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Expert warns 'Barrett rule' could sting Democrats on Supreme Court nominee

Bob Unruh

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Biden to pick replacement for retiring justice Stephen Breyer

Constitutional expert Jonathan Turley is warning that the "Barrett Rule" created by Democrats when they were attacking President Trump's nominee to the Supreme Court, Amy Coney Barrett, could sting them in the coming congressional hearings for Joe Biden's nominee.

He's to announce his pick soon for a replacement for Justice Stephen Breyer, who is retiring.

Turley wrote in an online column that Democrats now are urging senators to have an "open mind" about Biden's pick.

"In the case of Amy Coney Barrett’s nomination, Sen. Angus King Jr. (I-Maine) wrote in The Atlantic that he would only vote for a nominee who expressly favored an 'appropriate application of the terms of the Constitution to particular cases.' Sen. Dick Durbin (D-Ill.), the Democratic whip, declared that his opposition to Barrett was based on her interpretive approach that would work 'against change and evolution in America that is inevitable and in fact necessary,'" Turley explained.

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"Under this approach, Republicans would not have to be 'open-minded' about a Biden nominee who follows an expansive view of constitutional interpretation. This includes support for a 'living Constitution' approach that allows courts to 'update' the Constitution without the necessity of constitutional amendments. Biden reaffirmed that view in discussing his expected nominee's acceptance that 'the Constitution is always evolving slightly in terms of additional rights or curtailing rights.' Indeed, adhering to the living-Constitution theory may be the only pro-life position tolerated in a Biden nominee," he explained.

At least one Democrat, Sen. Mazie Hirono of Hawaii, now has been insisting Senate Republicans be "open-minded" about a replacement.

"It was an ironic statement from a senator who told all men to 'shut up' during the Brett Kavanaugh confirmation and rejected any notion of that nominee being entitled to a presumption of innocence," Turley noted.

"Hirono and the White House may be most worried that their eventual nominee will face the standards applied to the three nominees during the Trump administration," he said.

It could be a critical issue because the Senate is divided 50-50 between the parties, but Kamala Harris could break a tie vote for Democrats. However, New Mexico Democrat Sen. Ray Lujan recently suffered a stroke, putting his vote in question.

That could leave the Senate with 50 Republicans and 49 Democrats, meaning at least one GOP member would have to support Biden's nominee or the nomination would fail.

Turley explained during all three hearings for Trump nominees, "Democrats shocked some observers by demanding an assurance on how justices would vote on pending cases. That was particularly the case with Barrett, who was confronted with demands that she pledge under oath to preserve Roe v. Wade or ObamaCare."

He explained, "I warned at the time that Democrats were creating a 'Barrett rule' that could be used against their own nominees in the future."

He added, "One of the most alarming attacks launched by Democrats in prior nominations was against Justice Barrett on the basis of her religious beliefs. Sens. Feinstein and Hirono called on her to explain her association with a traditionalist Catholic church group."

But he pointed out that one of the front-runners for Biden's nomination is Ketanji Brown Jackson, "who sat on a now-defunct advisory school board for Montrose Christian School in Rockville, Md. As one conservative commentator has documented, the school provided 'Christ-centered education for the glory of the Savior and the good of society.' Among the school’s 'uncompromisingly' held principles is that God created men and women 'as the crowning work of His creation. The gift of gender is thus part of the goodness of God’s creation,' that Christians must oppose 'all forms of sexual immorality, including adultery, homosexuality, and pornography,' that marriage is the 'uniting of one man and one woman in covenant commitment,' and that Christians should 'speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death.'

"The question is whether Democrats will now engage in the same pearl-clutching, breathless shock over this nominee’s apparent religious connections as they did over Justice Barrett’s," he said.

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