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Following President Trump’s nomination of Judge Amy V. Coney Barrett to the Supreme Court, constitutional law professors at Harvard Law School are split between supporting Barrett and denouncing the nomination process.
Trump formally announced his nomination of Barrett on Saturday — eight days after the death of Justice Ruth Bader Ginsburg, who had filled the seat for more than 27 years. The Court vacancy only weeks before the Nov. election has invited questions about whether Trump should be able to nominate a new Justice.
Professor Tomiko Brown-Nagin, dean of the Radcliffe Institute for Advanced Study, wrote in an email that Trump “needlessly breached decorum” by nominating a Justice before Ginsburg had been buried. She also pointed out the nomination comes after the presidential election has already begun, since more than one million people have cast their ballots, according to data from the United States Elections Project.
“The nomination process should await the outcome of the election; the person duly elected president, whether Biden or Trump, should nominate someone to fill the open seat,” she wrote.
Professor Richard J. Lazarus echoed concerns about the timing of the nomination. He wrote in an email Barrett’s confirmation could create a conflict of interest if election disputes make their way to the Supreme Court.
“Yet, President Trump has made it clear that the prospect of such a case before the Court is precisely why he wants Barrett to be on the Court immediately, before the election, more quickly than any past nominee in memory,” he wrote.
Lazarus noted he wants the Senate to question Barrett on whether, if confirmed, she will recuse herself from an election dispute, as well as whether the White House asked about her “loyalty” to the president before her nomination.
“We know that the President is very concerned about such loyalty, as evidenced by his asking just such questions of James Comey when he was serving as Director of the FBI,” Lazarus wrote.
Law School Professor Emeritus Laurence H. Tribe ’62 also expressed suspicions about the Supreme Court’s involvement in a potential election dispute.
“There has never been a Supreme Court confirmation while a presidential election is underway,” Tribe wrote in a Tweet. “The Constitution permits it, but it’s an irresponsible abuse of power designed to kill the [Affordable Care Act] and pack the Court to back up Trump’s plan to stop counting on Nov 3.”
Despite criticism of the nomination process, Professor Noah R. Feldman ’92 defended Barrett’s qualifications in an article for Bloomberg News. Feldman clerked at the Supreme Court with Barrett in 1998 and described her as a brilliant lawyer with a “judicial temperament.”
“I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions,” he wrote. “Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed.”
He also argued that concerns surrounding Barrett’s Catholic faith should not disqualify her from the position and claimed that regardless of the politics and circumstances of the nomination, Barrett exceeds the criteria for a good Supreme Court Justice.
“When she is confirmed, I am going to accept it as the consequence of the constitutional rules we have and the choices we collectively and individually have made,” Feldman wrote.
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