Amy Coney Barrett to Say Courts ‘Should Not Try’ to Make Policy in Opening Remarks to Senate

POLITICS & POLICY
Judge Amy Coney Barrett at an event to announce her nomination to the Supreme Court at the White House in Washington, D.C., September 26, 2020. (Carlos Barria/Reuters)

Supreme Court nominee Amy Coney Barrett plans to say that courts “should not try” to make policy, and should instead leave policy decisions to political branches of government, according to her planned opening statement for her Senate confirmation hearing.

“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People,” she plans to say in opening remarks on Monday. “The public should not expect courts to do so, and courts should not try.”

Barrett will also tell the Senate Judiciary Committee that “courts are not designed to solve every problem or right every wrong in our public life.”

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Confirmation hearings for the 48-year-old Notre Dame law professor are set to begin Monday, amid a tense partisan battle playing out just weeks before the November 3 election.

Barrett plans to say she has sought to keep the same perspective as her mentor, the late Justice Antonin Scalia, for whom she was once a clerk. She says he was “devoted to his family, resolute in his beliefs, and fearless of criticism.”

“There is a tendency in our profession to treat the practice of law as all-consuming, while losing sight of everything else. But that makes for a shallow and unfulfilling life,” Barrett will say. “I worked hard as a lawyer and a professor; I owed that to my clients, my students, and myself. But I never let the law define my identity or crowd out the rest of my life.”

Barrett’s planned remarks say that it was Scalia’s “reasoning” that shaped her and that his “judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were.”

A conservative Catholic mother of seven children, Barrett spends much of the remarks focused on family. “I am used to being in a group of nine—my family. Nothing is more important to me, and I am so proud to have them behind me.”

The hearings will include hours of questioning on Tuesday and Wednesday. Senate Judiciary Committee Chairman Senator Lindsey Graham (R., S.C.) said in an appearance on Fox News on Sunday that he expects Barrett to be confirmed by the Tuesday before Election Day.

President Trump’s move to nominate Barrett to fill the vacancy created by the death of Justice Ruth Bader Ginsburg has set off a fight between both parties as Democrats have tried, unsuccessfully, to keep the confirmation process from moving forward in retaliation for what they say is hypocritical behavior by the GOP.

Republican senators in 2016 would not move forward with the confirmation process for then-President Barack Obama’s nominee Merrick Garland after the passing of Justice Scalia. However, Senate majority leader Mitch McConnell has said his current stance is not comparable to his position from 2016, as the Senate at that time was held by Republicans while the president was a Democrat.

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