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Legal Commentary

: Althouse

"The confirmation process has made ever clearer to me one of the fundamental differences between the federal judiciary and the United States Senate. And perhaps the most acute is..."

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"... the role of policy preferences. It is the job of a Senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give into them. Federal judges don?t stand for election, thus they have no basis for claiming that their preferences reflect those of the people. This separation of duty from political preference is what makes the judiciary distinct among the three branches of government. A judge declares independence, not only from Congress and the President, but also from the private beliefs that might otherwise move her. The Judicial Oath captures the essence of the judicial duty. The rule of law must always control."

Said Amy Coney Barrett in her short speech after she was sworn in by Justice Clarence Thomas at the White House ceremony last night. Transcript.

I read that as more than an acceptance of the confirmation process that has developed in which Senators openly vote their policy preferences rather than truly or fakely premising their vote on the nominee's character and credentials. She's saying that Senators have a duty to take "policy goals" into account. Did she mean to say that the confirmation vote ought to embody the Senators' policy preferences? Or did she only mean that when Senators do their legislative work, they must consider policy ? which is what corresponds to the judicial role and contrasts with it (as judges must refrain from considering policy)? It's ambiguous! I hope to get clearly written opinions from our new Justice, so I don't like running into ambiguity in the first thing she says as a Justice.

Full post as published by Althouse on October 27, 2020 (boomark / email).