URJ North American Board
October 2020
In 2002, the URJ adopted a resolution on “Judicial, Executive Branch, and Independent Agency Nominations.” The resolution noted that, “Judges at all levels must be committed to defending the Constitution, protecting civil rights and civil liberties, acting within the framework of the precedents set by higher courts, and enforcing constitutional legislation enacted by Congress when cases come before them.” Although Judge Barrett has many professional and intellectual qualifications, her record makes it clear that her elevation to the Supreme Court would significantly jeopardize or adversely affect the most fundamental rights the Reform Movement has long supported.
Few public servants have as great an ability to impact lives as do Supreme Court justices. Justices often serve for decades, far exceeding the term in office of the President who appointed them. Despite the Court’s opacity, justices rule on cases that have implications for every aspect of Americans' lives, from conception to death.
For that reason, the Constitution’s drafters envisioned robust public input on the process of confirming justices. Senators, bound to fulfill their constitutional responsibility to provide “advice and consent” on the nomination, need to hear the voices of their constituents. Nominees submit to public questioning and exploration of their records as a means of determining worthiness for a lifetime appointment on the highest court of the land. Achievements for which the Reform Jewish movement has fought so hard can be undercut, struck down, or overturned by a Court prepared to abandon long-standing legal precedent.
At the same time, we respect the President’s constitutional right to select a nominee and have weighed in rarely to oppose a Supreme Court nominee. Although we expressed concern, we did not take a formal position on the 2017 nomination of Justice Neil Gorsuch. In contrast, in 2018, we opposed the nomination of now-Justice Brett Kavanaugh, noting that “…as a member of the U.S. Court of Appeals for the District of Columbia Circuit and in his writings, Judge Kavanaugh has evidenced a judicial philosophy that would curtail women’s reproductive rights, weaken workers’ rights, oppose gun violence prevention measures, threaten the protections of freedom of religion by breaking down the separation of church and state, challenge environmental protections, and undermine voting rights. This record puts Judge Kavanaugh in strong opposition to long-held policy positions and core values of the Reform Jewish Movement.”1. We did not oppose the nomination of Chief Justice John Roberts but did oppose Justice Samuel Alito’s nomination.
Our 2002 resolution enumerates the criteria on which we should base a decision to oppose a judicial nominee. There is general consensus that Judge Barrett is a person of the highest levels of intelligence, competence, integrity, and judicial temperament, and that considerations A-C do not apply. We express our concerns based on considerations D, E, and F, which are:
D. The nominee has emerged as a major and influential ideologue on one or more issues of core concern to the Reform Movement and the appointment would likely contribute significantly to reshaping American jurisprudence or policy in a direction that would jeopardize those core values;
E. The nomination has engendered a national debate on one or more issues of core concern to the Reform Movement so that the outcome of the confirmation or nomination is likely to be perceived as a referendum on that issue and will have significant implications beyond the individual nomination;
F. The nominee’s confirmation would shift the ideological or policy balance of a particular court or independent agency on matters of core concern to the Reform Movement;
Judge Barrett’s record across a range of issues indicates that, if confirmed, her rulings would likely threaten the values enumerated in our 2002 resolution:
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Judge Barrett’s confirmation would place an “originalist” majority on the Court. If she continued to rule in line with what she has written academically and as she has ruled on the Seventh Circuit Court of Appeals, she would significantly shift the balance on the Court in a direction that would likely undercut and reverse positions for which we have fought in Congress and espoused in the courts for much of the past century.
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Of equally grave concern is Judge Barrett’s comfort with overturning the principle of stare decisis, upholding legal precedent. In her words, “…stare decisis often functions inflexibly in the federal courts, particularly in the Courts of Appeal. I claim that in its rigid application - when it effectively forecloses a litigant from meaningfully urging error - correction - stare decisis unconstitutionally deprives a litigant of the right to a hearing on the merits of her claims. To avoid the due-process problem, I suggest that courts render stare decisis more flexible; specifically, I propose that courts remove rules - like, for example, the rule that one appellate panel cannot overrule another - that create nearly insurmountable barriers to error - correction.”2
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The precarious balance on the Court and the self-evident attempt to shift that balance through the strength of her views combined with her age as one of the youngest justices in history (Justice Gorsuch was only one year older when appointed) has indeed engendered a national debate about the Court and this appointment as a referendum of where the courts would be for the next decades.
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Judge Barrett’s elevation would gravely endanger long-held substantive positions of the Reform movement. Given that the Court this term will hear arguments in the latest challenge to the Affordable Care Act, Judge Barrett’s critique of Chief Justice John Roberts’s 2012 vote to uphold the ACA is of particular concern.3 Additionally, she has referred to Roe v Wade as “an erroneous decision” and “judicial fiat.”4 She dissented when appeals courts blocked a statewide parental consent law.5 She objected to the Obama administration’s accommodation for religious employers under the ACA. 6 She defended the justices who dissented in Obergefell v Hodges, the landmark marriage equality case.7 And she has expressed restrictive views of existing legal rights of transgender individuals.8
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The nomination has also engendered a national debate over the propriety of the Senate voting only days before a national election and the fairness of having denied even consideration of Judge Merrick Garland’s 2016 Supreme Court nomination ten months before a new President was sworn in. This push to confirm Judge Barrett so close to the election will exacerbate the effort to shift the balance of the Court. Out of concern for the imminence of the election when the views of the American people will be heard, the leadership of the Reform Movement called on the Senate not to rush to confirmation now when doing so potentially undermines the legitimacy of the Senate, the Court, and our democracy overall.
Therefore, the Union for Reform Judaism resolves to:
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Oppose the Supreme Court confirmation of Judge Amy Coney Barrett;
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Affirm our earlier call for the Senate to refrain from voting on Judge Barrett’s confirmation until after the inauguration of the next President and Senate; and
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Urge congregants and clergy across the Reform movement to convey to their senators opposition to the confirmation of Judge Amy Coney Barrett to the U.S. Supreme Court and to voting on any nomination prior to the inauguration of the next President and Senate.
[1] https://urj.org/press-room/reform-jewish-movement-calls-senate-reject-nomination-judge-brett-kavanaugh
[2] https://scholarship.law.nd.edu/law_faculty_scholarship/450/
[3] https://www.nytimes.com/2020/09/20/us/politics/supreme-court-barrett.html
[4] https://www.scotusblog.com/2018/07/potential-nominee-profile-amy-coney-barrett/
[5] https://www.vox.com/21456044/amy-coney-barrett-supreme-court-roe-abortion
[6] https://www.scotusblog.com/2018/07/potential-nominee-profile-amy-coney-barrett/
[7] https://www.youtube.com/watch?v=7yjTEdZ81lI
[8] Ibid.