2020 was already a year full of bizarre and tragic events, as well as one in which the partisan divide in the United States had begun to resemble a tribal culture war rather than an election. But the death of Supreme Court Justice Ruth Bader Ginsburg only 40 days before Election Day has added further fuel to the fire.
President Donald Trump’s nomination of conservative Judge Amy Coney Barrett to replace RBG has cheered Republicans, infuriated Democrats and caused both parties to exchange even more bitter insults and threats.
Not without some justification, Democrats are screaming about Republican hypocrisy. Four years ago, the GOP Senate Majority’s refused to consider, let alone confirm, President Barack Obama’s last Supreme Court nomination — Judge Merrick Garland to replace Justice Antonin Scalia, Ginsburg’s close friend and conservative sparring partner during an election year.
But neither side’s 2016 arguments then stand up well now. As The New York Times Opinion section pointed out, all the arguments made by the Republicans then could be used today by the Democrats, and Republicans could employ the Democrat’s four-year-old arguments demanding that the Senate "do its job" and act on a president’s nominee.
The GOP stance comes across as more blatantly cynical, but if they were being honest, both parties would admit this is about the power that stem from lifetime appointments to the court, not a principled debate about process.
The growth of the high court’s significance is a function of the increased power of the administrative state and the inability of Congress, no matter which party controls it, to act as a check on the executive branch. The Supreme Court has become, willingly or not, a super-legislature which alone has the ability to override a president and his appointees — and Congress, when it acts in an unconstitutional manner.
That is why bruising court confirmation fights, which were once rare, are now a given, no matter how qualified the nominee. In that sense, the confirmation of Barrett, who would theoretically give conservatives a decisive 6-3 majority, is, in the long term, almost as significant as the outcome of the election. It could seal the right’s dominance of the judiciary for decades.
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As was the case with Trump’s two previous nominees, qualifications —and respect for Barrett among colleagues and legal thinkers is universal — aren’t the issue. Opinions about her confirmation are determined primarily by your view of Trump.
Some fear that confirming a justice who might well be forced to rule on what may well be inevitable challenges to the outcome of an unprecedented election, where as many as half or more votes cast will be done by mail. Trump’s trolling of the media — about whether he will accept the outcome and the normal transfer of power — have made that concern seem more credible and stoked outrage.
Republicans, in turn, say Democrats are projecting their own intentions onto their opponents. They point to the fact that many Democrats have never accepted the legitimacy of Trump’s 2016 victory, have attempted to undermine his administration with what they believe is a conspiracy theory about Russian collusion, and point to Hillary Clinton’s advice to former Vice President Joe Biden: not to concede the election "under any circumstances."
Yet questions about Barrett’s ideology have strayed into discussions about religion. That is not only troubling in and of itself, but ought to particularly alarm Jews, even liberals who are lockstep Democrats and fear a another conservative in the court means the overturning of Roe v. Wade and legalized abortion.
During her 2017 confirmation hearing for the court of appeals bench, where Barrett currently serves, Sen. Dianne Feinstein claimed that the nominee’s Catholic faith played too large a role in her life and that "the dogma lives loudly within you."
The video of what seemed to be a not-so-subtle attempt to impose a constitutionally impermissible religious test of her qualifications for office went viral, and turned Barrett into a conservative folk hero. That, along with her sterling reputation as a thinker and jurist, played a significant role in bringing about her nomination.
And it wasn’t the only instance of Democrats playing the religion card against Trump’s nominees. In 2018, Biden’s running mate, Sen. Kamala Harris, questioned Brian Buescher, a candidate for a federal district judgeship, about his association in the Knights of Columbus.
Her attempt to turn malign his affiliation with a century-old Catholic philanthropic group with millions of members also seemed to smack more of an attempt to anathematize conservative Catholics rather than to conduct a serious debate about issues.
It may be that the Democrats on the Senate Judiciary Committee will not make that same mistake again, and instead, concentrate on Barrett’s questioning of the legal arguments behind Roe and the ruling on the Affordable Care Act.
But elsewhere, the invective against Barrett on liberal Twitter and even the opinion pages of mainstream publications including The New York Times have focused to a disturbing extent on her faith and whether a pious Catholic who opposes abortion ought to be tolerated on the court, or even the public square, in 21st century America.
Newsweek ran a story that alleged that "People of Praise," a small Catholic charismatic group to which Barrett belongs was the inspiration for Margaret Atwood’s "The Handmaid’s Tale." This proved to be false, and Newsweek issued a correction that undermined the entire premise of their story.
Yet that hasn’t stopped it from inspiring an avalanche of Twitter abuse aimed at Barrett that depicts her as a subservient "handmaid" despite the fact that she, a working mother of seven, including two adopted Haitian orphans and a special needs child, is nothing of the kind.
Others have made an issue of Barrett’s 2006 commencement speech at Notre Dame University, her alma mater, where she was a popular law professor. In that speech, she urged graduates to, "Keep in mind that your legal career is but a means to an end, and…that end is building the kingdom of God," which some have compared to the beliefs of Al Qaida.
But not only does that criticism take out of context a rather anodyne sentiment about serving the greater good rather than self-interest, it bears more than a passing resemblance to a speech given by Justice Ginsburg herself.
Ginsburg's speech urged young lawyers to: "Do something outside yourself, something that makes life a little better." This year, in a New Jersey Reform synagogue, her words were chanted in the traditional cantillation, in place of the usual Haftarah reading on Rosh Hashanah, and that video also went viral.
Rather than merely a case of partisan invective, the attempt to cast doubt on Barrett’s bona fides because of her faith goes to the heart of an issue of supreme importance to conservative Christians. They think liberal measures aimed at marginalizing them, or treating their beliefs as unacceptable socially or politically, are attempts to drive them out of the public square.
Disputes about the right of believers to refuse to take part in mandates of the ACA or to be compelled to participate in gay marriages, abridges their constitutional right to free exercise of religion. Like conservative Catholics, they hoped that Trump would appoint judges that would defend their rights — and he has. Those appointments have bound evangelicals to the president’s cause as much, if not more than, his pro-Israel stands.
For liberal Jews, for whom Ginsburg was a pop culture icon as well as role model and feminist heroine, the thought of Barrett replacing her is intolerable. And as partisan Democrats, knee-jerk opposition to Barrett from left-leaning groups like the National Council of Jewish Women is to be expected.
The question here for Jews is not so much whether they will oppose Barrett because they despise Trump, or are ardent advocates of abortion rights. The question is whether liberal Jews are indifferent to the rights of conservative Christians to practice their faith in the public square, rather than only in the privacy of their homes, a stance taken by so many Jewish groups. This cribbed version of the First Amendment also poses a potential threat to Jews.
If they couch their opposition to Barrett in the same terms as Feinstein, and as others using similar tactics, they are also exposing themselves to charges of hypocrisy.
The problem is that willingness on the part of many Jews to defend religious freedom seems to only extend to those who think or believe as we do. That Jews have little sympathy for Christian conservatives whose beliefs are seen as threatening to liberal ideas is unsurprising. But rights are not supposed to be just for our friends and us. They must apply to everyone, or they’re meaningless.
Religious freedom for me but not for thee is not a sentiment that is consistent with the constitution or with the long-term interest of Jewish Americans.
Liberal Jews may not support Barrett, but if they don’t criticize attempts to impose religious tests or counter contempt for her faith, they will be undermining the case for their rights, too.
Jonathan S. Tobin is editor in chief of the Jewish News Syndicate and a columnist for the New York Post. Twitter: @jonathans_tobin