Brian Fitzpatrick, Vanderbilt University Professor of Law joins The First Trade panel to discuss the latest with the SCOTUS hearings.
- It's day four of the confirmation hearings for Judge Amy Coney Barrett as she looks to join the Supreme Court. Today, witnesses in favor and against her nomination will testify after she was grilled on everything from abortion to gay rights.
Let's bring in Vanderbilt University Professor of Law Brian Fitzpatrick. Like Barrett, he also clerked for Justice Antonin Scalia. Brian, good to see you this morning here. So what do you make of Barrett's approach up to this point?
BRIAN FITZPATRICK: Well, you know, I think she's done a pretty good job by not telling people how she might rule in future cases. That's pretty much been the line that Supreme Court nominees have taken since Ruth Bader Ginsburg, ironically. She said that the nominees are not supposed to give any hints or forecasts of how they might rule in future cases, and she's stuck to that. She's been speaking very generally about her originalist, textualist approach to interpretation. It's the same approach that Justice Scalia, her mentor, our former boss, used.
So it looks like she's doing well and on track to get confirmed.
- Now Brian, so far she has refused to speak to whether or not she would recuse herself if the election were contested and made its way all the way to the Supreme Court. What do you make of that, and should she have answered that more plainly?
BRIAN FITZPATRICK: Well, you know, she's really tried not to make any promises to the Senate Judiciary Committee about how she might rule on any matter. And the reason is is because she wants to be thoughtful about any matter that may come before her. She wants to do the research, she wants to listen to both sides, and she just doesn't want to make some off-the-cuff comment that she's stuck with while on the Supreme Court.
So I don't think it's inappropriate for her not to make a commitment or a promise to do this or that. I think it's unlikely, to be honest with you, that she will recuse, simply because the standards for recusal are whether people would reasonably believe the judge cannot be impartial in the case. And even though the president has done his level best to create an atmosphere where people might worry about that a little bit, I don't think the president's tweets are going to be sufficient to force a judge to recuse in a case. It's just not-- I don't think people take the president's tweets that seriously, to be honest with you.
- Brian, any indication on what type of justice she might be as it pertains to business cases?
BRIAN FITZPATRICK: You know, that's a really good question. And to be entirely frank with you, the originalist, textualist philosophy is more favorable to social conservatives than it is to economic conservatives. It's a bit orthogonal with regard to economic cases. It's much harder to predict how this philosophy will be applied in any given situation because it will really depend upon the words of the statutes, for example, that Congress has enacted. Sometimes those words will be pro-business, sometimes they won't be.
You know, Justice Scalia was not a reliable pro-business vote. There's lots and lots of cases where he voted with the more liberal justices because the words of the Constitution or the statute didn't drive him towards the business side of the case. So I think she'll be unpredictable in the business cases.
- We know that she clerked for Supreme Court justice Antonin Scalia. She said during these hearings, if I am confirmed, you're not going to get Justice Scalia, you're going to get Justice Barrett. But who else has influenced her career and, perhaps, her approach to the law?
BRIAN FITZPATRICK: Well, I think Justice Scalia has for sure been the biggest influence. And I think what she meant, when she said she's not going to be the exact same, is simply that this originalist, textualist approach-- people who subscribe to it sometimes disagree amongst themselves. The originalist approach asks what did the Constitution mean when it was enacted? And until we amend the Constitution, we're stuck with that meaning.
You know, that's a history question. And historians will often disagree about the right interpretation of the history. And so there can be disagreements about among originalists.
I also think that she has been influenced by her professors at Notre Dame. Many of them have come out in support of her nomination. And I'm sure-- you know, she was a professor for a long time at Notre Dame-- I'm sure she's been shaped and influenced by her students. All of us who are professors can't help but be influenced quite a bit by ideas of our students.
- All right, we'll leave it there. Vanderbilt University Professor of Law Brian Fitzpatrick. Good to see you.
BRIAN FITZPATRICK: Thank you.