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Refocusing the debate on Justice Amy Coney Barrett’s confirmation to the Supreme Court

| Wednesday, November 4, 2020

Dear Notre Dame,

I write to address the campus debate and multiple open letters currently circulating regarding the nomination and confirmation of Justice Amy Coney Barrett to the United States Supreme Court (“SCOTUS”). To promote transparency, I am a graduate of the University of Notre Dame, a practicing private sector attorney, a proud Democrat and I voted for Joe Biden. I also endorse the confirmation of Judge Barrett.

To begin, I urge the Notre Dame community to criticize and then forgive University President Fr. John Jenkins for the dereliction of leadership he demonstrated during the Rose Garden nomination event. Notre Dame’s president is a man of God and a mortal man. He sins and makes mistakes. I have no doubt Jenkins is sincere in his apologies before God and our community. He made a mistake, apologized for that mistake and is atoning for that mistake. I disagree with Jenkins on policy issues, but he is a credible and well-intentioned man. His years of committed stewardship of Notre Dame weigh in favor of forgiveness and moving forward. I find calls for Jenkins’ resignation disturbing and, frankly, unprincipled rabble-rousing.

I will now address Justice Barrett. Members of our community have invited me to sign “open letters” denouncing or otherwise asking Barrett to withdraw from the confirmation process. I have not signed any of these letters. I do, however, applaud anyone holding a reasonably held belief who commits their convictions into writing.

Nevertheless, campus is having the wrong debate, conflating politics, personal religious beliefs and jurisprudence. I humbly submit the Notre Dame community should refocus the debate to: one, eliminating the politicization of the Nation’s independent judiciary, starting with Senate precedent; and two, voting.

Barrett and I hold diametric views on most legal issues. Our disagreement, however, is not “liberal” or “conservative” in the political sense. Rather, our differences relate to the manner in which we interpret the Constitution. Barrett believes in originalism, and I see the Constitution as a living document. Both interpretations are valid and reasonable.

The Constitution brings me to why I endorse Barrett’s confirmation. The Constitution endows the U.S. president with the power to nominate individuals to the SCOTUS. Likewise, the Constitution imposes upon the Senate the duty to provide advice and consent on the president’s nominee. The Constitution does not identify qualifications for SCOTUS Justices, and the Constitution does not strip either the president or the Senate of their respective powers in election years.

In point of fact, the only qualification to which Justices have ever been held is whether they are eminently qualified to serve on the SCOTUS. Barrett is eminently qualified to serve on the SCOTUS and deserves confirmation. Although I regret deeply that President Trump and GOP Senate leadership hold their respective powers, both parties have exercised their constitutional duties appropriately.

Now follows the counter-argument: Based on Senate precedent, it is an election year, and the voters should choose the president who will fill the late Justice Ruth Bader Ginsburg’s seat. Senator Mitch McConnell argued this point in 2016 when President Barrack Obama nominated Judge Merrick Garland to the SCOTUS. Irate Democrats are now arguing the same point in 2020, calling Senator McConnell a hypocrite for breaking with Senate precedent. In response, the GOP argues that unlike in 2016, the GOP presently controls the White House and Senate — distinguishing 2016 from 2020.

Let us be clear: Senate precedent means nothing. Senate precedent is not law, and it does not derive from the Constitution. It is simple politicking. As an attorney, nothing makes me more apoplectic than seeing political interference in our independent judiciary. Unfortunately, such interference is now commonplace. Both parties share the blame. (Although, President Trump’s politicization of the Rule of Law is a horrifying development).

We are a nation of laws. We are not a nation of whoever holds power interpreting Senate precedent. Neither Democrats nor Republicans are correct to rely on Senate precedent. I, for one, do not want the politicization of Senate precedent to overshadow the Constitution and become the new norm for either party. Under the Constitution, President Trump and the GOP “won this round.” Amy Coney Barrett deserves to be Justice Barrett.

There will be other rounds, however, and I implore the Notre Dame community to refocus their attention to the Constitution and refuse partisan politics to jeopardize the integrity of our independent judiciary.

At bottom, vote.

Sam Mitchell

class of 2013

Nov. 2

The views expressed in this Letter to the Editor are those of the author and not necessarily those of The Observer.

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