October 8, 2020
In 2017, the CCAR adopted a resolution on “Judicial, Executive Branch, And Independent Agency Appointees.” The resolution noted that, “Judges at all levels must be committed to defending the Constitution, protecting civil rights and civil liberties, acting within the framework of the precedents set by higher courts, and enforcing Constitutional legislation enacted by Congress when cases come before them.” Today, the legitimacy of the Court and the rights and well-being of all Americans depends on the confirmation of a new justice whose views reflect those enumerated values. Unfortunately, nominee Judge Amy Coney Barrett’s record makes it clear that her elevation to the Supreme Court would significantly jeopardize or adversely affect the most fundamental rights the Reform Movement has long supported.
Few public servants have as great an ability to impact lives as do Supreme Court justices. Supreme Court justices often serve for decades, far exceeding the term in office of the president who appointed them. Despite the opaque nature of the Court, justices rule on cases that have implications for every aspect of American’s lives, from conception to death.
For that reason, the Constitution’s drafters envisioned a process of robust public input on the process of confirming justices. Senators, bound to fulfill their constitutional responsibility to provide “advice and consent” on the nomination, need to hear the voices of their constituents. Nominees submit to public questioning and exploration of their record as a means of determining worthiness for a lifetime appointment on the highest court of the land. Achievements for which the Reform Jewish Movement has fought so hard can be undercut, struck down or overturned by a court prepared to abandoned long-standing legal precedent. It is essential that our unique voice as Reform Jews be heard in the debate over the future of our judiciary.
At the same time, we respect the President’s constitutional right to select a nominee and have weighed in rarely to oppose a Supreme Court nominee. Although we expressed concern, we did not take a formal position on the 2017 nomination of Justice Neil Gorsuch. In contrast, in 2018, we opposed the nomination of now-Justice Brett Kavanaugh, noting that “…as a member of the U.S. Court of Appeals for the District of Columbia Circuit and in his writings, Judge Kavanaugh has evidenced a judicial philosophy that would curtail women’s reproductive rights, weaken workers’ rights, oppose gun violence prevention measures, threaten the protections of freedom of religion by breaking down the separation of church and state, challenge environmental protections, and undermine voting rights. This record puts Judge Kavanaugh in strong opposition to long-held policy positions and core values of the Reform Jewish Movement.” [1]
Confirmation of Judge Amy Coney Barrett, an avowed “originalist” [2] in her legal thinking, would pose a similar threat. In her writings, speeches, and in her rulings since joining the Seventh Circuit Court of Appeals, Judge Barrett has consistently espoused positions that are diametrically opposed to those held by our movement on issues as varied as health care, reproductive health and rights, immigration, LGBTQ justice and more.
Given that the Court this term will hear arguments in the latest challenge to the Affordable Care Act, Barrett’s critique of Chief Justice John Roberts’s 2012 vote to uphold the ACA is of particular concern.[3] Additionally, she has referred to Roe v Wade as “an erroneous decision” and “judicial fiat.” [4] She dissented when appeals courts blocked a statewide parental consent law.[5] She objected to the Obama administration’s accommodation for religious employers under the ACA.[6] She defended the justices who dissented in Obergefell v Hodges, the landmark marriage equality case.[7] And she has expressed restrictive views of existing legal rights of transgender individuals.
Of equally grave concern is Judge Barrett’s comfort with overturning the principle of stare decisis, upholding precedent. In her words, “…stare decisis often functions inflexibly in the federal courts, particularly in the Courts of Appeal. I claim that in its rigid application – when it effectively forecloses a litigant from meaningfully urging error – correction – stare decisis unconstitutionally deprives a litigant of the right to a hearing on the merits of her claims. To avoid the due-process problem, I suggest that courts render stare decisis more flexible; specifically, I propose that courts remove rules – like, for example, the rule that one appellate panel cannot overrule another – that create nearly insurmountable barriers to error – correction.” [8]
Our 2017 resolution makes clear that we will “[o]ppose a nominee if after consideration of what the nominee has said and written, and his or her record, it believes that a compelling case can be made that the appointment would threaten protection of the most fundamental rights which our Movement supports (including, but not limited to, the separation of church and state, protection of civil rights and civil liberties, women’s reproductive freedom, Israel’s security, and protection of the environment).”
The resolution also enumerates the criteria on which we will base a decision to oppose a judicial nominee, including:
- The nominee has emerged as a major and influential ideologue on one or more issues of core concern to our Conference and the appointment would likely contribute significantly to reshaping American jurisprudence or policy in a direction that would positively shape or jeopardize those core values;
- The nomination has engendered a national debate on one or more issues of core concern to our rabbinate so that the outcome of the confirmation or nomination is likely to be perceived as a referendum on that issue and will have significant implications beyond the individual nomination;
- The nominee’s confirmation would shift the ideological or policy balance of a particular court or independent agency on matters of core concern to our Conference;
Judge Barrett’s record across a range of issues indicates that if confirmed her rulings would likely threaten the values enumerated in our 2002 resolution. Judge Barrett’s confirmation would also place an “originalist” majority on the Court, tipping its ideological balance in a direction that is anathema to our views. The nomination has also engendered a national debate over the propriety of the Senate voting only days before a national election. In 2016, the Senate Republican majority refused to consider the nomination of Judge Merrick Garland to the Supreme Court eleven months before a new president was sworn in. The rush to confirmation now potentially undermines the legitimacy of the Senate, the Court, and our democracy overall.
Therefore, the Central Conference of American Rabbis resolves to:
- Oppose the Supreme Court confirmation of Judge Amy Coney Barrett.
- Affirm our earlier call for the Senate to refrain from voting on Judge Barrett’s confirmation until after the inauguration of the next president and senate.
- Urge our members and those whom they serve to convey to their senators to oppose the confirmation of Judge Amy Coney Barrett to the U.S. Supreme Court and voting on any nomination prior to the inauguration of the next president and senate.
[1] https://urj.org/press-room/reform-jewish-movement-calls-senate-reject-nomination-judge-brett-kavanaugh
[2] https://www.npr.org/2016/02/14/466744465/originalism-a-primer-on-scalias-constitutional-philosophy
[3] https://www.nytimes.com/2020/09/20/us/politics/supreme-court-barrett.html
[4] https://www.scotusblog.com/2018/07/potential-nominee-profile-amy-coney-barrett/
[5] https://www.vox.com/21456044/amy-coney-barrett-supreme-court-roe-abortion
[6] https://www.scotusblog.com/2018/07/potential-nominee-profile-amy-coney-barrett/
[7] https://www.youtube.com/watch?v=7yjTEdZ81lI
[8] https://scholarship.law.nd.edu/law_faculty_scholarship/450/