Dear Oklahoma friends and neighbors:
On September 18, our nation mourned after the passing of US Supreme Court Justice Ruth Bader Ginsburg, a judicial legend, a brilliant mind, a mother, a wife, and a friend and mentor to many. Although not everyone agreed with her judicial philosophy, she impacted our nation as an example of determination and achievement. Last week Justice Ginsburg was the first woman and first Jewish American to “lie in state” in the US Capitol after also “lying in repose” at the Supreme Court, where I was able to pay my respects in person. Cindy and I continue to pray for her loved ones as they process their grief for her loss.
Justice Ginsberg’s death left a vacancy on the Supreme Court, which sets off a chain of events dictated by the Constitution. Presidents have the power to nominate justices, and on September 26, President Trump nominated US Circuit Court judge Amy Coney Barrett to fill the seat vacated by Justice Ginsburg’s passing. If the President puts forward a nominee, the Senate alone has the authority to provide advice and consent. The House has no action or involvement in the process. The Senate will move forward with her nomination, and I will participate in that advice and consent process, which will begin with meeting Senators on Capitol Hill, move to hearings in the Judiciary Committee starting October 12, and if approved by the Committee, eventually to a vote before the full Senate.
Fifteen times in our nation’s history, there’s been a vacancy on the Supreme Court during a presidential election year. Each time, the president has nominated someone to fill the seat that same year. Of those 15 times, eight involved a Senate majority and a president of the same party, and seven were under divided government (different parties in control of the Senate and presidency). In the eight cases of same-party control, the Senate confirmed all but one nominee, Abe Fortas, nominated by President Lyndon Johnson, who had serious ethical and personal financial problems raised during his confirmation process. For the seven times under divided government, only two nominees were confirmed, and the last one was in 1888.
Currently, the Senate Majority and the President are of the same political party, and confirming a Supreme Court nominee during a presidential election year under these circumstances is consistent with Senate precedent. Even though there has been a great deal of political rhetoric about the process, we are following the exact same precedent Democratic Senator Chuck Schumer of New York and then-Senator Joe Biden of Delaware previously affirmed when they were in the same situation.
When considering judicial nominees, I work to determine whether a nominee interprets the text of the law as written by Congress or by our Founders in the Constitution. Congress writes the laws, not judges or justices. Culture does change, and laws should change with our culture. But the law should change through a vote in Congress, not through a novel interpretation of a Supreme Court Justice. When courts change the meaning of a law, they are blurring the clear boundaries of checks and balances in our Constitution. In her remarks last Saturday following President Trump’s nomination, Judge Barrett said of the late Justice Antonin Scalia, who she clerked for, “His judicial philosophy is mine, too.” She went on to say that “A judge must apply the law as written. Judges are not policy makers and must be resolute in setting aside any policy views they might hold."
Then a law professor at Notre Dame, Judge Barrett was most recently confirmed with my support in October 2017 as a judge on the US Court of Appeals for the Seventh Circuit, so a great deal of the background work for her nomination is already complete. Judge Barrett graduated first in her law school class at Notre Dame. She is highly qualified, experienced, and has the proper temperament, attitude of fairness, and legal scholarship to make her a stellar nominee. Her education, experience, and personal convictions all play an important role in her judicial philosophy as a strict constructionist. If confirmed to the Supreme Court, she will be the first mom with school-age children to serve on the Court, and she will replace Justice Ginsburg on the Court as the only current Justice to graduate from a top-level university that isn’t Harvard or Yale.
Judge Barrett is a also a member of the Catholic Church and has not been shy to share her strong faith background. Interestingly, the subject most called into question during her previous Senate confirmation was not her exemplary qualifications, her top-notch education, her preparedness to serve, or her reasoned application of the law. It was her Catholic faith. In America, you may have a faith and live that faith or have no faith at all, in private and public life—whether you’re Catholic like Judge Barrett, Jewish like the late Justice Ginsburg, or any other faith.
During her previous nomination hearing, Judge Barrett was challenged by Democrat Senators to explain her faith by asking questions like “are you an ‘orthodox’ Catholic?” Another Senator was concerned about Judge Barrett because the “Dogma lives loudly in you.” They suggested she could not be an impartial judge because of her faith, a destructive and incorrect accusation they are pursuing again. Article VI of the US Constitution is clear:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
We do not exclude people from serving our nation because of their faith or lack of faith. In our nation, all of us—including judges and senators—have the ability to not only worship but to freely exercise our faith. I hope this confirmation process will not continue to devolve into a personal attack of Judge Barrett, her family, or her faith. I spoke about my concerns with challenging Judge Barrett’s faith as a measure of her qualification to serve on the Court in a speech on the Senate floor on September 30.
CLICK HERE to watch my floor speech this week.
Senate Judiciary Committee Chairman Lindsey Graham of South Carolina announced this week that the Committee plans to begin four-days' worth of hearings on October 12th, and I hope my fellow Senators on both sides of the aisle will focus on Judge Barrett’s legal and judicial background as well as her rulings and opinions, rather than partisan political attacks trying to tear her down. In the 1980s Americans watched Senate Democrats destroy Robert Bork, then watched the dramatic and painful hearing of Clarence Thomas in the early 90s—both under the leadership of then- Senate Judiciary Committee Chairman Joe Biden. Justice Kavanaugh’s deeply personal and tumultuous hearing was just two years ago.
Some people try to predict how a nominee for the court will rule on certain topics; that is speculation. During his hearing, Democratic Senators said they believed John Roberts could destroy health care in America:
Thankfully, from my point of view, you lost the case. If you had won it, it would have put millions of American consumers and families at risk of losing coverage for necessary health care.
Yet Chief Justice Roberts was the deciding vote to protect the Affordable Care Act years ago. Justice Gorsuch has been an outspoken advocate for Tribal sovereignty, and he voted with Justice Ginsburg to expand LGBT rights in the Bostock case earlier this year. In fact, Justice Kavanaugh voted with Justice Ginsburg 67 percent of the time last year.
Judge Barrett’s hearing and the potential media circus around it will likely be noisy, and she will also likely have hundreds, if not thousands, of questions for the record to answer in writing following her hearing. Through her career Judge Barrett has carried with her the wide and often very public support of colleagues, fellow professors, and others who agree with her judicial philosophy, even people who don’t necessarily agree with her, and people who know her well.
Of their colleague, Judge Barrett, every full-time member of the law faculty at Notre Dame wrote in a letter supporting her confirmation to the Seventh Circuit in 2017:
As a scholarly community, we have a wide range of political views, as well as commitments to different approaches to judicial methodology and judicial craft. We are united, however, in our judgment about Amy. She is a brilliant teacher and scholar, and a warm and generous colleague. She possesses in abundance all of the other qualities that shape extraordinary jurists: discipline, intellect, wisdom, impeccable temperament, and above all, fundamental decency and humanity. Indeed, it is a testament to Amy’s fitness for this office that every full-time member of our faculty has signed this letter.
A group of more than 70 law professors from around the nation, including President Obama’s Acting Solicitor General Neal Katyal, stated in a letter supporting her confirmation to the Seventh Circuit in 2017 that:
In short, Professor Barrett's qualifications for a seat on the U.S. Court of Appeals for the Seventh Circuit are first-rate. She is a distinguished scholar in areas of law that matter most for federal courts, and she enjoys wide respect for her careful work, fair-minded disposition, and personal integrity. We strongly urge her confirmation by the Senate.
I look forward to meeting with Judge Barrett personally in the coming weeks to learn more about her and the way she would like to serve on the highest court in the land. As the process moves forward, please continue to reach out to my office, if you need assistance with a federal agency or to share your ideas, opinions, questions, and concerns on this or other topics. Regardless of the noise in Washington, my staff and I are here to serve all Oklahomans, and we remain honored to do so.
In God We Trust,
James Lankford
United States Senator for Oklahoma
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