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Forbes featured Haub Law Professor Darren Rosenblum's piece "Amy Coney Barrett, LGBT Rights and Judicial Legitimacy"
Amy Coney Barrett’s nomination to the Supreme Court both violates our core democratic norms related to judicial legitimacy, and reveals contempt for key components of U.S. equality law on LGBT rights.
The Senate Judiciary Committee moved Amy Coney Barrett forward to a full-Senate confirmation vote, violating its own rules – an apt reflection of this “illegitimate nomination,” as Senator Schumer termed it. Trump’s and McConnell’s public announcements — before Ruth Bader Ginsberg’s funeral — were disrespectful as well as hypocritical. They also violated Republican Senators’ prior objections to proceeding with a nomination in the midst of an election, an election tainted by continued evidence of Russian interference. In their long campaign to pack and stack the Supreme Court, Republicans ignored their pledges not to proceed with an election-year nomination.
Decades ago, when civil rights leader turned Supreme Court Justice Thurgood Marshall died, a Republican (George Bush) replaced him with Clarence Thomas. Marshall crafted civil rights as a lawyer, honed the law on affirmative action as a Justice, and then was replaced by someone determined to undermine that precise legacy. Make no mistake, opponents of equality used Thomas’s Black identity to realize their goals. At the time, some Black intellectuals wrote that Thomas’s black-ness would come out as a Justice and serve Black people. This occurred only once, when Thomas objected to cross burnings.
Trump has taken the death of civil rights leader-turned Supreme Court Justice Ruth Bader Ginsburg as a comparable opportunity, choosing Amy Coney Barrett not to empower women, but because he wanted to use her woman-ness to undermine women’s rights, notably abortion. It makes sense, given that Trump’s record on the women’s rights issues that were Ginsburg’s hallmark: far more women have accused him of sexual assault than have been named to cabinet posts. In this sense, Barrett, like Thomas before her, is a top beneficiary of the identity politics so many Republicans assail.
Then the hearings began. Barrett’s opening statement assured the public of her “independence.” While her language in that statement was neutral, observers listened for whether Barrett would say anything to cleanse her nomination of the rank partisanship and possible taint of a quid pro quo at its origin. Would she convey a respect for the fundamental norms of equality that drive our constitutions and our laws? Would she respect precedent, or hew to a muted (to the public, if not the Federalist Society) agenda? Would she even discuss the issues that have led some, such as radio host Michelangelo Signorile to call her agenda extreme? Barrett could have taken Democrats’ questions seriously and answered sincerely and in an engaged fashion.
