Supreme Court justices are asked to rule on our most fundamental rights as human beings and as Americans. They have the final word on what the law is and how it is applied. In light of the stakes, which can be literally life and death, it's not enough for potential Supreme Court justices to be "well qualified," as currently defined by the American Bar Association.
In its review process, the ABA looks at only three characteristics before deciding whether someone is "well qualified" to sit on the Supreme Court: integrity, competence and judicial temperament. These are bare minimum requirements, and we must demand more.
We helped lead an unprecedented 6,200 attorneys in opposing Judge Amy Coney Barrett's nomination because the ABA's "qualification" system does not represent the legal community's position on Barrett and other judicial nominees.
What about the effect a nominee will have on the public's confidence in the Supreme Court and the rule of law? What about the likelihood that a nominee will undermine fundamental human rights or the guarantee of equal protection under the law?
It is a bedrock principle of our legal system and our democracy that fundamental rights must not be subjected to the passing whims of politics. The entire purpose of having a Constitution that guarantees equal protection under the law to everyone within the United States is that, as Justice Robert Jackson put it in West Virginia State Board of Education v. Barnette in 1943, "One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
If Barrett is confirmed and overrules Roe v. Wade, LGBTQ marriage equality or Miranda rights—as her record shows that she would likely do—it would irreparably damage the public's faith in the Supreme Court and the rule of law. These are not trivial concerns—these are concerns that are disqualifying, separate and apart from her integrity, competence or demeanor.
Attorneys swear an oath to defend the Constitution. The ABA refuses to acknowledge the threat that Barrett's nomination faces to our constitutional system, pretending that her confirmation is normal. It's not normal.
More than 220,000 Americans have already died of COVID-19, with more dying every day. Barrett has repeatedly argued that the Affordable Care Act—which protects 133 million Americans with pre-existing conditions (including 7 million who have tested positive for COVID-19)—should be overturned. That's not normal either. The ABA addressed none of this in its analysis of Barrett's candidacy.
Furthermore, no Supreme Court justice has ever been confirmed during a presidential election, while millions of Americans are casting their votes. In 2016, Senate Majority Leader Mitch McConnell refused to hold a hearing or a vote for Supreme Court nominee Merrick Garland—when the presidential election was more than seven months away. This process is hypocritical and illegitimate, and the American people know it. Confirming Barrett under these circumstances will cause irreparable harm to the public's faith in our legal and political system. But again, the ABA addressed none of this.
In the middle of an election, President Donald Trump has regularly stated without any evidence that there will be massive voting fraud, and that Barrett must be confirmed because the election "will end up in the Supreme Court." This is an outrageous abuse of power that taints the legitimacy of the court and of Barrett—another critical fact the ABA review process ignored.
If Barrett were confirmed under these circumstances, an election-related matter comes up to the Supreme Court, and she fails to recuse herself and rules in favor of Trump, it will cause irreparable damage to the public's faith in the Supreme Court and the rule of law. But again, silence from the ABA.
That silence is unacceptable and irresponsible; it has provided cover to senators who quote the ABA's "well qualified" rating as if it were the final word from the legal profession. It is not.
Traci Feit Love is the founder and president of Lawyers for Good Government (L4GG), a nonprofit organization comprised of more than 125,000 lawyers devoted to ensuring human rights and justice for all.
Adam Fernandez is the vice president of policy and strategic engagement at L4GG and has close to a decade of experience working on judicial reform with progressive advocacy organizations.
The views expressed in this article are the authors' own.
