October 10, 2020
Dear Judge Barrett,
We write to you as fellow faculty members at the University of Notre Dame.
We congratulate you on your nomination to the United States Supreme Court. An appointment to the Court is the crowning achievement of a legal career and speaks to the commitments you have made throughout your life. And while we are not pundits, from what we read your confirmation is all but assured.
That is why it is vital that you issue a public statement calling for a halt to your nomination process until after the November presidential election.
We ask that you take this unprecedented step for three reasons.
First, voting for the next president is already underway. According to the United States Election Project (https://electproject.github.io/Early-Vote-2020G/index.html), more than seven million people have already cast their ballots, and millions more are likely to vote before election day. The rushed nature of your nomination process, which you certainly recognize as an exercise in raw power politics, may effectively deprive the American people of a voice in selecting the next Supreme Court justice. You are not, of course, responsible for the anti-democratic machinations driving your nomination. Nor are you complicit in the Republican hypocrisy of fast-tracking your nomination weeks before a presidential election when many of the same senators refused to grant Merrick Garland so much as a hearing a full year before the last election. However, you can refuse to be party to such maneuvers. We ask that you honor the democratic process and insist the hearings be put on hold until after the voters have made their choice. Following the election, your nomination would proceed, or not, in accordance with the wishes of the winning candidate.
Next, the late Justice Ruth Bader Ginsburg’s dying wish was that her seat on the court remain open until a new president was installed. At your nomination ceremony at the White House, you praised Justice Ginsburg as “a woman of enormous talent and consequence, whose life of public service serves as an example to us all.” Your nomination just days after Ginsburg’s death was unseemly and a repudiation of her legacy. Given your admiration for Justice Ginsburg, we ask that you repair the injury to her memory by calling for a pause in the nomination until the next president is seated.
Finally, your nomination comes at a treacherous moment in the United States. Our politics are consumed by polarization, mistrust, and fevered conspiracy theories. Our country is shaken by pandemic and economic suffering. There is violence in the streets of American cities. The politics of your nomination, as you surely understand, will further inflame our civic wounds, undermine confidence in the court, and deepen the divide among ordinary citizens, especially if you are seated by a Republican Senate weeks before the election of a Democratic president and congress. You have the opportunity to offer an alternative to all that by demanding that your nomination be suspended until after the election. We implore you to take that step.
We’re asking a lot, we know. Should Vice-President Biden be elected, your seat on the court will almost certainly be lost. That would be painful, surely. Yet there is much to be gained in risking your seat. You would earn the respect of fair-minded people everywhere. You would provide a model of civic selflessness. And you might well inspire Americans of different beliefs toward a renewed commitment to the common good.
We wish you well and trust you will make the right decision for our nation.
Yours in Notre Dame,
John Duffy, English
Douglass Cassel, Emeritus, Law School
Barbara J, Fick, Emerita, Law School
Fernand N. Dutile, Professor of Law Emeritus
Joseph Bauer, Emeritus, Law School
Jimmy Gurulé, Professor of Law.
Thomas Kselman, Emeritus, History
Catherine E. Bolten, Anthropology and Peace Studies
Karen Graubart, History and Gender Studies
Margaret Dobrowolska, Physics
Aedín Clements, Hesburgh Libraries
Cheri Smith, Hesburgh Libraries
Antonio Delgado, Physics
Atalia Omer, Peace Studies
Eileen Hunt Botting, Political Science
Jason A. Springs, Peace Studies
David Hachen, Sociology
Manoel Couder, Physics
Jacek Furdyna, Physics
Carmen Helena Tellez, Music
Kristin Shrader-Frechette, Biological Sciences, Philosophy
John T. Fitzgerald, Theology
Debra Javeline, Political Science
Philippe Collon, Physics
Cara Ocobock, Anthropology
Amy Mulligan, Irish, Medieval Studies and Gender Studies
Stephen M. Fallon, Program of Liberal Studies and Dept of English
Jessica Shumake, University Writing Program and Gender Studies
Mandy L. Havert, Hesburgh Libraries
Dana Villa, Political Science
Stephen M. Hayes, Emeritus, Hesburgh Libraries
Catherine Perry, Emerita, Romance Languages & Literatures
Olivier Morel, Film, Television, and Theatre.
Darlene Catello, Music
Encarnación Juárez-Almendros, Emerita, Romance Languages & Literatures
James Sterba, Philosophy
Laura Bayard, Emerita, Hesburgh Libraries
Susan Sheridan, Anthropology
Mary E. Frandsen, Music
Mark Golitko, Anthropology
Christopher Ball, Anthropology
Gail Bederman, History
G. Margaret Porter, Emerita, Hesburgh Libraries
Cecilia Lucero, Center for University Advising
Peri E. Arnold, Emeritus, Political Science
Amitava Krishna Dutt, Political Science
Julia Marvin, Program of Liberal Studies
Julia Adeney Thomas, History
Michael C. Brownstein, East Asian Languages & Cultures
Christopher Liebtag Miller, Medieval Institute
Maxwell Johnson, Theology
John Sitter, Emeritus, English
Robert Norton, German
Hye-jin Juhn, Hesburgh Libraries
Denise M. Della Rossa, German
Sotirios A. Barber, Political Science
Pamela Robertson Wojcik, Film, TV and Theatre
Jeff Diller, Mathematics
Ann Mische, Sociology and Peace Studies
Zygmunt Baranski, Romance Languages & Literatures
Robert R. Coleman, Emeritus, Art History
William Collins Donahue, German, FTT, & Keough
Sarah McKibben, Irish Language and Literature
George A. Lopez, emeritus, Kroc Institute
Mark Roche, German
Nelson Mark, Economics
Vittorio Hosle, German, Philosophy and Political Science
Tobias Boes, German
A. Nilesh Fernando, Economics
Fred Dallmayr, Emeritus, Philosophy and Political Science
Greg Kucich, English
Kate Marshall, English
Mark A. Sanders, English
Christopher Hamlin, History
Meredith S. Chesson, Anthropology
Ricardo Ramirez, Political Science
Stephen Fredman, Emeritus, English
Dan Graff, History and the Higgins Labor Program
Henry Weinfield, Program of Liberal Studies (Emeritus)
Mary R. D’Angelo, Theology (Emerita)
Asher Kaufman, Kroc Institute, History
Stephen J. Miller, Music
Janet A. Kourany, Philosophy and Gender Studies
Michelle Karnes, English
Jill Godmilow, Emerita, Film, Television & Theatre
Mary Beckman, Emerita, Center for Social Concerns
Clark Power, Program of Liberal Studies
Richard Williams, Sociology
Benedict Giamo, Emeritus, American Studies
Ernesto Verdeja, Political Science and Peace Studies
Catherine Schlegel, Classics
Margaret A. Doody, English, Professor Emerita
Marie Collins Donahue, Eck Institute of Global Health
David C. Leege, Emeritus, Political Science
Much has been said by both sides when comparing the Garland nomination and the current Barrett nomination. Virtually everybody on both sides has flipped from their position last time to hold the opposite position this time. Both sides are guilty of hypocrisy on this issue. Yes – both sides.
This time around, one of the big arguments being made is that the process is either “unconstitutional” or “illegitimate”. All politicians on both sides are fallible human beings with political motivations behind the positions they hold and those positions are as changeable and as fluid as water, as we have seen this year (and is the case all the time).
Because of this, I do not depend on what any politician says as to what is constitutional. If I want to know whether the current process is constitutional or not, I look to the Constitution itself.
The Constitution says that the president may make a nomination to fill a vacancy – that’s the President’s sole role. The Constitution also says that the Senate will either confirm or reject that nominee – that is its role. However, it makes no mention of any timelines or deadlines, nor maximums or minimums that the process must adhere to or meet. That is, it does not state that a nomination to fill a vacancy must occur within “X” number of days or that the nomination must wait a minimum of “X” days before being made.
Similarly, the Constitution does not state that, once the nomination is made, a minimum or maximum amount of time must pass before it can be acted upon.
Finally, the Constitution makes no provision that proceeding with a nomination or confirmation is disallowed during an election year, regardless of how close to an election it happens. The hyperbole over that issue comes from politicians arguing with each other, not from the Constitution.
Therefore, according to the Constitution, the nomination being made this year is constitutional. That the nomination was made close to the time of election is constitutional. That it was considered and acted on by the Senate this year is constitutional. That is happened shortly after the death of the previous Justice is constitutional. The politicians (and others) who claim that this nomination and confirmation is somehow UN-constitutional are shutting their eyes as to what the Constitution actually says. The process as it is happening right now is both completely constitutional and legitimate.
The next issue touched on in the Notre Dame letter is the idea that the process shouldn’t proceed because “voting for the next president is already underway”. As noted above, the Constitution does not prohibit the nomination-confirmation process from occurring at any time of any year, election or not, therefore the fact that it is occurring does not break any constitutional tenet.
The secondary part of the voting argument is that proceeding with the confirmation now will “deprive the American people of a voice in selecting the next Supreme Court justice”. This simply isn’t the case.
During the 2016 election, the American people “spoke” through their votes and the end result was that Trump won, because he accumulated the needed number of Electoral College votes to do so. Some here will likely vilify the Electoral College and say that Clinton won because she had the greater popular vote. But in real life the popular vote does not decide who becomes President. That has never been the case in any preceding presidential election and it was not the case in 2016. The two candidates (and campaigns) both knew that winning the Electoral College was what was required to be the winner. Both candidates ran campaigns in an effort to win the Electoral College, not the popular vote. No campaign has ever been run to disregard the Electoral College and specifically win the popular vote, because the popular vote does not determine the winner. Both sides knew this going in and both structured their strategies accordingly. One side met the electoral vote threshold to win and the other did not.
The people spoke via election and the process ended win Trump’s win. Trump was elected to serve four years, from January 20, 2017 to January 20, 2021, his legal term of office. Other congresspersons were elected in 2016 and in 2018, to serve their legal terms. The people that spoke in those elections expect that the people they put in office will serve their full terms. That is, even if Biden were to win in November, neither President Trump nor the Congressional members will end their terms on November 4. They continue to serve until the end of their legal terms. During that time, and in particular the time between the election and the next inauguration day, those people are still fully able to carry out the duties that were elected to do.
To put it more plainly, the election on November 3 is how the American people “speak” to determine who governs NEXT, beginning inauguration day 2021, not who governs between now and then.
How a particular nomination plays out depends on the politics of who holds the presidency and the Senate at the time a vacancy occurs. Historically, when the same party controls the two, confirmations occur easily. When they are not are controlled by the same party, there is generally a stalemate.
A stalemate occurred in 2016 when Obama put forth Garland. The Senate, controlled by the other party, waited to see what would happen in the election. Can they legally do that? Yes, the Constitution does not prevent it. It was a strategy and, with Trump’s win, a strategy that put them in the driver’s seat to nominate and confirm a candidate of their own.
In 2020, the same party controlled the presidency and the Senate when the vacancy occurred, so it is easy to see why the nomination has moved forward. The exact same thing would have happened if the Democrats had been the ones in control.
So, the fact that voting in a presidential election is underway while this process is going on is irrelevant. The coming election decides who governs NEXT, not who governs NOW. The people voting now will decide who governs after January 2021 and those politicians can make decisions from that point on for the constituents who put them into office. Trying to truncate the terms of those serving now would disenfranchise the voice of the people who put them into office for specific terms of duty.
The letter’s point ,“Ginsberg’s dying wish was that her seat on the court remain open until a new president was installed”, is also irrelevant to the current confirmation process. Simply put, politicians and judges do not get to make deathbed wishes and expect to have those wishes overrule the Constitution. Nothing in the Constitution says that if someone makes a deathbed wish, it must be honored. Can you imagine the chaos that would ensue, and how quickly the entire structure of government would fall apart, if every politician and judge were able to do that and expect to have his or her wish fulfilled? Wishes are not laws. Forget the wish. Follow the Constitution. As has been pointed out in other articles, Ginsberg herself, prior to this deathbed wish, was in line with what the Constitution says about the timing of the confirmation process.
Finally, there is talk that the court would be “out of balance” if Barrett is seated. First, there is nothing that requires that a Justice be replaced with another Justice of the same, or even similar, philosophical bent. Second, there is nothing in the Constitution that requires the court be “balanced” at all, therefore any change in balance that occurs from seating Barrett on the court does not violate the Constitution. Although liberals see a 6-3 conservative majority as an Armageddon-level of “out of balance”, my intuition says they would not view a 9-0 liberal majority that way. In the end, the constitution does not speak of or define such a concept.
The letter from Notre Dame tries to encourage the suspension of the confirmation process, but does not even begin to consider Constitution when doing so.
Well, you all ought to become students of history. Court nominations have long been based upon varying criteria, some unabashedly political, some on a higher plane of principle. Keep in mind It was our Senate that put on the bench the justices responsible for Plessy v. Ferguson. Remember that one? Separate but equal was ok, basically justifying and institutionalizing Jim Crow. And please don’t argue the point. The court was complicit in treating certain people as second class citizens and for the majority of the people, that was just fine with them. So politics plays a big role in who’s gets to sit on the bench. As for who gets to decide, you can say majority rules. Fine. But this crap about the Democrats undermining the constitutional process because they don’t want a new justice selected just days before an election -well, whose idea was this? Mitch? Eight months to go in Obama’s administration, a lame duck, and Mitch said let the people choose. Well, they chose Barack twice, hadn’t they? And Donald, just once. See how absurd the arguments get. But You might say that the republicans set a precedent Which they have now broken out of political convenience and expediency. So, drop all the high flying rhetoric because those folkS holding power in the US Senate right now don’t give a damn about that. And if you cannot accept that, your being foolish. Don’t like what’s going on? Favor the rule of law over the rule of individuals? Get out their and push for better laws; seek a change to change the constitution. Protect all of us against the nonsense that now aflicts the nation. As people once said, put your money where your moth is.
How unprofessional for fellow “colleagues” to ask their colleague to not consider a job prospect because they don’t like the way it’s being handled, or that it’s undermining the last wish of the former position holder (not everyone would agree with that, either – nor is it absolutely known that it was her final wish) – and then to do it publicly. Shame. I sure hope all of you go for another job and your colleagues gather together to write the same sort of public entreaty. Not sure why any of you believe you have the right to tell or ask any job applicant not to apply based on your values/beliefs.
Surely Judge Barrett recognizes the crass political motivation behind this rush to confirmation. If she truly admires and respects the legacy of Justice Ginsburg, as she claims, then surely she also recognizes that her participation in this process will undermine the integrity and legitimacy of the very court to which she aspires, and will forever taint her presence from the day she is sworn in. Is that the legacy she seeks – forever a political asterisk in the annals of court history?
It is unfortunate that we have arrived at a place where we Americans cannot resist the temptation to impugne the character and motives of those with whom we disagree. The price of our extreme partisanship has cost us peace, civil discourse and the opportunity to cooperate on the complex issues that confront our country. We live in volatile times — it is painful to imagine what could happen to our fragile democracy if various factions come away from this election believing that it was rigged or that the Supreme Court has interferred with the final result. The optics of Judge Barrett’s nomination at this juncture are problematic — particularly because millions of people have already voted, Covid-19 is rampant from coast-to-coast, and some of the most contentious cases will be before SCOTUS early in 2021. As an act of service to the American people, Judge Barrett could request a delay, not because she is not worthy of the nomination, but because she is. Her personal sacrifice would demonstrate her commitment to a lifetime of fair and impartial justice. Who knows? Her leadership might inspire other public servants to take pity on our weary population and stop the insanity.
I agree that she should step down until after the election. HER COMMITMENT TO THE LAW AND HER OWN INTERGRITY ARE AT STAKE.
100 ND faculty are right: withdraw til after the vote is tallied. Anything less will be a stain on Judge Barrett, and the Court. (I only wish there were more CSC names among the signatories.)
It is a sad sad day when a college of this level is controlled by the insane demoncrats that have managed to destroy all the morals of the political process. Many of you may say that is not true. If that is not true then it is pure jealousy that has driven you to such extremes. I’m sure if it was one of you that had the nomination you would be riding the band wagon. Don’t lie, face the facts and realize that I along with many more Americans and veterans like myself don’t give a rats patoot how you feel. I think the appointment should continue regardless of a request from someone to hold nomination until after the election. A letter endorsed by some 100 and few faculty or staff members is a true sign just how far left our learning institutions have gone. I also support President Trump’s comment on cutting financial assistance to these institutions that are following this practice. Also, I am sure if the great College of Notre Dame for some reason was to announce that they are laying off all staff and faculty until after the election these same people putting their names on this letter would be objecting and raising pure hell trying to keep jobs. Simply put the shoe on the other foot. Ya’ll have a good day.
The American people have expressed their voice loudly. Trump was elected to be the president (at least) until January 2021. Any presidential duties up to the end of the current term are solely in the purview of the current president. Also, the people spoke when the Republicans became the majority in the Senate.
If the Democrats had retained control of the Senate at the time of Justice Antonin Scalia’s death, Merrick Garland would now be on the court.