Barring any major surprises, the Senate is set to confirm Judge Amy Coney Barrett Monday night. She'll fill the Supreme Court seat that had been held by the late Justice Ruth Bader Ginsburg. Harvard Law Professor Noah Feldman is known as a liberal, but he's vouched for the conservative Barrett, with whom he once clerked on the Supreme Court back in the 1990s. Feldman spoke with GBH All Things Considered host Arun Rath ahead of Barrett's hearing before the Senate Judiciary Committee, and he checked in again with Arun ahead of Monday's vote. This transcript has been edited for clarity.
Arun Rath: Let me get your takeaways from the Senate Judiciary Committee's confirmation hearing for Judge Barrett. Did it go as expected? Anything surprising for you?
Professor Noah Feldman: There really don't seem to have been any major surprises — not in the questioning process and not in the subsequent discussion among the senators. As we heard at the beginning of the hearings, we more or less knew how they were going to come out.
Rath: You've spoken highly of Judge Barrett's credentials, her demeanor, even while disagreeing with her judicial philosophy and the way that Republicans have gone about the political process of the nomination. But as as a liberal, how do you think the Democrats in Congress handled the process part of it?
Feldman: I think they handled it just fine. The decision within the Judiciary Committee for the Democrats not to vote at all on the recommendation was a plausible one. It was a way of expressing protest at the situation without directly impugning Judge Barrett herself, and I thought that reaction was entirely understandable and appropriate.
Rath: In terms of where Judge Barrett sits, it seemed like what were getting across from the Democratic side was that she has views that are extreme, positions that are extreme. From where you're sitting, in terms of the views on the law that we heard, do you think that's fair?
Feldman: Her views are extremely the opposite of mine in the sense that she's a textualist. I think textualism is the wrong way to interpret statutes. I think you need to know the purpose of the statute. She's an originalist, I think that's wrong. I think the alternative to a living constitution is a dead constitution, and we definitely need a living constitution. But her views are not outlying relative to other conservatives. She is definitely a hard-line judicial conservative, but her views are not markedly different from those of several other justices on the Supreme Court, or markedly different from those of the late Justice Scalia. She will not be the most conservative justice on the court if and when she is confirmed.
Rath: You've taken some heat from inside Harvard Law School over your op-ed that was originally for Bloomberg, in which you vouched for Judge Barrett. There is a group of Harvard Law students who published an op-ed with GBH News in response, saying that the Bloomberg piece "reinforces a cycle in which the upper echelon of the legal profession maintain influence by prioritizing elite credentials, rather than considering the profound impact that judges have on hundreds of millions of Americans." In short, they say that all we should be talking about here is Barrett's approach to the law, rather than credentials or demeanor.
Feldman: I think that it's, first of all, ironic that a group of Harvard Law students are objecting here to the fact that a justice who went to Notre Dame Law School and who's a professor at Notre Dame Law School and will be the first justice not to have gone to Harvard or Yale Law School in years on the court is somehow a product of of elitism. So I think that is just a mistaken view of the matter.
Reasonable people can differ about whether we should care that a justice be extremely intelligent, extremely skilled, extremely conscientious and have a judicious and judicial demeanor. Some people think none of that matters, and they're entitled to think that all that matters is outcomes. But if I'm doing a good job as a professor at Harvard Law School, and I don't know if any of the people who signed this note were my students, but the thing I'm trying to teach my students is that when you get onto the Supreme Court, the justices are really trying to the best of their abilities to present the appearance to the world, and indeed to themselves, that they're not motivated by partisanship. They have ideological commitments for sure, they have jurisprudential commitments for sure, but they do surprising things.
And that's how Justice Kennedy, nominated by Ronald Reagan, gave us gay rights and gay marriage, and it's how Neil Gorsuch, nominated by Donald Trump, gave us LGBTQ anti-discrimination rights this past summer. So that's an important part of the judicial process. You cannot predict exactly what the justices' views will be by past performance. And for that reason, in my view, we want to have an institution, namely the Supreme Court, where justices try to act in a nonpartisan way, even if we admit that they don't always do that.
Rath: Following up on that, how big of a deal is it in the context of the court, to have somebody confirmed who's not from from Harvard Law, who's not from one of the traditionally elite law institutions?
Feldman: It's actually a really big deal, and it's a terrific development, one that has been sort of obscured by people making mistaken and false comments that somehow Judge Barrett is a member of the elite. It has been very unhealthy, in my view, for the court to be so dominated by the graduates of Harvard Law School, where I teach, and Yale Law School, where I went. Those are great institutions, but there are other great law schools out there in the country. And historically, many of our greatest justices did not come out of that rather narrow legal elite, but they came from other places and had other kinds of backgrounds. So that's a very salutary development, no question.
Rath: Let me ask you again a bit about the confirmation process, and we don't need to describe too much about how it's been conflicted. It's moved very, very, very quickly. Regarding this notion, which we've heard expressed, that this could damage public respect for the Supreme Court, the sense of legitimacy that the court has typically enjoyed — is that a fear of yours right now?
Feldman: The legitimacy of the court is always on a knife's edge when people press the envelope. So the refusal by Mitch McConnell and the Senate to consider Merrick Garland's nomination at all was outrageous. It broke with tradition and it had the effect of undercutting some of the legitimacy of the court.
I think the confirmation, the fast confirmation of Judge Barrett, is less of a big departure than was the blocking of Merrick Garland. Nevertheless, the issue that the justices will now have to consider going forward — and that includes Judge Barrett, as she is apparently about to become — they're going to have to ask themselves: If we issue judgments that are very out of step with the public will, the American people, will the people respond by demanding that the court be changed? Or demanding that Democrats pack the court by adding more justices?
And I think they have to be aware that that risk exists out there, and the fact that they're aware of that may have a constraining effect on the decisions that they issue. It would do them no good to overturn Roe v. Wade only to have that drive the Democrats to pack the court with justices who restore Roe v. Wade while simultaneously undercutting the idea that the court is outside of politics.
