Let me begin by saying that this blog post is not a defense of Barrett's nomination. I think any nomination should have waited until after the election. Forcing Barrett through, even if the GOP goes on to win the next election puts an asterisk next to her name that I dislike and threatens both her credibility and that of the court. That she would want to ascend to the court under such circumstances makes me wonder about her, but, the idea of refusing nomination to the court would probably also make me wonder about her, so that is what it is. I will say that I think she was selected more for her rabid originalism and her writings both vis-a-vis the Affordable Care Act and Abortion Rights (which most people shorthand to Rowe v. Wade but given how the rights as they exist now are much more defined by Planned Parenthood v. Casey, I'm calling them Abortion Rights) than she was for her qualifications, but I think that's different than saying she's not qualified. Which brings me to my point.
She's spent 22 years working with the law, 20 of it analyzing and reviewing briefs and decisions regarding the constitution. That seems like a reasonable degree of qualification to me.
My point is that I dislike, and it raises my hackles, when someone criticizes her by saying that she isn't qualified for her job. She has only sat on the federal bench for 3 years and was only a litigator for two years, but there are myriad kinds of qualifications. After law school, she clerked for two federal courts, one was SCOTUS. After that she went to a white shoe law firm where she worked on at least one Supreme Court brief. After that, she went into academia, where she taught constitutional law for 17 years. In those 17 years she's won multiple acolades and awards for her scholarship and instruction and been published myriad times, both for general consumption and in journals. And what she gets published for is analysis of the meaning of and jurisprudence around the Constitution. That's a qualification. It's a pretty impressive one. After that, she sat on the federal bench for three years. So she's spent 22 years working with the law, 20 of it analyzing and reviewing briefs and decisions regarding the constitution. That seems like a reasonable degree of qualification to me.
I understand she's never been a judge. But one of my favorite judges of all time is Earl Warren, the justice to whom we owe thanks for school desegregation, actually giving black people the right to vote by ending things like poll taxes, the rule suppressing illegally obtained evidence and confessions, and (I think) Miranda rights. He never sat on a federal bench and the vast majority of his time as a lawyer was in positions like DA and AG of California where one doesn't actually spend so much time practicing law as you do making political decisions regarding the practice of law. And when he was appointed, he'd been Governor of California more recently than he'd done much noteworthy as an attorney.
So qualifications come in different forms. And I don't have an issue with the form Justice Barrett's took. I have an issue with the process and method that got her there. But I think she holds, at least a legitimate qualification to sit on the chair she holds.
I can't help but wonder if people would ask if a jurist with 22 years experience working with the Constitution and a pair of testicles would have people asking if he were qualified enough to sit on the Supreme Court.
But here's what really sticks in my craw: I can't help but wonder if people would ask if a jurist with 22 years experience working with the constitution (just most of it academic) and a pair of testicles would have people asking if he were qualified enough to sit on the Supreme Court. I feel like he'd face a lot less of that criticism. And gender inequity bothers me. It's my years of working in employment, I guess.
If you have questions about how to develop objective measurements for qualifications that overcome possible biases for race, gender, or other issues, call us. We can help.