Justice Ruth Bader Ginsburg’s name has been invoked throughout the first two days of Judge Amy Coney Barrett’s Supreme Court confirmation hearings. But rather than simply memorialize the late jurist, Senate Democrats would be wise to follow Ginsburg’s legal playbook.
Senate Democrats should employ a similar strategy by using Barrett’s views on the death penalty to expose her lack of fidelity to the rule of law.
As a lawyer in the 1970s, Ginsburg led the ACLU’s Women’s Rights Project. She brought a number of cases as part of a mission to improve gender equality, and she used a sort of legal jiujitsu to achieve success. Her legal strategy was to select cases in which the plaintiffs were male, and her cases challenged laws that denied benefits to men with wives in the military, that rejected Social Security benefits to surviving widowers and that prevented boys from buying alcohol that could be sold to girls of the same age. By demonstrating the unfairness of laws that discriminated against men, Ginsburg was able to persuade the all-male Supreme Court that equal protection under the law extended to gender. Senate Democrats should employ a similar strategy by using Barrett’s views about the death penalty to expose her lack of fidelity to the rule of law.
Barrett threatens to push the court hard to the right on issues such as health care, gun control and abortion. Giving the court a 6-3 conservative majority, Barrett poses a genuine threat to overturning Roe v. Wade, the landmark 1973 case that recognized a woman’s right to an abortion without excessive government restrictions. This isn’t conjecture: Barrett has in the past expressed strong views opposing abortion. As a professor at Notre Dame Law School, she was a member of an anti-abortion group called Faculty for Life. She signed public letters opposing “abortion on demand” and to protect “the unborn.” As a judge on the 7th U.S. Circuit Court of Appeals since 2017, Barrett has ruled in two cases on reproductive rights, and she has written in favor of laws restricting abortions each time.
Barrett has also expressed strong views about stare decisis, the principle that provides that courts should follow case precedent. Barrett has written that stare decisis is a “soft rule,” not an “inexorable command.” She explained in a 2013 Notre Dame journal article: “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution than a precedent that she thinks clearly in conflict with it.” At age 48, Barrett could serve on the court for 40 years, and she will have plenty of time to “enforce her best understanding of the Constitution” — regardless of whether it conflicts with precedent.
During their opening statements Monday, some senators objected to confirming a nominee only a few weeks before a presidential election after Republican Majority Leader Mitch McConnell refused to allow a vote on Merrick Garland, President Barack Obama’s nominee, in 2016. Republicans seem undeterred by these accusations of hypocrisy.
And so perhaps it is time for some Ginsburg-style table-turning. To expose the risk of Barrett’s refusal to follow precedent, Senate Democrats should focus not on when life begins, but on when it ends.
Barrett’s views about the sanctity of life extend to the death penalty, putting her at odds with the other conservative justices on the court. While Barrett has stated that judges “must be resolute in setting aside any policy views they might hold,” she has also has written that Catholic judges should recuse themselves in death penalty cases because they are “obliged to adhere to their church’s teaching on moral matters” and are “morally precluded from enforcing the death penalty.”
Senate Democrats would be wise to probe the apparent contradiction in these statements. Will she set aside her personal views or will she recuse herself in every death penalty case? If she would recuse herself, wouldn’t it be better to choose someone else for this important job? Are there other laws that conflict with church teaching? Is she unable to enforce those laws, too? And if sanctity of life is the overarching principle to which she must adhere, then why may a Catholic judge decide cases about abortion but not about death? Just as Ginsburg exposed discrimination by focusing on the rights of men, Senate Democrats can expose Barrett’s lack of fidelity to the rule of law by exposing her views on the death penalty. Even if Senate Democrats are not successful in persuading their Republican colleagues that Barrett is unfit to serve on the court, they could make the broader case to voters for a president who would appoint justices with less extreme views. By probing Barrett’s refusal to decide death penalty cases, they would expose to the public her inability set aside her own moral convictions and follow the laws of the United States. Throughout the hearings so far, Senate Republicans have sought to (inaccurately) portray their Democratic colleagues as being opposed to Barrett because of her Catholic faith — no matter that Democratic presidential nominee Joe Biden is also Catholic. Perhaps the GOP’s goal is to pander to voters of faith by falsely casting Democrats as the enemy of religion. Or perhaps the goal is to chill Democratic colleagues from asking questions about Barrett’s views on abortion, knowing that around two-thirds of Americans oppose overturning Roe v. Wade and might not like her answers. Rather than be thrown by the Republican strategy, Senate Democrats should follow the example of Ginsburg and flip the debate on its head. By focusing on the death penalty, senators may be able to reveal Barrett’s lack of fidelity to the rule of law.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
