By / Jan 15

The peaceful transition of power from one chief executive to another is one of the most enduring and cherished legacies of the American government. But it’s also a complicated process. There is a lot that has to happen between Election Day and Inauguration Day.

Here is a brief outline of some of the steps that have to be taken in the transition from President Trump to President Biden.

Presidential campaigns usually create a transition team during the summer before the election. The Presidential Transition Act of 1963 and the Presidential Transition Enhancement Act of 2019 authorize funding for pre-election activities and support. But after the election, the president-elect is authorized to receive additional funding to pay for his staff, secure office space, and pay for other expenses. (The President’s FY2020 budget request included $9.62 million in funding for the transition.)

Pre-election transition activities continue until the General Services Administration (GSA) officially declares the winner of the presidential election through what is known as ascertainment. Although President Trump disputed the election results on social media, GSA ascertained President-elect Biden as the winner of the 2020 election on November 23. Ascertainment allows the transition team to begin a broad range of official activities, such as getting guidance from the National Archives and Record Administration on preserving presidential records.

Around that time, the transition team will also create agency review teams, which as the Center for Presidential Transition explains, are responsible for “collecting information about the unique roles and responsibilities of each major department and agency of the federal government, and providing information that is relevant, useful and important to the new administration.” Presidential transition team members can also begin receiving security clearances, classified information, as well as access to government offices and staff.

The transition team also selects the top 50 Cabinet appointees and key White House personnel, develops a policy implementation plan, budget and management agenda, sends intended Cabinet agency appointments to the Senate, and determines how to fill roughly 4,000 politically appointed positions—including more than 1,000 jobs requiring Senate confirmation.

They will also begin to draft new executive orders so that they can be implemented as soon as the president-elect takes office, and work with Office of Management and Budget (OMB) career staff to develop a “shadow” presidential budget aligned with the president-elect’s top policy priorities.

The Presidential Transition Act requires the Trump administration to provide President-elect Biden with a classified summary of the nation’s national security threats and major military or covert operations. The briefing is generally given daily during the transition period. The law also requires the Trump administration to host interagency emergency preparedness and response exercises. Around mid-January, the transition team submits agency review reports and briefs incoming agency heads, prepares a Cabinet orientation/retreat, and takes care of other last minute items.

Under the Constitution, the President and the Senate share the power to appoint the principal officers of the United States. Since most of the highest-level political appointee positions in the federal government—including all cabinet members—are filled by such officers, the Senate has to hold confirmation hearings to fulfill its “advise and consent” role. The Senate typically also begins the process of holding confirmation hearings prior to Inauguration Day. But because the Georgia Senate race wasn’t decided until early January (thus determining who controlled the Senate) the process has been significantly delayed.

The Senate has set a date of January 19 for hearings on his nominees for Homeland Security, Defense, State, and Treasury. But those positions might not be confirmed and able to start work for days or even weeks later. Until the cabinet is officially confirmed, Biden will rely mostly on acting officials. (Under the Vacancies Act, acting officials can be chosen from among first assistants to the vacant position, Senate-confirmed officials in any agency, and agency workers who have served at least 90 days prior to the vacancy and paid at least at the GS-15 level.) Because the Senate’s trial for President Trump’s second impeachment takes precedence over other floor business in the chamber, the confirmation process may be delayed several weeks.

President-elect Biden will take the Oath of Office and become the President of the United States at noon on January 20. Following the inaugural ceremony at the U.S. Capitol, the outgoing President and First Lady normally leave to begin their post-presidential lives. But President Trump has said he will not attend the inauguration. (Three other presidents—John Adams in 1801, John Quincy Adams in 1829, and Andrew Johnson in 1869—refused to attend their successors’ inaugurations.) Later that day, after the completion of inaugural festivities, President Biden will move into the White House. Because of COVID-19, the federal government has increased White House janitorial and housekeeping work in order to perform a deep cleaning, allotting $127,249 for “2021 Inaugural Cleaning.”

By / Jan 12

We begin 2021 with a conversation between Jeff Pickering and Russell Moore about the attack on the U.S. Capitol, and not just that as a lone event but all that led up to it. The constant assault on the truth and reality of the 2020 presidential election, that Joe Biden won and Donald Trump lost, stirred up the worst of partisan passions and led to an unimaginable assault on our democracy and a historic tragedy on Wednesday, January 6.

The interview was hosted as an ERLC webinar on Friday, January 8, 2020.

Resources from the Conversation

By / Nov 17

Jeff Pickering and Chelsea Patterson Sobolik welcome back ERLC president, Russell Moore, to the podcast to talk about his new book, The Courage To Stand, and what we can learn about truth and tribalism from the 2020 presidential election. The message of Dr. Moore’s newest book is timely for this fearful and anxious year as he helps readers see where Christ-empowered courage comes from, from the way of the cross.

This episode is sponsored by The Good Book Company, publisher of the advent family devotional, A Better Than Anything Christmas. Find out more about this book at thegoodbook.com.

Resources from the Conversation

By / Nov 6

The 2020 presidential election is still ongoing and has raised many questions. Here is an explanation of what’s happening.

Why is it taking so long to count the ballots?

The two primary reasons why ballot-counting is taking longer than usual, is because of high voter turnout and the process of counting absentee ballots (i.e., mail-in ballots). 

Voter turnout has been higher than in normal elections, which estimates ranging from roughly 157.1 million to 165.0 million votes cast for president. This is likely to be the highest percentage of voter turnout since 1900, when 73.7% of eligible Americans cast ballots. Vice President Biden has already broken the record for most votes ever cast for a U.S. presidential candidate, beating President Obama’s 2008 tally.

The record number of absentee ballots has also slowed the counting. So far there have been almost twice as many absentee ballots as in person ballots (65.2 million compared to 35.9 million). Some states, such as Pennsylvania, are not allowed by their state laws to count any mail-in ballots until Election Day. 

Because absentee ballots require additional steps to process, such as opening the envelopes and checking the names against voter rolls, they take significantly more time to process. That is why states like Texas and Florida, which were able to process their absentee ballots early and know their projected counts on the night of the election. 

What are each candidate’s paths to victory?

For President Trump to win reelection, he needs to win Pennsylvania and three of the remaining states: Arizona, Georgia, North Carolina, and Nevada. For Vice President Biden to win the election, he needs to win Pennsylvania or two of the remaining states. 

At the time of publication, Biden was leading in all states except for North Carolina. 

What does it mean for media outlets to “call’ a race?

Media outlets create projection models to predict the likely outcomes of a race. Such models are based on criteria like exit polls and past elections and are usually based on a county-by-county breakdown. Some models also consider the relative number of absentee ballots and urban votes (which tend to skew Democrat) compared to election day ballots and rural votes (which tend to skew Republican). For this reason, where the remaining votes are in a state can help projection models determine the likely outcome. For example, if all of the historically Republican parts of a state have counted 100% of the vote but all the historically Democratic parts of a state have counted 0% of the vote, they may call the race for a Democrat losing the state by 1% if the exit polls show the Democratic areas will continue voting for the Democrat by a significant margin.

The two primary projection models are Edison Research’s National Election Pool (which is used by ABC, NBC, CBS, NBC, et al.) and AP VoteCast (which is used by the Associated Press and Fox News). The differing methodologie are why some media outlets project winners in certain states while others do not. The most prominent example from this election is the AP and Fox News calling the state of Arizona for Biden on the night of the election. 

But while such projections help us know who the likely winner will be, the determination of who will be president is based on the official vote counts being certified by the Secretary of State for each individual U.S. state. 

Could a recount change the outcome of an election?

Before the votes are certified, states can allow a recounting of the ballots. Each state has their own laws about when a candidate can request a recount. For example, Wisconsin law only allows for a recount if the margin in the race is within 1% (Georgia has already announced they will be conducting a recount). In many states, a candidate can also request a recount if there is evidence of fraud or significant error. 

Recounts rarely change the vote count by more than a few hundred, and almost never change the outcome of race. For example, in the 2016 presidential contest, Wisconsin conducted a recount after Trump beat Sec. Hillary Clinton by more than 20,000 votes. The recount resulted in Trump gaining an additional 131 votes.

The most famous recount in presidential history was in the 2000 election. George W. Bush was leading Gore by about 2,000 votes on the night of the election. These results were contested, and after a statewide machine recount and partial subsequent hand recounts in some counties, the Supreme Court ordered an end to the process with Bush leading by 537 votes.

Has there been significant voter fraud in this election?

Currently, there has been no evidence that voter fraud has been occurring. 

Trump’s campaign has filed lawsuits in Georgia, Michigan, Nevada, Pennsylvania. Judges in Georgia, Michigan, and Pennsylvania have dismissed the legal challenges.

In only one state—Nevada—have they officially claimed fraud was occurring. Trump tweeted that there was “plenty of proof,” but neither he nor his campaign have offered any proof at all. 

There are numerous reasons why widespread election fraud is difficult, if not impossible, to pull off at the presidential level. Political parties appoint partisan poll watchers to monitor polling places and election offices. For instance, an election office in the Democratic stronghold of Detroit had 134 Republicans, 134 Independents, and 134 Democrats as poll watchers. Extensive research has shown that voter fraud is exceeding rare, that voter impersonation is virtually nonexistent, and that many instances of alleged fraud are merely mistakes by voters or election administrators.

By / Nov 3

What makes a good president of the United States? Are there certain traits that naturally lend themselves toward an individual’s success in the highest office in the land? Do we expect too much from the individuals we choose to be president? These questions are just a handful of the ones that author John Dickerson tackles in his fascinating new book, The Hardest Job in the World: The American Presidency.

Dickerson, easily one of my favorite political analysts, has written one of the most engaging overviews of the American executive branch. As I read it in the run-up to the 2020 election, it helped clarify for me the real and imagined roles of the presidency and gave me an appreciation for the men who have held the office in our history. One thing it confirmed for me: character matters.

“Character in many ways is everything in leadership,” remarked former U.S. President Dwight “Ike” Eisenhower. “Character is really integrity.” As you read the book, you can’t help but come away with a new appreciation for Ike and his deep knowledge of effective leadership. That seems to have been a major objective for Dickerson in writing this book (he said in a recent interview he fell in love with Eisenhower as Dickerson researched his administration for this book).

High demands of our nation’s leader

Why is that so important as a reader? Because in this time where leadership too often is defined as having the loudest voice or the deepest grievance, our nation’s greatest leaders have often provided helpful examples in opposition to those things. In fact, as you read this book, you come to realize that our most successful presidents have cast a vision that is accessible to more than just the Americans who voted for them. As one example, Dickerson uses John F. Kennedy’s prediction that television would allow presidential candidates to speak directly to Americans––and then doing just that in his campaign.

Beyond the poetry of campaigning, this leadership trait of inclusion extends to the prose of governing, as well. Dickerson discusses how it informs the team-building process of presidential administrations. He highlights a quote from famed management expert Peter Drucker who said, “The leaders who work most effectively, it seems to me, never say ‘I.’ They don’t think ‘I.’ They think ‘we’; they think ‘team.’” When a president takes this approach, he or she will be sowing seeds for potential success as the administration takes flight after Inauguration Day. 

Throughout the book, Dickerson explores the various constitutional roles required of the nation’s chief executive as well as the ones Americans have now come to expect the president to play. Our Constitution is very clear that the president is the commander in chief of the U.S. armed forces. As the years have passed, though, we’ve also asked the president to be what Dickerson calls our “consoler in chief” when tragedy strikes our nation. When a deranged white supremacist murdered nine members of Emanuel African Methodist Episcopal Church in Charleston, South Carolina, former President Barack Obama used the moment to discuss God’s grace––a particularly poignant theme the nation needed to hear in that dark hour. But why is this vital for our nation? 

Dickerson answers that by pointing to former Reagan speechwriter Peggy Noonan who said, “speeches are important because they are one of the great constants of our political history. They have not only been the way we measure public men, they how we tell each other who we are.” Thus, a president’s words matter, not only because they have the ability to soothe or unite, but because they connect the current occupant of the White House with those who came before him. While speeches can play an important role in binding up the wounds of a nation, it is probably unrealistic to expect one person to resolve all the issues that come across the president’s desk. Dickerson shows us that it was never designed to be like this. 

Designed to be different 

Our Founding Fathers meticulously built our democratic republic, carefully weighing how each “grain” of power would affect one branch over the others. Their expectation was that the executive, legislative, and judicial branches would work in tension with one another, balancing out the ambition and moves of the other. The Founders were especially concerned with ensuring the president was kept in check. Why? Dickerson writes, “The founders were realistic about human weakness, but they believed that because they were so aware of its shortcomings, they could design a new government that not only accounted for man’s weakness but used it to keep balance.” To underscore this, Dickerson also includes a foreboding prediction by Benjamin Franklin: “The executive will always be increasing here, as elsewhere, till it ends in monarchy.” The last word should send a shudder down the spine of every American since that is what our ancestors revolted against in 1776. 


Ultimately, that continual use of the lens of history may be the most important takeaway from Dickerson’s book. He continually provides the reader with perspective. Whether it’s the quadrennial assertion that this election is the most important election of our lifetimes or the claims of certain disaster if one candidate or the other prevails, we live in a time devoid of such perspective. That can be especially worrisome when every individual has a megaphone and can broadcast their hottest takes for the world to see. As Christians, though, we are called to a higher standard, one of discernment. I have found that reading books like this highly-informative one help push me further along the road toward wisdom and understanding. After reading The Hardest Job in the World, those will be two traits I always look for in a president (or candidate for any office) from now on.

By / Oct 30

On Tuesday, Americans will go to the polls to finish casting their ballots for the 2020 election. But while that will complete the process for many of the offices they are voting for (such as for Senators or state legislatures), it is merely the first step in the Electoral College process that is used to elect the President and Vice President of the United States. Here is what you should know about that process.

What is the Electoral College?

Although the term “Electoral College” is never used in the Constitution (Article 2, Section 1, Clauses 2 and 3), the electors that choose the President at each election are traditionally called a College (meaning a group of people organized toward a common goal). The Electoral College was proposed by James Wilson, a leading constitutional lawyer among the Founding Fathers, at the Constitutional Convention. Wilson’s plan was offered as a compromise between those who wanted the Congress to choose the president and those who believed the election should be decided by the state legislatures. The Framers were generally in agreement against giving the people the power to directly elect the president.

What amendments to the U.S. Constitution affect the Electoral College?

There have been only two amendments to the constitution involving the Electoral College. The 12th Amendment specifies that electors must cast distinct votes for the president and vice president, rather than electoral votes for two candidates. The 23rd Amendment gives this District of Columbia voting rights equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state (D.C. currently has three electoral votes).

Who decides how many electoral votes each state receives?

Each state receives an electoral vote for each U.S. Senator (two per state) plus one for each Congressional representative. Since the number of representatives is based on population, the state’s electoral votes are also based on the number of people who reside within a state. Currently, the Electoral College includes 538 electors, 535 for the total number of congressional members (435 in the House of Representatives and 100 in the Senate), and the three electors who represent Washington, D.C.

How do electoral votes decide who becomes President?

On the Monday following the second Wednesday in December (for 2020 election that will be December 14), the electors of each state meet in their respective state capitals to cast the official votes for President and Vice President. These votes are then sealed and sent to the president of the Senate (the current Vice President), who will open and read the votes on January 6th in the presence of both houses of Congress. The winner is sworn into office exactly two weeks later, at noon January 20.

Who are these electors?

The political party of the state’s popular vote-winning candidate designates its electors.

Since the political parties choose electors, they tend to be partisan political activists. The Constitution doesn’t have any requirements other than specifications for who cannot be an elector: A Representative or Senator, a high-ranking U.S. official in a position of “trust or profit,” or anyone who has “engaged in insurrection or rebellion” against the U.S.

Do the electors have to vote for the candidate who received the most votes in their state?

No. According to the Constitution (and a recent Supreme Court decision), the elector is free to cast his vote for anyone he or she chooses. In fact, there have been about 156 times when electors have voted contrary to the will of the people in their state, making them a “faithless elector.” Faithless electors, however, have never changed an election outcome. Anyone who votes against their state’s choice essentially ruins any future they might have had with their political party.

How many electoral votes are needed to win the election?

A Presidential candidate must receive a majority of the electoral votes (270 of the 538 eligible) in order to win the election. If no one receives a majority then the decision is made by the House of Representatives with each state delegation receiving one vote to cast for the three candidates who received the most electoral votes. This has happened twice in our nation’s history with the House choosing Thomas Jefferson over Aaron Burr and John Quincy Adams being selected over Andrew Jackson.

Wouldn’t relying on the popular vote be a better system?

Not necessarily. The main argument in favor of the Electoral college is that it protects federalism, and allows smaller states to have an influence on the choice of president. This also requires presidential candidates to take into consideration regional preferences. Without the Electoral College, California, Texas, Florida, and New York would likely determine the outcome of every election.

The popular vote is subject to types of fraud that don’t apply to the Electoral College system (except perhaps in swing states). Political parties, for instance, have no incentive to “run up the vote” when their candidate is going to take their state anyway, so they are less likely to resort to direct fraud. An effect of this potential benefit, though, is makes it virtually impossible for a third-party candidate to ever be elected.

By / Oct 16

In this episode, Josh, Lindsay, and Brent discuss updates on the Capitol Hill Baptist Church court case, SCOTUS hearings, world COVID-19 updates, Barron Trump and Nick Saban test positive for coronavirus, Kamala Harris pausing her campaign travel, a huge fundraising update from Biden’s campaign, the cancelation of the second presidential debate, and the Los Angeles Lakers winning their 17th title. Lindsay also gives a rundown of this week’s ERLC content including “The Pearl Brown Story,” Lindsay Nicolet with “How churches and civic leaders can work together during the pandemic,” and Russell Moore with “Why life should be viewed as a miracle.” Also in this episode, the hosts are joined by Benjamin Watson for a conversation about life and ministry. 

About Benjamin

Benjamin Watson is a former American football tight end. He was drafted by the New England Patriots 32nd overall in the 2004 NFL Draft and later he would win Super Bowl XXXIX with the team over the Philadelphia Eagles. He played college football at Georgia. Watson has also played for the Cleveland Browns, Baltimore Ravens, and New Orleans Saints. Benjamin is the author of Under Our Skin: Getting Real about Race-and Getting Free from the Fears and Frustrations that Divide Us and The New Dad’s Playbook. Benjamin has been a long time friend of the ERLC and has spoken at our Evangelicals Life Conference. He is known for being a very vocal opponent of abortion and just released a documentary Divided Hearts of America which aim to bring empathy and understanding to all sides of the abortion debate. Benjamin has been married to his wife Kirsten for 15 years and together they have seven children. You can connect with him on  Twitter: @BenjaminSWatson

ERLC Content

Culture

  1. Capitol Hill Baptist gains religious liberty win in court
  2. SCOTUS hearings: Barrett answers questions on healthcare, voting rights and presidential powers
  3. Sen Ben Sasse tells Dems to follow basic civics during Judge Barrett’s confirmation hearing.
  4. Italy and U.K report record coronavirus surges
  5. Paris Under Curfew: Europe Reacts As Countries See Highest-Ever Coronavirus Numbers
  6. Hunker down’: The fall Covid-19 surge is here
  7. Kids struggle with Covid-19 and its months of aftermath
  8. Melania Trump reveals son Barron had COVID-19, opens up about diagnosis
  9. Kamala Harris pausing campaign travel
  10. Alabama football coach Nick Saban tests positive for Covid-19
  11. Major coronavirus vaccine trial is paused to investigate unexplained illness
  12. Americans’ Readiness to Get COVID-19 Vaccine Falls to 50%
  13. Biden says campaign raised $383 million in September
  14. The Latest: 2nd presidential debate is officially canceled
  15. NOBTS and NAMB partner for church planting center in New Orleans
  16. Los Angeles Lakers win 17th NBA title

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  • Caring Well Hiring Guide – Download your free copy now and strengthen your efforts to make your church safe for survivors and safe from abuse.
  • Courage and Civility Church Kit – Pastors and church leaders download your free copy today to help guide your congregations through this polarized moment.
By / Oct 9

In this episode, Josh, Lindsay, and Brent discuss the president and first lady contracting COVID-19, other white house staff contracting COVID-19, airborne transmission of COVID-19, the first vice presidential debate, tropical storm Delta, the Lottie Moon Christmas offering, and the return of Tasmanian Devils. Lindsay also gives a rundown of this week’s ERLC content including a piece by Russell Moore with “What is the basis for Christian ethics?,” Josh Wester with “A closer look at the judicial philosophy of Amy Coney Barrett,” Amanda Hays with “4 conversations I’m having with my child about ‘Mulan’,” and Jeff Pickering and Travis Wussow with “Rolland Slade on how pastors can build partnerships with public officials.” Also in this episode, the hosts are joined by Dana McCain for a conversation about life and ministry. 

About Dana

Dana Hall McCain is a lifelong Alabamian and a graduate of Auburn University. She is a Resident Fellow with the Alabama Policy Institute where she writes editorial content for a host of media outlets dealing with faith, politics and cultural issues of the day. Her work regularly appears on multiple platforms including AL.com, Yellowhammer News, The Birmingham News, The Huntsville Times and Mobile Press-Register. Dana and her husband Greg “Scooter” McCain are members of First Baptist Church of Dothan, Alabama. She has served the church in the past as Women’s Ministry director and a Bible study leader. The McCains are parents to two teenagers. You can connect with him on Twitter: @dhmccain

ERLC Content

Culture

  1. POTUS and FLOTUS tested positive for COVID-19.
  2. Trump returns to White House, although doctors say he ‘may not entirely be out of the woods’
  3. 34 members of WH staff have COVID-19
  4. Senior Pentagon leadership quarantining after exposure to coronavirus
  5. CDC Acknowledges Coronavirus Can Spread Via Airborne Transmission
  6. 2020 vice presidential debate
  7. Trump says he won’t do next presidential debate after it goes virtual, Biden still wants town hall
  8. Tropical Storm Delta breaks record as it moves toward Gulf Coast, could become hurricane
  9. Lottie Moon Christmas Offering total exceeds goal at $159.5M
  10. After 3,000 years, Tasmanian devils are returning to Australian mainland

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Sponsors

  • Caring Well Hiring Guide – Download your free copy now and strengthen your efforts to make your church safe for survivors and safe from abuse.
  • Courage and Civility Church Kit – Pastors and church leaders download your free copy today to help guide your congregations through this polarized moment.
By / Oct 7

By now, most of America knows the name Amy Coney Barrett. For many, President Trump’s nominee to the Supreme Court became a familiar name during her confirmation hearing to the 7th Circuit Court of Appeals in 2017. At the time, as Barrett was sitting before the Senate Judiciary Committee, Sen. Diane Feinstein aggressively questioned her ability to serve as a judge on account of her religious faith. Summing up the intense exchange was Fienstein’s now infamous remark to Barrett, “The dogma lives loudly within you.” But often overlooked was Barrett’s response to the line of questioning: “If you’re asking whether I take my Catholic faith seriously, I do, though I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.”

Despite the senator’s protestations, Barrett was confirmed to the 7th Circuit, where she continues to serve. And in the days since she was officially nominated by President Trump to serve as an associate justice on the Supreme Court following the death of the late Justice Ruth Bader Gisnburg, Barrett’s life, faith, record, and judicial philosophy have come under tremendous scrutiny. In fact, before she was even nominated—when there was only speculation that the president was considering Barrett—multiple media outlets published outlandish attacks upon Barrett, attempting to draw links between the judge’s faith community and the dystopian novel The Handmaid’s Tale

Regardless of whether or not one agrees with Barrett’s beliefs, the most important thing about a judicial nominee is not his or her faith or religious background but the nominee’s judicial philosophy—a jurist’s understanding of and approach to the law. In fact, attempting to impose a religious test upon public officials or judicial nominees is strictly prohibited by Article VI of the Constitution. And concerning her own approach to impartiality as a judge, Barrett has said, “I think one of the great traditions in this country is that judges participate in the law, participate in the decision of cases, and rule even when they disagree with the outcome.”

As Russell Moore insists, these arguments over the Supreme Court nominee’s religious faith are an unnecessary distraction. And beyond these trivialities, there is much to commend Amy Coney Barrett as a potential Supreme Court justice. Below, I explore only a few of the features of her judicial philosophy as evidence of why I believe Judge Barrett would make an excellent addition to our nation’s highest court.

Summary of Barrett’s judicial philosophy

At the time of her nomination, the ERLC described Barrett’s judicial philosophy this way:

“Judge Barrett is a proponent of originalism, a manner of interpreting the Constitution that begins with the text and attempts to give that text the meaning it had when it was adopted; and textualism, a method of statutory interpretation that relies on the plain text of a statute to determine its meaning. Judge Barrett has previously voiced support for the judicial doctrine of stare decisis (or, following existing precedent) while maintaining that prior precedent is not sacrosanct.”

Twin methodologies

As seen in that summary, an important part of Barrett’s judicial philosophy is her commitment to the “twin interpretive methodologies” of textualism and originalism, an approach to interpretation that the judge shares with the late Justice Antonin Scalia for whom she clerked at the Supreme Court. The two terms essentially refer to the same methodology, with textualism corresponding to statutory interpretation and originalism applying to constitutional interpretation. 

According to Barrett, originalists “insist that judges must adhere to the original public meeting of the Constitution’s text.” Elsewhere she wrote, “For an originalist, the meaning of the text is fixed so long as it is discoverable.” For Barrett, a law means what the law was understood to mean when it was enacted. In this sense, Barrett’s originalism stands in contrast with the “living constitutionalism” of more progressive jurists. 

Similarly, Barrett has argued that textualists “emphasize that words mean what they say, not what a judge thinks that they ought to say.” A commitment to textualism, therefore, signals Barrett’s recognition of the fact that judges are not legislators. A key reason one can have confidence in her jurisprudence is her assertion that “Fidelity to the law means fidelity to the text as written.” 

Stare decisis

Alongside her commitment to textualism and originalism, another critical aspect of Barrett’s judicial philosophy is her view of stare decisis. Legal professionals, as well as those who followed recent Supreme Court confirmation hearings, will remember that the doctrine of stare decisis refers to legal precedent. It is a judicial policy that means “to stand by the things decided.” And it signifies a commitment to following existing precedent in deciding cases before the court. Barrett has described the doctrine as “ a sensible rule” because, as she notes, “among other things, it protects the reliance interests of those who have structured their affairs in accordance with the Court’s existing cases.” 

Undoubtedly, much will be made of her view of stare decisis should Barrett sit again before the Senate Judiciary Committee for confirmation. At the Supreme Court, challenges to abortion are measured by the precedents established in Roe v. Wade and Planned Parenthood v. Casey. And with the current ideological makeup of the court, proponents of abortion will desire for Barrett to affirm a strong commitment to stare decisis in hopes of rebuffing any legal challenges to these precedents.

Barrett affirms the importance of stare decisis as means of maintaining doctrinal stability. She recognizes that the court’s legitimacy hinges in part on its consistency. But even so, she acknowledges that the doctrine is only one means of promoting such stability. While she does recognize that certain rulings are secure as “superprecedents” (e.g., Marbury v. Madison; Brown v. Board of Education), she denies that such rulings are secured on the grounds of stare decisis. And notably, in a law review article Barrett specifically mentions that the decision in Roe has not achieved superprecedent status.

Conclusion

It is unreasonable for any group to expect that a jurist would issue only rulings consistent with the views of those who supported his or her nomination. But many times in recent decades, religious conservatives have faced bitter disappointment not because of a judge’s commitment to upholding the law but because of the apparent disregard of numerous judges for their former approach to jurisprudence prior to obtaining a lifetime judicial appointment. And while there is no way to know for certain, the judicial philosophy of Judge Barrrett gives every reason for confidence in the trajectory of her future as a jurist and, potentially, as a Supreme Court Justice.