Before President Donald Trump nominated Judge Amy Coney Barrett to a seat on the Supreme Court, Sen. Lisa Murkowski said she opposed holding a Senate confirmation vote so close to a presidential election.
She subsequently said that while she objected to the process, she did not rule out voting to confirm a nominee if the Senate decides to act, as it now appears will be the case.
“I do not support this process moving forward,” she said. “Now, having said that, this process is moving forward with or without me.”
After Judge Barrett was nominated, the senator said she would meet with her. It was a positive sign, especially because some of her Senate colleagues are refusing even to do that — an unusual step that only seeks to disrupt the process.
Now that the confirmation process is moving forward, we urge Sen. Murkowski to weigh Judge Barrett’s sparkling qualifications and make a judgment based on that criteria alone. If she does, there is little doubt the senator will cast her vote to confirm, just as she voted to confirm Judge Barrett to the U.S Court of Appeals for the 7th Circuit in 2017.
As a judge on the 7th Circuit, a professor at Notre Dame Law School, and a clerk for the late Justice Antonin Scalia, Judge Barrett has consistently shown devotion to the foundational responsibility for any judge: ruling based on the plain text of the Constitution and the law.
Critically, the role of a judge in our system is to leave one’s personal views at the door and interpret and apply the law as written, not legislate from the bench. As Sen. Murkowski well knows from a lifetime in and around politics, we elect Congress to make law, not judges.
Under our system of government, the judiciary plays a critical role in upholding the separation of powers, protecting fundamental rights, and defending the Constitution. All judges have a North Star that guides their decision-making. And we know that judges who aren’t guided by constitutional principles will be guided by something else — an ideology, devotion to a cause, or the ever-shifting winds of public opinion.
I’m not naïve. I understand that there is always a political element to judicial nominations, and judges and justices are confirmed as part of a political process.
But when Supreme Court justices make judgments, they should always be based on the plain ordinary meaning of the Constitution and the law.
Federal judges decide cases and controversies. They do not pontificate on the issues of the day. They do not stand for election. They do not vote on legislation. Asking nominees to commit to certain case outcomes as part of a litmus test seeks only to politicize the Court and belies the fair and independent nature of the judiciary.
As Judge Barrett told senators during her 2017 confirmation hearing for the 7th Circuit, “a judge may never subvert the law or twist it in any way to match the judge’s convictions.”
In arguing that no nomination should move forward at this time, Sen. Murkowski has offered an inappropriate political answer to a foundational constitutional question. But the constitutional question outweighs the political.
The Constitution empowers the president to select a nominee, and the president and Congress have decided to move forward with the nomination and confirmation process. The focus now should be entirely on the quality of the nominee and the role of the court, not partisan politics within the process.
Sen. Murkowski’s political responsibility is to the people of Alaska, who elected her to represent their interests. We ask that she live up to that responsibility by supporting Judge Amy Coney Barrett, a superbly qualified nominee to the U.S. Supreme Court.
Ryan McKee is state director of Americans for Prosperity-Alaska.