Much of the left will do their worst to destroy Ms. Barrett, personally and professionally just as they tried to do to Clarence Thomas, Samuel Alito and Brett Kavanaugh, but there are some intrepid folks on the left willing to risk the opprobrium of their fellow lefties by proclaiming their belief that Judge Barrett is an excellent choice for the Court.
Harvard Law professor Noah Feldman is a prominent example. Feldman is very liberal and disagrees with Barrett on judicial philosophy, but in a recent article at Bloomberg.com he offers an endorsement that will give his fellow liberals serious heartburn.
The whole article is worth reading, but here are some of the more significant outtakes:
I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions.We might all hope that Democrat senators treat her with respect, but if history is any indication, they won't. One point of their attack has been and will be Barrett's religion. Some Democrats believe that anyone who takes religion seriously is ipso facto disqualified from being confirmed to the bench, but, of course, this is silly.
Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them.
I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year, all of whom had graduated at the top of their law school classes and done prestigious appellate clerkships before coming to work at the court, Barrett stood out.
Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School.
When assigned to work on an extremely complex, difficult case, especially one involving a hard-to-comprehend statutory scheme, I would first go to Barrett to explain it to me. Then I would go to Martinez to tell me what I should think about it.
Barrett, a textualist who was working for a textualist, Justice Antonin Scalia, had the ability to bring logic and order to disorder and complexity. You can’t be a good textualist without that, since textualism insists that the law can be understood without reference to legislative history or the aims and context of the statute.
To add to her merits, Barrett is a sincere, lovely person. I never heard her utter a word that wasn’t thoughtful and kind — including in the heat of real disagreement about important subjects. She will be an ideal colleague....This combination of smart and nice will be scary for liberals.
I don’t really believe in “judicial temperament,” because some of the greatest justices were irascible, difficult and mercurial. But if you do believe in an ideal judicial temperament of calm and decorum, rest assured that Barrett has it.
Barrett is also a profoundly conservative thinker and a deeply committed Catholic. What of it? Constitutional interpretation draws on the full resources of the human mind. These beliefs should not be treated as disqualifying. I hope the senators at her hearing treat her with respect.
And when she is confirmed, I am going to accept it as the consequence of the constitutional rules we have and the choices we collectively and individually have made. And I’m going to be confident that Barrett is going to be a good justice, maybe even a great one — even if I disagree with her all the way.
I want to be extremely clear. Regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court.
Barrett herself explained why in an event last year at Hillsdale College where she was asked "What role, if any, should the faith of a nominee have in the confirmation process?” Her answer was "None."
She went on to explain:
I mean, we have a long tradition of religious tolerance in this country. And in fact, the religious test clause in the Constitution makes it unconstitutional to impose a religious test on anyone who holds public office.She's right about that. Why should one's religion be uniquely problematic? Why not a candidate's ideology or judicial philosophy? Why not a candidate's fervently held personal beliefs on any issue likely to face the Court? To single out religious conviction as uniquely disqualifying is both manifestly unconstitutional (the Constitution prohibits religious tests for high office) and grossly bigoted.
So whether someone is Catholic or Jewish or Evangelical or Muslim or has no faith at all is irrelevant to the job.
I do have one thing that I want to add to that, though. I think when you step back and you think about the debate about whether someone’s religion has any bearing on their fitness for office, it seems to me that the premise of the question is that people of faith would have a uniquely difficult time separating out their moral commitments from their obligation to apply the law. And I think people of faith should reject that premise.
So I think the public should be absolutely concerned about whether a nominee for judicial office will be willing and able to set aside personal preferences, be they moral, be they political, whatever convictions they are. The public should be concerned about whether a nominee can set those aside in favor of following the law.
But that’s not a challenge just for religious people. I mean, that’s a challenge for everyone. And so I think it’s a dangerous road to go down to say that only religious people would not be able to separate out moral convictions from their duty.
We should desire that the most highly qualified people be seated on the Supreme Court, people who have a deep reverence for the Constitution and who see their role as interpreting the law, not making it.
What we don't need are more justices who are little more than partisan hacks deciding cases according to their personal ideological preference, cultural fashion or political expediency.
