The Liberal Case for Confirming Amy Coney Barrett

By Xavier Bisits

Wednesday, October 14, 2020

 

When Senate Democrats began to participate in Judge Amy Coney Barrett’s confirmation hearings on Monday, the Affordable Care Act was front and center. According to Rhode Island senator Sheldon Whitehouse, Barrett “has signaled in the judicial equivalent of all caps that she believes the Affordable Care Act must go.” In earlier comments, Senate minority leader Chuck Schumer argued she would “vote to eliminate health care for millions.” And although Senate Democrats have been more guarded in their language, Democratic activists haven’t held back in describing her as an arch-conservative. (Per Occupy Democrats, a popular Facebook page, she is a “far-right Handmaid’s Tale wacko.”)

 

As a Democrat, however, I want to make the unexplored liberal case for her confirmation. Is she a progressive in the traditional sense of the word? No. Are there good liberal reasons for supporting her nomination? Absolutely. One can accept these reasons, even while acknowledging Republican hypocrisy on this issue. (Merrick Garland shouldn’t have been denied a hearing, and as Democrats we shouldn’t fight fire with fire by doing the same.)

 

First, it’s important to understand that Barrett has no apparent agenda to overturn the Affordable Care Act (ACA). As others have pointed out, this assertion relies on a handful of sentences in a 10,000-word article in which Barrett discusses whether the concept of “judicial restraint” can be applied to the Roberts Court. Barrett has never ruled on the ACA, Medicaid, or Medicare; nor has she expressed any clear public opinions on this topic. Although she would be likely to rule on a pending challenge to the ACA, this case hinges on a wholly different and far less persuasive criticism from the one she addressed in 2017. Attempting to predict her vote is a fool’s errand.

 

There are also positive liberal reasons to support her nomination. Most important, all evidence points to Barrett being a strong advocate for disability rights. Laura Wolk, the first blind woman to clerk at the Supreme Court, describes how Professor Barrett responded to her raising accessibility issues at Notre Dame: “Laura, this is not your problem anymore. It’s mine.” We should laud any nominee who has demonstrated a keen awareness that the onus for making environments accessible shouldn’t fall on disabled people. As the mother of a child with Down Syndrome, she has ruled in favor of cases around disability rights, including a 2018 case in which she restored Social Security benefits to a woman who had been unfairly denied them by an administrative-law judge.

 

Likewise, Barrett has proven herself willing to rule in favor of plaintiffs claiming race- and sex-based discrimination. In 2018, she ruled in favor of a butcher claiming sexual and racial harassment by male colleagues. That same year, she ruled in favor of a woman seeking back pay from Costco after she took unpaid leave in the face of sexual harassment from a male customer. This year, she upheld a ruling in favor of a park supervisor discriminated against on the basis of being Hispanic. Although much has been made of her 2019 decision to throw out a sexual-assault conviction, this reflects more of a concern with due process, rather than a willful ignorance of the need to uphold decisions affecting civil rights. The claim that she will be an unmitigated threat to “civil rights” is unfounded.

 

Finally, Barrett has shown skepticism of the powers sometimes claimed by law enforcement. This is an important consideration given the tendency of some other judges to apply overly broad exemptions to police officers accused of racist police brutality. The Week describes how her jurisprudence tends to “reach conclusions that are less deferential to law enforcement.” These decisions include one from 2018 and two from 2019 in which she criticized common police search tactics. Her conscience is also clearly disturbed by the death penalty. Rather than interpreting this as an admission of religious bias, we should appreciate her obvious discomfort with the power of the state being used to harm its own citizens.

 

Of course, the most important argument, as well as the one least persuasive to most progressives, is that all liberals should decry Roe vs. Wade. Yet even progressives who fail to see the right to life as a social-justice issue should prioritize democracy over judicial fiat. Everyone knows that the “penumbras” of Roe vs. Wade are based on judicial figments of the imagination rather than constitutional fact. Even Ruth Bader Ginsburg acknowledged that Roe went too far.

 

The sheer arrogance of those who prefer to keep this issue out of democratically elected legislatures is an appalling stain on American liberalism.

 

One would hope that Barrett’s exceptional qualifications would be enough to persuade any liberal. But the evidence for Amy Coney Barrett being an arch-conservative is flimsy at best.

 

Democrats should vote to confirm her.