The Briefing, Albert Mohler

Monday, September 28, 2020

This is a rush transcript. This copy may not be in its final form and may be updated.

It’s Monday, September 28, 2020, I’m Albert Mohler, And this is the briefing, a daily analysis of news and events from a Christian worldview.

Part I

President Trump Nominates Judge Amy Coney Barrett to Serve on the United States Supreme Court—What Her Nomination Means for the Court

History was made on Saturday as the president of the United States, Donald J. Trump, used his unilateral authority in that office to nominate Judge Amy Coney Barrett as the newest Justice of the United States Supreme Court. If her nomination is confirmed by the Senate, she would serve as the 115th American to serve on the US Supreme Court, the nation’s highest court. Now, as we’re looking at this, of course, anytime a president nominates an individual to the Supreme Court, it’s big news, and it’s especially big news in recent years. The reason for that is something we come back to time and again on The Briefing. The Supreme Court right now has an outsize importance to what the founders intended. It has an outsize importance to how the court has functioned as related to the other two major branches of government, Congress and the presidency.

The framers of our constitutional order saw that there should be energy in the executive branch and initiation and budget control in the legislative branch. The judicial branch was often defined as the least dangerous branch of government, but as it turns out, over the course of the last several decades, the progressive left in the United States has turned again and again to the courts, trying to accomplish through the courts, often successfully, what they could not successfully obtain by legislation. To put the matter bluntly, they could not get much of this agenda through the Congress, even with their own party members in the Democratic party, so they turned to the court. They use the courts as engines of a social revolution in the United States. I would particularly date this to a series of decisions that culminated in the Roe V. Wade decision legalizing abortion on demand all across the country in 1973.

A similar decision in scope and an ambition came in 2015 with the Obergefell decision legalizing same-sex marriage, again, by judicial fiat across the entire United States. In the case of abortion and same-sex marriage, the left got by judicial decree what it could not get through the legislative process. Now, by the way, here’s an interesting footnote, and we’ll be looking at this further on The Briefing, trying to understand the world around us. For one thing, even right now, with the nomination of Amy Coney Barrett as the newest justice of the Supreme Court, with the issue of abortion front and center, and we’ll talk more about that in just a moment, you will hear many people say that abortion rights are now endangered, but notice, as we shall see, the abortion rights they mentioned are those that have been invented by the court. The court didn’t, by the way, invent them out of whole cloth. The academic left had been working on that for years.

But what’s really interesting. I have seen so much of the coverage in the aftermath of Judge Barrett’s nomination about the fact that the vast majority of Americans support Roe, and we need to look a little closer there. What does it mean? Well, for one thing, it means very little. The reason for that is something that the mainstream media will not often explain. They don’t want to explain why that’s largely meaningless, is because Congress is not elected nationally, it is elected state by state in the Senate and district by district in the House, which is to say that if the Democrats are so sure that a vast majority of Americans supported abortion in 1973, they had a large enough majority in the House and in the Senate, they could have gotten it through, except they couldn’t, because their own house members are elected locally.

In district by district, well, those polls mean absolutely nothing. Those congresspeople would have lost their jobs had they supported a so-called legal right to abortion. That’s why they went to the courts, because they couldn’t get it even by their own majority in Congress. So, they went to the courts as again, the engine of their revolution, and that revolution is now in danger. It’s now in danger precisely because of the nomination that president Trump made on Saturday. Let’s look closer at that nomination. We’re talking about Judge Amy Coney Barrett. She taught for 25 years, or roughly that, at the University of Notre Dame Law School. She graduated from that law school with distinction three times. She was rated as distinguished professor of the year there, at Notre Dame. Her undergraduate degree is from Rhodes College in Memphis.

She’s a native of Louisiana, originally, but she’s also a very well-identified conservative Roman Catholic and conservative jurist. She served as a clerk to the late Supreme Court Justice Antonin Scalia, and she has been closely identified, not only with the late justice, but also with his understanding of how the constitution should be read. Now, that’s often referred to as originalism, strict constructionism or textualism. Now, at the end of his life, Scalia preferred textualism, but through most of his life, his philosophy was described as originalism, meaning that the constitution and every proposition, every phrase of the constitution is to be read by judges now, as it was clearly intended by the words and by the authors of the original.

In announcing his nomination, there in the presence of Judge Barrett at the White House, President Trump called her “one of our nation’s most brilliant and gifted legal minds.” The president went on to say, “She is a woman of unparalleled achievement, towering intellect, sterling credentials, and unyielding loyalty to the constitution.” Very interesting words the president used there. When he used the word loyalty, no doubt a lot of ears would have picked up, but the loyalty he described as being the commitment of Judge Amy Coney Barrett is commitment to the constitution. That was not accidental language. You’ll notice, he didn’t say commitment to rights, a regime of rights that are not articulated in the constitution.

The reason I point to that is because, if this had been a Democratic president announcing a nomination of a liberal jurist to the Supreme Court, the mention would not have been so much to the constitution, but rather to the kinds of rights such as what they described as a right to abortion, right to same-sex marriage that are now included within the official affirmations of the Democratic party. Now, there’s a lot for us to consider here. First of all, as President Trump made his announcement, again, it didn’t come as much of a surprise because Judge Barrett now serving by President Trump’s nomination to the Seventh Circuit Court of Appeals in Chicago had been a front runner for the position that is now held by Justice Brett Kavanaugh, and thus she’d already been vetted, she had already been thoroughly investigated, the White House was already very comfortable with her, but it’s also really interesting when you consider the fact that it is likely, in one sense, that President Trump, and his administration, actually held back Amy Coney Barrett for nomination.

When you are looking at the position that was vacated by the retirement of Justice Anthony Kennedy, Brett Kavanaugh was nominated to take that seat. A man taking the seat that had been held by a man. But when it came to the anticipated absence from the court of Justice Ruth Bader Ginsburg, after all, she was nearing 90 years of age, the reality is that the administration may have held Judge Amy Coney Barrett so that she would be ready for appointment to the seat that had been held by Justice Ginsburg, because it’s not in the constitution, of course, but politically speaking, it would be very difficult for the president to nominate a man to replace a woman who, by the way, had been a feminist icon on the court. It’s also interesting to note that in her response to the President’s nomination, Judge Barrett made very clear the fact that she recognized that Justice Ruth Bader Ginsburg was a trailblazer, but nonetheless, just about everyone in the world, and that’s especially true on the left, understands that the one thing that Ruth Bader Ginsburg and Amy Coney Barrett share in common is that they are women.

Beyond that, they are light years separated in terms of their understanding of the role of a judge and their reading of a constitution. That’s why the left is so very upset, absolutely livid. But as many editorial pages have recognized, the Democrats are really in a difficult position right now, particularly because Amy Coney Barrett is number one, absolutely qualified. There could be no question. And number two, a woman with prominent Democrats in the Senate and the current democratic presidential nominee, Joe Biden, very concerned about the optics of their party opposing a woman just weeks before the national election. But nonetheless, the Democrats are going to oppose her. One very interesting question is whether or not the Democrats will show up for the Senate hearings. A matter of days ago, many in the activist left of the democratic party were suggesting that it would be treason for Democrats in the Senate to participate in those hearings.

But here’s something very interesting about the Senate. The Senate is not the House. The United States Senate is the Senate, often referred to as the world’s most club, a club of 100. The Senate has traditions that are so powerful that, to be honest, even the most liberal Democrat in the United States Senate would have a very hard time being marked absent for such high profile hearings as will be the case of the hearings for Judge Amy Coney Barrett and this seat on the Supreme Court. In accepting the president’s nomination, Judge Barrett said, “If confirmed, I would not assume that role for the sake of those in my own circle, and certainly not for my own sake.” The judge said, “I would assume this role to serve you. I would discharge the judicial oath, which requires me to administer justice without respect to persons, do equal right to the poor and the rich, and faithfully and impartially discharge my duties under the United States Constitution.” Well, the situation is getting more and more interesting by the minute.

Part II

A Game-Changer for the Highest Court: Barrett’s Appointment Would Shift the Court’s Balance and Change History

I want to do a quick review of some of the immediate response to the Barrett nomination by the president. As you’re looking at major newspapers across the country, you had newspapers such as the Washington Post suggesting that the appointment of Judge Barrett could be seismic in a shift on the Supreme Court. Right now, by most calculations, there is a five-four conservative majority on the court, but that includes John G. Roberts Jr, the Chief Justice of the United States, who now functions as, what’s described as the swing vote on the court. The swing vote means the cases could go five-four, either way. A six-three conservative majority, especially with a conservative like Amy Coney Barrett on the court would be far more predictable, and actually far more conservative.

That point was made in another opinion piece published at the Washington Post by David Cole. The headline of this piece was, “This is the Supreme Court’s tipping point.” He is the national legal director of the ACLU, and a professor at Georgetown University’s Law Center. The point is this, there have been so many strategic cases over the course of the last decade. That’s important. The last 10 years that have been five-four, and that means could have gone either way. Just think of the courts’ last term. Conservatives were elated with some five-four decisions, and extremely disappointed by other five-four decisions. A six-three conservative majority on the court would tidy that up a very great deal. David Cole referred to Judge Barrett’s appointment as a tipping point. The Wall Street Journal, arguing it from the other direction, suggested that this appointment by President Trump represents a hinge moment for the judiciary.

As the Wall Street Journal editorial board said, “Judge Barrett’s record and intellect suggests she can join Mr. Trump’s other appointees in reviving core constitutional principles in American law and life.” The Washington Post has an article from the left suggesting that the appointment is a tipping point. The Wall Street Journal writing generally from the right says that it is a hinge moment. Ruth Marcus, liberal columnist for the Washington Post says that it is a bombshell, and she warms of the bombshell consequences if Barrett is approved by the United States Senate. In particular, Ruth Marcus points to one of the main issues of concern for liberals as they look at the appointment of Amy Coney Barrett to the Supreme Court, and that is her view of stare decisis. What is that? That’s Latin for, let the decision stand. It means the power of precedent.

Now, in her hearings before the Senate judiciary committee in 2017, for the seat that she now holds on the Seventh Circuit, Barrett was asked over and over again about whether or not she regarded precedent, and would honor precedent, and even see a case like Roe V. Wade, as what some on the left have called a super precedent. Here’s what’s interesting. She answered basically, affirmatively then. She said that she would respect, as an appellate court judge, the precedence established by the United States Supreme Court. Now, what does that mean? Well, that just means she understands the job of serving on a federal court. Other than the Supreme Court of the United States, every other federal court has no choice but to respect the precedence of the United States Supreme Court. Here’s the point, it is the Supreme Court. More precisely, it is the justices on the Supreme Court who get to decide whether or not an issue before the court should be decided on precedent or on what they see as the more accurate reading of the constitution.

Here’s where the situation has a history. Justice Antonin Scalia, whose intellect was respected by both the left and the right was nonetheless tremendously opposed by the left because his view of stare decisis, or of precedent, was that the constitution is the law of the land and not previous rulings by the United States Supreme Court or any other court. The similar position is now being held on the court by Justice Clarence Thomas. Justice Samuel Alito has the same philosophy in general. But adding a new justice, Justice Amy Coney Barrett to the court under these circumstances would likely indeed tip the balance when it comes to whether or not the court would leave certain precedents to stand, even if a majority of justices believed that those precedents are unconstitutional.

Now, as we proceed through the confirmation hearings, I will take us a bit through some of the legal writings of Amy Coney Barrett when she was a professor of law at the law school of Notre Dame University. But what’s really interesting is that the left has picked out one particular law journal article that now Judge Barrett wrote back in 2013, when she made very clear that the constitution itself leaves no room for anything other than the constitution being the guide, which is to say, if something coming before the court is decided either on the basis of what she would see as the constitution or on the basis of what the court has decided on the issue in the past, she would give preference deference and authority to the constitution. That’s why the left fears her appointments so much, and this also points to something else, and that is, that when it comes to Amy Coney Barrett, we’re talking about someone who has thought through these issues for a matter of decades.

Not by accident was she a clerk to justice Antonin Scalia. It wasn’t an accident that she wrote all of those law review articles and taught those classes when she was at the University of Notre Dame. Not by accident, she made many of the arguments that conservatives have been looking for and listening for, for years, even for decades before she was even appointed to The Seventh Circuit, much less to the Supreme Court, which is to say, we are looking at a game changer here. Conservative Christians need to understand this, we are looking at a game changer. It is likely, if not absolutely certain, that in this context, Amy Coney Barrett is going to be far more forthcoming in her hearings before the Senate judiciary committee than any other recent conservative, not to say liberal appointee to the court. What’s the background to that? The key year, 1987.

Part III

Pro-Abortion Advocates Fear the Future of Roe v. Wade as Barrett Is Nominated to Replace Ginsburg: And an Honest Admission about So-Called “Abortion Rights” from the Left

But before going to 1987, let’s look at an editorial that ran in the days just before Judge Barrett was appointed to the Supreme Court by President Trump. Michelle Goldberg, a columnist of the left, very well-identified with liberalism, moral progressivism. Michelle Goldberg wrote an article entitled, “No More Deception on Abortion.” Now, she cited an argument made by Republican Senator, Josh Hawley of Missouri saying that he would not support a candidate who was not already identified, he’s speaking here as a pro-life conservative Senator, already identified on Roe V. Wade. But now you have Michelle Goldberg saying, the left should demand the same. Writing about an anticipated then-nomination of Judge Barrett, Goldberg wrote, “At this bleak moment for reproductive rights, this counts as good news,” that is, that this is likely to be a public issue.”It might at last end the absurd charade that allows conservative Supreme Court nominees to obscure their opposition to legal abortion.”

Just over six weeks before the election, it should make clear,” said Goldberg, “to everyone what is at stake if Trump is allowed to replace Ginsburg.” Now, what in the world is this about deception? Why is she saying that conservatives, before the Senate judiciary committee, have been deceptive when it comes to their concerns about abortion, or other issues for that matter? Say same-sex marriage, gun rights, or any number of things. Well, the reason is this. Back in 1987, President Ronald Reagan appointed then-judge, Robert Bork, to the Supreme Court of the United States. In the Senate judiciary hearings, at that time, the Democrats basically took Judge Bork apart because he did answer their questions. Even as television, in the live televising by cable of these judiciary hearings was something very new, you had Democrats grand standing on this issue. Within an hour of president Reagan’s nomination of Robert Bork, then-Senator, Edward Kennedy, Democrat of Massachusetts, the torch bearer of the left, at that time in the Senate, gave a speech in which he described what he called Robert Bork’s America.

It was a dark dystopian picture that Senator Kennedy described far outside of reason or rationality. It sounded like a version of what Margaret Atwood would write and her novel, The Handmaid’s tale. But the point is this, it was extremely effective, even more effective was the questioning that came from one particular United States Senator, a Senator from Delaware who was the chairman, the democratic chairman of the judiciary committee, and he claimed is one of the proudest achievements of his life, basically dismantling judge Bork by the questions and the manipulation of the questions that came as he was chairman of The Judiciary Committee. That Delaware Senator was Joseph Biden. Biden and his fellow Democrats destroyed Robert Bork in the course of these hearings by asking him questions that Bork honestly, and quite credibly answered.

They used their position as members of the Senate to be able to say whatever they wanted to say, and that sets up an enormous imbalance. Robert Bork answered their questions. He answered them honestly, and without a great deal of concern for public relations. When it came to the democratic majority in the Senate Judiciary Committee at the time, they saw the opportunity to destroy any conservative nominee who would honestly and directly answer questions about issues of past judicial decisions, academic articles, or future cases that may come before the Supreme Court, because of that, every Republican president, after president Reagan in 1987, instructed their own Supreme Court nominees not to answer questions in terms of these live televised hearings in a way that would give the Democrats on the Senate judiciary committee an opportunity to grand stand. Instead, they were told to answer how they saw the role of a judge and how they saw the constitution and how it should be read and understood.

They could speak of their originalism, they could speak of their convictions about the fact that the constitution should be read as it was written and intended at the time, but they were not to speak of any particular issues that might come before the Supreme Court, and there’s a legitimate issue here, because they should not speak in such a way that it would appear that we’re giving a surety passes to the United States Senate to earn their confirmation that would effectively destroy the credibility of the court. But at the same time, it did lead on the right, to the very same frustration that Michelle Goldberg is expressing here from the left, and that is that the Senate judiciary hearings appeared to be a dance around these crucial questions. Now, this particular dam was broken, in one sense, not by a member of the Senate judiciary committee, but by the 2016 democratic nominee for president Hillary Clinton. In one of the debates with then candidate, Donald Trump, when the Supreme Court came up, Hillary Clinton gave assurances that she would appoint to the court, if elected president, only judges who would vow to uphold Roe V. Wade.

Now, here’s the thing, if it is wrong to say that you believe Roe V. Wade was wrongly decided, and thus should be reversed, it’s also wrong to say that you believe that Roe was rightly decided and should be sustained. Either way, it’s answering the question, but this has meant that, for decades, conservatives have had their hands tied behind their back, so to speak, where the Democrats were not in their liberal appointees to the court. Now, here’s another interesting historical footnote. One person who deserves credit for being right up front about her support for abortion rights, and the fact that she insisted that abortion rights must be included within a constitutional system of government was indeed, Ruth Bader Ginsburg. There will be a particular irony if the woman appointed to her seat is equally candid about her concerns about Roe V. Wade.

But this leads me to an article that was published just after Justice Ginsburg died, and before the Barrett nomination was even anticipated or announced. In the Los Angeles Times, Carla Hall, an editorial writer, offered a piece with the headline, “Ruth Bader Ginsburg protected your abortion rights. Be afraid now that she’s gone.” This particular article, which seems to have been written without the slightest or embarrassment uses some of the arguments that we need to watch very carefully. For instance, consider this line, “Reproductive rights have been constantly under attack in the nearly half century since the court ruled women had a right to illegal and safe abortion in Roe V. Wade,” and she goes on to say, “Ginsburg never gave up the fight.” Well, here’s what’s interesting. We’re being told, let me just look at the words again, “reproductive rights,” and by that we know she means abortion, have been constantly under attack in the nearly half century since what? Since the court ruled women had a right to a legal and safe abortion in Roe V Wade.

Now, here’s what’s interesting there. You have this very pro-abortion author, and let’s just say very pro-abortion, and that’s why she wrote the article, acknowledging that there actually was no right of a woman to an abortion until the Supreme Court declared that right in 1973. You’ll notice what this kind of author can’t say. She can say that ever since the ratification of the constitution in 1789, women have been understood to have a constitutional right to abortion. She can’t say that because it would be absolutely ludicrous. It’s actually an amazingly candid and honest admission of the fact that there was no such right until the court invented it. The point of this article is that, the death of Justice Ruth Bader Ginsburg “endangers this right,” and I’ll put that in quotation marks, that was invented in 1973 in the Roe V. Wade decision.

There’s going to be so much to talk about far beyond the Supreme Court this week and in coming days, but for a very good reason, with the 2020 presidential election looming before us, yes, less than six weeks away, we are looking at the fact that there has never been, in American history, a development such as the confirmation fight that’s going to take place in the United States Senate over president Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court in the midst of such an election. There are very clear reasons why constitutional conservatives in the United States. I will go on and say, conservative Christians committed to the sanctity of human life are so encouraged by her nomination. This is not just another conservative appointment to the Supreme Court. This is not just another appointment by a Republican president of a justice to the Supreme Court.

This is indeed a game changer. It is so, because of the judge, Amy Coney Barrett is. It is so because of the context of the nomination made by President Trump, a nomination for which I am incredibly thankful. Also have to consider the effect of having someone like a Justice Amy Coney Barrett on the Supreme Court for what we don’t see, of how the court deliberates, what we don’t see in the Supreme Court comforts the conversation among the justices, the official conversation about the adjudication of cases. That’s one of those places where someone like Amy Coney Barrett can make an incredible difference. But stay tuned, this is going to be a huge fight. The Senate Republican leadership has indicated that judiciary hearings will begin October the 12th. That’s just a matter of about two weeks away, so get ready.

Then of course, just a matter of less than a month after that is election day in the United States, and that includes voting for the future of the United States Senate and the future of the American presidency. At least you’ll be able to tell your own grandchildren, you lived through a time of American consequence. Of about that, there will be no doubt.

Thanks for listening to The Briefing.

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I’ll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

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