Republicans on the Senate Judiciary Committee spent three days of hearings painting Barrett as extremely qualified to serve on the court and a champion of originalist ideology as it relates to constitutional law.
Constitutional originalism is the legal theory that dictates the words of the country’s founding documents are meant to be interpreted exactly as they are written by justices, policymakers and the American public.
Progressives have longed derided the theory, oftentimes arguing the Constitution is an imperfect document written during a different time in American history and should be interpreted based on the spirit of the law rather than the written word.
Barrett, who described herself to senators on the committee this month as taking inspiration from the late Justice Antonin Scalia, another originalist, has written several opinions questioning the legitimacy of the Affordable Care Act and other state laws meant to curb gun ownership during her time on lower courts and as a professor of law at the University of Notre Dame.
“I also clerked for Justice Scalia, and like many law students, I felt like I knew the justice before I ever met him, because I had read so many of his colorful, accessible opinions,” Barrett said during her opening statement
before the committee earlier this month. “More than the style of his writing, though, it was the content of Justice Scalia’s reasoning that shaped me. His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were. Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best known opinions, that is what it means to say we have a government of laws, not of men.”
Markey, one of the upper chamber’s most liberal members, gave a fiery floor speech Monday, accusing Republicans of using the death of Justice Ruth Bader Ginsburg to perform a power grab and rush Barrett onto the court, creating a 6-3 conservative majority likely to ascribe to originalist theory of law.
“You can’t spell shameful without sham,” Markey said. “And that’s what Senate Republicans have turned this Supreme Court nomination process into — a sham.”
Barrett cleared the Senate Judiciary Committee last week and is expected to be confirmed Monday. She is expected to be sworn in during a ceremony at the White House the same evening.