democratic Senators are avoiding questions relating to Barrett’s views on abortion as it is a politicalically volatile subject that could explode in their faces if they identify too closely to it or force the Biden-Harris campaign to openly identify as anti-abortion.

In her opening remarks, Democrat Dianne Feinstein argued that Barrett’s appointment could pose a direct threat to Obamacare.  

“Simply put, I do not think we should be moving forward on this nomination,” Senator Feinstein said, calling for the hearings to be delayed until after the election. Senator Kamala Harris, the Vice Presidential candidate, echoed those sentiments, following that with an inexplicable declaration that any new justice must be formed in the image of Ruth Bader Ginsburgh.

“By replacing Justice Ruth Bader Ginsburg with someone who will undo her legacy, President Trump is attempting to roll back Americans’ rights for decades to come,” Harris said. “Every American must understand that with this nomination, equal justice under law is at stake.”

Appointing Judges: A Biblical Imperative Incumbent Upon All of Humanity

Selecting judges is Biblically mandated and was first performed by Moses after the Exodus from Egypt.

So I took your tribal leaders, wise and experienced men, and appointed them heads over you: chiefs of thousands, chiefs of hundreds, chiefs of fifties, and chiefs of tens, and officials for your tribes. Deuteronomy 1:15

Judge Barrett’s description of the responsibilities of a judge is remarkably similar to the Biblical imperative mandating impartiality in justice.

I charged your magistrates at that time as follows, “Hear out your fellow men, and decide justly between any man and a fellow Israelite or a stranger. You shall not be partial in judgment: hear out low and high alike. Fear no man, for judgment is Hashem‘s. And any matter that is too difficult for you, you shall bring to me and I will hear it.” Deuteronomy 1:16-17

Despite the challenges presented by the Democrats being couched in political terms, Barrett responded with judicial ideals. Barrett’s answer to the Senate committee paraphrased this Biblical concept.

“A judge must apply the law as written, not as the judge wishes it were,” Barrett said, emphasizing that it was elected politicians who make “policy decisions and value judgments”, not Supreme Court justices.

“In every case, I have carefully considered the arguments presented by the parties, discussed the issues with my colleagues on the court, and done my utmost to reach the result required by the law, whatever my own preferences might be,” she said.

Establishing judicial courts is one of the Noahide Commandments incumbent upon all of humanity, as written in Genesis.

But for your own life-blood I will require a reckoning: I will require it of every beast; of man, too, will I require a reckoning for human life, of every man for that of his fellow man! Genesis 9:5

Israeli Lawmaker Praises US Process of Choosing Judges

Moshe Feiglin, leader of libertarian Zionist party Zehut, normally focuses on Israeli politics but this declaration by Barrett earned his praise.

“I watched yesterday thrilled with all the committee’s discussions,” Feiglin wrote on his Facebook page. “I couldn’t stop watching this procedure.

Moshe Feiglin (credit: Facebook)

“Not just because of this inspiring woman, Judge Barrett, who is an amazing woman and bigger than life on any possible scale. Also not because I didn’t know beforehand the American procedure for the appointment of supreme judges.”

“I didn’t watch in order to learn. I watched in order to breathe…”

“The viewing was like oxygen for me. To breathe for a moment the essence of liberty, to breathe a reality in which the citizen is truly the sovereign in his country.”

Feiglin highlighted the stark difference between the selection procedure currently taking place in the US Senate as compared to its counterpart in Israel. Supreme Court Judges are appointed by the President of Israel, from names submitted by the Judicial Selection Committee, which is composed of nine members: three Supreme Court Judges (including the President of the Supreme Court), two cabinet ministers (one of them being the Minister of Justice), two Knesset members, and two representatives of the Israel Bar Association. Currently, there are 15 Supreme Court Judges. Confidentiality applies legally to the committee’s deliberations and they are not published for public review. 

“Imagine in your mind what it would be like, a candidate for the position of Supreme Judge in Israel, who must undergo an intensive public investigation, by the people’s officials, in a manner and to a degree that leaves no citizen in Israel with any doubt about the judge’s values, abilities, and the direction to which the candidate will reroute the nation.”

“Imagine in your soul, a candidate standing under the magnifying glass of each and every one of you, explaining what her husband is doing today or each of her children. Yes, in this resolution Brett spoke to the American nation yesterday.”

“I sat in the murky days of Israeli democracy, of the law in which supreme court judges who are thrust upon us after being selected within closed committees, in a procedure that is for appearances only, devoid of protocols, without any difficult questions, without any real public debate – I sat, and just inhaled oxygen from the American procedure.”

“The Senate Committee will discuss this for more time.”

“ I highly warmly watching this carefully – to get perspective and understand what democracy really is, what the sovereignty of the people means, what is a true consciousness of public servants and how we in Israel have reached such a disconnected judicial system that implicates the public trust. Take a few minutes and watch the American appointment process.”

“You deserve it after all the losers we’ve invested in, to breathe for a moment a little air.”

Fait Accompli

If she passes the committee, the full Senate will vote to confirm or reject Judge Barrett’s nomination. Republicans already have the 51 votes needed to get Judge Barrett confirmed. Judiciary Chairman Lindsey Graham in his opening statements.

“This is probably not about persuading each other, unless something really dramatic happens,” Graham said. “All Republicans will vote yes, and all Democrats will vote no.”