Joan of Arc – a martyr and saint who acted under divine guidance – led the French army to victory over the English during the Hundred Years' War (1337-1453). During that time, the Inquisition was in full throttle in Europe as the clergy sought to eliminate heretics. Unfortunately, Joan of Arc was caught up in the heretical persecutions, leading to her being burned at the stake in 1431, at age 19.
As we have seen, conservative justices President Donald Trump has nominated to the Supreme Court of the United States (SCOTUS) have to undergo a modern-day inquisition by the Senate. This was the case for Amy Coney Barrett (ACB) despite the fact she was eminently qualified. While her inquisition lacked the violence and torture of days of old, it did not hold back the tortuous line of questioning Democrats pursued. Just like inquisitoners resented Joan of Arc's steadfast faith, modern-day inquisitioners like Sen. Dianne Feinstein, D-Calif., hold a deep-seeded resentment toward ACB ("the dogma lives loudly in you") for hers. Many of their questions were prompted purely to seek answers for which, it was hoped, a line of criticism would open up to derail the nomination. But, as one blogger suggested, the mother of seven kids, ACB was used to answering stupid questions. One observer commented, ACB provided a "knock it out of the park performance … she was poised. She was very patient." It is no wonder the latest poll shows 51% of Americans favor her approval and only 28% are opposed. Sen. Chuck Schumer, D-N.Y., who insists the winner of the Nov. 3 presidential election select the nominee, ignores the will of the people, already having made an unsuccessful effort to shut down the Senate to stop a vote on Barrett.
In 1431, a humble Joan of Arc was on public trial, which went private after her sharp responses got the better of her accusers. Similarly, a humble ACB's cool and calm demeanor left her frustrated inquisitors undoubtedly wishing they could have taken her hearing private.
It was entertaining to watch ACB joust. A walking encyclopedia of knowledge when it came to the law of the land, she fended off numerous attempts – some clearly obvious, others less so – to get her to violate her ethical responsibility not to expose her opinions on issues that might come up before the high court in the future and as established by a 1993 Democratic precedent known as the "Ginsburg Rule." Her inquisitioners came to the hearings armed with thick notebooks of questions to ask; ACB came armed with but a sharp mind. As would be expected of senators looking to play political football with a SCOTUS nomination, trying to score points with incorrect interpretations of the law, ACB stopped them cold, explaining actual case law. With the patience of Job, she fielded question after question, often repeating previous answers as senators foraged for a "gotcha" moment. None was forthcoming. Even anti-Trump CNN acknowledged ACB was well-qualified. ACB's intelligence, wit and patience had disarmed her Democratic jousters.
Confronting a nominee who was an ideological opposite of the late Ruth Bader Ginsburg left Democrats worried about seating a Supreme Court justice doing what was expected of her – not legislating law but interpreting the Constitution as written. However, due to the current political climate, this raised concerns over some issues.
One issue Democrats knew they could not take head on with ACB was her faith, since the Constitution protects a nominee for office from being asked about it. But that did not preclude critics from touching indirectly on the subject of ACB's staunch Catholic beliefs by attacking religious groups to which she was linked. The obvious concern was the influence her faith might play in overturning Roe v. Wade, prioritizing a woman's right of abortion over a human fetus' right to survive.
Another issue was the influence a Trump SCOTUS nominee, confirmed just before the election, could wield if a ruling on a disputed outcome of the Nov. 3 presidential election arose.
ACB's critics, lacking ammunition to go after her based on her qualifications, therefore sought to direct their fire against her on whatever charge they could, regardless of how outrageous or inappropriate. This line of attack sank to the lowest levels, criticizing her: attire during the hearing as inappropriate; mask as handmaidenly; being a "white colonist" for adding two black children from Haiti to her family of five white children to defend against claims of racism; refusal to answer questions on potential future SCOTUS cases according to the media, which praised prior hearings where liberal justices did the same thing; use of the words "sexual preference" when Democrats have recently used them; and most outrageously, being a "handmaid" with a "clown car vagina" – whatever that is supposed to mean. Two female anti-ACB dimwits harassed Sen. Lindsey Graham, R-S.C., at the airport, outrageously claiming ACB was racist, despite being the mother of two black children.
It is clear, assuming ACB wins Senate approval in the days ahead, the first issue with which she may have to deal, based upon existing legal precedent and should disputed presidential election results mandate a SCOTUS decision, is whether her recusal is required. Able to appropriately avoid answering the question during her hearing, if it does arise, the 2009 U.S. Supreme Court decision in Caperton v. A. T. Massey Coal Co., decided by a 5-4 vote, might well require such recusal.
Without getting wrapped up in the facts of that case, the decision was that judges must recuse themselves when actual bias is demonstrated, or when they have an economic interest in the outcome or when "extreme facts" create a "probability of bias." The majority opinion noted recusal may be constitutionally required even where a judge is not actually biased as long as there is a "serious risk of actual bias," citing "psychological tendencies and human weakness." Undoubtedly, ACB detractors would argue ACB cannot possibly separate herself from such bias. Interestingly, the minority opinion claimed the majority would come to regret its new test due to lacking clarity on whether bias was exclusively financial, as in Caperton, or included more general interests. The standard would not be whether a judge personally believed fairness was possible but whether a reasonable person believed impartiality was inescapable. Judge Antonin Scalia criticized the majority decision, with the qualification recusal should sometimes be required "even where the clear commands" of the Constitution do not require it. As ACB only clerked for Scalia until 1999, she had no involvement in the case. However, as Scalia was her mentor, it is likely she would opt for recusal if such a decision became necessary.
A vote by the Senate Judiciary Committee to advance ACB's nomination for Senate approval is scheduled for Oct. 26. Steps will obviously be taken by Democrats to delay a Senate vote, such as refusing to provide a quorum.
Joan of Arc – the embodiment of religious devotion and humility – helped change the course of history for her country. Hopefully, with ACB seated on our Supreme Court, so too will she.
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