Many liberals are worried about the conservative direction the Supreme Court could take if Judge Amy Coney Barrett is confirmed by the Senate. Harvard Law Professor and constitutional scholar Noah Feldman says he shares their concerns, but he's written an op-ed in Bloomberg vouching for Barrett, whom he once clerked with on the Supreme Court. Feldman spoke with GBH All Things Considered host Arun Rath. This transcript has been edited for clarity.
Arun Rath: So back in the '90s, Judge Barrett clerked for the late Justice Antonin Scalia and you clerked for retired Justice David Souter. Barrett, like Scalia before her, is what's known as a textualist when it comes to interpreting the law. I know it's hard to explain these things briefly, but as briefly as you could for a layman, could you tell us what that means?
Professor Noah Feldman: Sure. Judge Barrett is two things. Just like Scalia was, she's an originalist when it comes to the Constitution, which means she thinks you should interpret the Constitution according to what the people who wrote it and ratified it, believed that it meant. Justice Scalia liked to say he believed in a dead Constitution, not a living one. I don't agree. I think our Constitution is alive, and if it were dead, that would not be good for us.
When it comes to interpreting statutes, Judge Barrett is a textualist, like Justice Scalia. That means she thinks that when you're reading the meaning of a law, you should not ask what the intention was of the legislature that passed it or what its purpose is — you should just look at the words. I don't agree with that, either, since I think it's almost impossible to make sense of words without context. Furthermore, it makes no sense at all to try to understand the meaning of the statute without figuring out what it was supposed to do.
Rath: It's also something different, at least subtly different, from what other people talk about in terms of trying to understand what the Founding Fathers wanted, their intent. Textualism is about the words, right?
Feldman: Exactly. To dramatize that, the most famous and important textualist decision ever made by the Supreme Court just came this summer. That was the LGBTQ anti-discrimination law case where Justice Gorsuch — a Trump appointee, very conservative, and a textualist — said that because the Title VII anti-discrimination law says you can't discriminate because of sex, those words included discrimination against gay and trans people. That's even though in 1964, when the law was written, he conceded that people who passed the law weren't thinking about gay and trans people. He said it doesn't matter what they meant, doesn't matter what they intended. This is what the words actually mean. Now, a lot of other conservatives were angry and said that's not really what textualism is, but that's an example of how textualism doesn't have to be inherently conservative or inherently liberal.
Rath: Judge Gorsuch made another ruling in a Native American case where it was the same thing, really — these are the words that were in the treaty, so you should stick by it.
Feldman: Exactly, another case where he joined the court's four liberals. That was a case where basically everyone agreed that Congress had the power to break the treaty. But Gorsuch said, if you look at their words, they really haven't. Now, if you look at the history of how Congress has treated Native American tribes, including the Creek Nation, that was an issue there. It's a pretty dreadful history. It's definitely true that Congress was trying to break their sovereignty. But Gorsuch said, well, they didn't use the magic words. As a textualist, therefore, I'm going to hold in favor of the tribe.
Rath: So in regards to Judge Barrett, in your op-ed, you wrote that Barrett is qualified to serve on the Supreme Court. Could you run through the boxes that you ticked off, the list of essentials, her qualifications?
Feldman: Absolutely. And I want to be clear, whether she's qualified or not is a separate question from whether the Democrats should vote to try to confirm her or not. There are plenty of reasons having nothing to do with her, including the hypocrisy of Senate Majority Leader Mitch McConnell's practice of not confirming or not even giving a vote to Merrick Garland. Now he's going forward with Judge Barrett under pretty similar circumstances — in fact, circumstances where it's even more obvious that they should have gone forward on Garland. So, I'm not talking about that. But what I am talking about is her personal qualities.
First, she has a first-class legal intelligence, demonstrated certainly in her years as a law clerk when I knew her, but also subsequently in her academic writings and her teaching. Second, for those who care about judicial temperament, she has a very judicial temperament. I myself don't really believe there is such a thing as judicial temperament. Some of our greatest justices on the left and the right have been kind of irascible, nasty people. I think if Justice William Douglas, for example. But a lot of people think temperament really matters, and she's got a fantastically judicial temperament. She's calm, she's thoughtful, she's kind. I don't think I ever heard her raise her voice in a disagreement in a whole year of a lot of intense disagreements. So she has that.
And last but not least, she's a conscientious person who will interpret the law to the best of her abilities, consistent with her jurisprudence. She's not just going to ask herself, What's the political outcome I want? She's going to ask, Where does my method of judicial interpretation lead me? And, you know, that's what Judge Gorsuch did in the LGBTQ case. He's very conservative, but he ended up on the side of LGBTQ rights because he thought that's where it took him. Sometimes that gets you a conservative result, sometimes it gets you a liberal result. It's not a guarantee in any way. But I do believe that on either side of the political spectrum, we're better served by justices who follow conscience and logic rather than just seeking a political outcome that they like in an individual case.
Rath: Now, as you pointed out, there's the question of Judge Barratt's qualifications being separate from the question of the propriety of having a vote at this point. Setting that aside, do you think that it's appropriate for the Senate to be having a confirmation hearing for anybody under these circumstances?
Feldman: The first thing I would say is it was wildly inappropriate, in my view, for the Senate not to hold a vote on Judge Merrick Garland, who is also extraordinarily well-qualified to be on the Supreme Court, and had many more years of judicial experience than Judge Barrett. That was already pretty disastrous.
I think when it comes to now, Vice President [Joe] Biden said at the debate, people are already voting, and that's a reason not to go forward. I can hear that argument. I think there's a strong political argument to be made that when we're at a moment where the future of the country is really up for grabs in an election, that's not the time for a Supreme Court nominee to be nominated and confirmed.
But I think it's also important to note that as a matter of constitutional right and power and authority, it's within the authority of the president to nominate right up until the last day of his term, and it's within the power of the Senate to confirm. So it's not like this is a breaking of the Constitution. We're having really an argument about the morality of it, and argument on morality says that when the public is about to choose, we should wait for the public to choose. The argument on the other side says the public already chose and elections have consequences. We have a Republican Senate and we have a Republican president, and I'm very unhappy about both of those facts, but those are the reality.
Rath: So with that — and you've cited Barrett's decency, and what you regard [as] her brilliance as a jurist — but with everything that you just said, is it wrong to hold a vote in the Senate under these circumstances?
Feldman: Look, as I said, I think these really are separate questions. If it were up to me, the Senate wouldn't hold a vote. But we know the Senate is going to hold a vote. If I were dictator of the world the way Donald Trump seems to wish he were, I would not want there to be a vote now, and I would want the Democrats to have enough senators to block Judge Barrett, but that's not the world in which we live. There's going to be a vote, and it seems overwhelmingly likely that she's going to be confirmed.
That raises the separate question of how Democrats should act during the hearings. How they vote is essentially a symbolic question, but it raises the question of how they should act during the hearing. Here I have to say that in my view, our goal, all of our collective goal — anyone who cares about the republic, everyone who cares that Donald Trump actually leave office if and when he is defeated in the election, everyone who doesn't want the Supreme Court to give the election to Donald Trump — should really think long and hard about what message we want to send about the purpose of the Supreme Court.
If we send a message that we think the Supreme Court is just about partisan voting the way Congress is, then there's a lot less reason for Republican nominees on the court — like Justice Gorsuch, like Justice Kavanaugh, and like Justice Barrett if she's confirmed — to not say, OK, well, we'll just vote on the Trump side. But we don't want that. We want them thinking, No, we're not here for the Republican Party, we're here for the Constitution and we're here for the country, and we want to make decisions like Justice Gorsuch did in the LGBTQ case, decisions based on principle.
To my mind, if that's the value that we uphold — and in this moment, I believe it is the value we should be upholding — I think that the confirmation process should be emphasizing, I think the questions should be focused on following the law, the questions should be focused on not being partisan, emphasizing that that's the job of a justice and the purpose of the Supreme Court. And we should remind everybody in this miserable moment in our history, this low moment in the history of our republic, that the Supreme Court is not supposed to be that way. I would like to see that as the central theme of the confirmation hearings, especially given that the reality seems to be that Judge Barrett is overwhelmingly likely to be confirmed.