![]() Board of Education) but they should have a good reason and a persuasive explanation. Courts can and sometimes should overturn precedent (think, for example, of Brown v. For example, generations of litigants and judges may have relied on it, or the present-day conclusion that it is “wrong” may be almost as doubtful an earlier court’s judgment that is correct. But there are often good reasons not to disturb it. In the minds of a contemporary judge, a previous decision may be a “wrong” interpretation of the law. The judicial doctrine of stare decisis cautions judges to follow their courts’ precedents unless there is a good reason to depart from it. The reason is that-from her writings– her view of precedent seems tailor-made to allow a conservative majority to slash and burn its way through important precedents. As Trump himself said on Friday, an appointment like this may set “the tone of the country for 40 years, 50 years.”Ī Justice Barrett seems to me likely to be more, not less, of a danger to democratic self-government than was Scalia. But they should ask her for her view of precedent, which is vital since, if she lives as long as Ruth Ginsburg did, her tenure as a Justice may last until 2058. ![]() Senators will not get her to discuss specific cases or areas of doctrine. She may or may not be willing to answer, but the questions are essential for outlining what is at stake in this rushed, improper appointment. She seems far less prone to judicial tantrums and rhetorical abuse than the mentor for whom she clerked, the late Justice Antonin Scalia, who concealed personal charm on the bench in favor of vulgar bullying.īut there are short-term and long-term legal and constitutional questions that should be posed. ![]() Not only are such questions always improper, but in this case, they are tactically ham-fisted: Barrett is (as we shall all soon be reminded ad nauseam, and should stipulate now) personally a woman of great character, well-spoken, personally kind, and devoted in her personal life to family and good works. She will be unqualified to serve.īy contrast, she should not be questioned about or opposed based on her religious faith or practice. If she does not so commit, unequivocally and without wiggle room, no Democrat or Independent can vote “aye.” She will have left open the possibility of collusion in the crudest power grab since the Defenestrations of Prague. Did he say anything like that to you in your meetings with him? Regardless of the answer to that question, do you think that statement has increased public confidence in you, or the Supreme Court as an unbiased tribunal? Will you commit to recusing yourself from a 2020 election dispute because of those comments? Will you make that promise here and now? The first question of any Senator to President Trump’s Supreme Court nominee should be: The President has publicly said that he wants you on the Court in anticipation of a case deciding the 2020 election. ![]()
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