The Nomination Of Amy Coney Barrett – With Kelly Shackelford: Do you know how many times a president has nominated a Supreme Court justice during an election year? Why did Democrats walk out on the committee vote to move the nomination of Amy Coney Barrett forward? How has the polling changed since the judicial hearings? Will this move the Supreme Court away from being an activist court? What is a Supreme Court justice supposed to do anyway? Tune in to hear Kelly Shackelford explain why the seating of Judge Amy Coney Barrett will be a great thing for our country!
Air Date: 10/27/2020
Guest: Kelly Shackelford
On-air Personalities: David Barton, Rick Green, and Tim Barton
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Transcription note: Â As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.
Faith and the Culture
Welcome to the intersection of faith and the culture. It’s WallBuilders Live, where we’re talking about the hottest topics of the day from a biblical, historical and constitutional perspective. You can find out more about us at our website, wallbuilderslive.com. But my name is Rick Green, I’m a former Texas legislator, and America’s Constitution coach. And I’m here with David Barton, America’s premier historian and our founder at WallBuilders, and Tim Barton, national speaker and pastor and president of WallBuilders.
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Kelly Shackelford from First Liberty
Alright, David, Tim, later in the program, we got Kelly Shackelford back with us from First Liberty always good to have him on the show. We’re going to be talking about Amy Coney Barrett’s nomination and potential approval by the Senate tomorrow. I think everybody says the votes are there and we expect it to go through.
I know the Dems walked out on the committee meeting, I’m assuming they’ll probably do the same thing here. But either way, if this goes through, guys, how does this change things with the US Supreme Court?
Well, by the way, just mentioning the fact the Democrats walked out, that was a procedural move. Under the rules of the Senate, in order to have a committee vote, you have to have at least two members of the minority party in the chambers. And so the Democrats said if we hold everybody out, then you can’t have two members, while the other part of the rule says you can overcome that by having a unanimous vote if every member of the majority party on the committee is present. And if they all vote in agreement unanimously, then you don’t have to have two minority members.
So that was kind of like an administrative or rules ploy to try to slow things down, which did not work. There is with that unanimity that we saw in the committee vote, it kind of suggests probably how it’s going to end up on the floor as well.
And unfortunately, the Senate was in session, and so all the Republicans were there. So it’s kind of a wasted move, and definitely a gameplay move that has no effect other than the Democrats can say to their base, hey, guys, look, we didn’t support her, we think it’s a sham, even though this has happened a whole bunch of times historically, we disagree with it. And so it definitely is just a political game being played.
The Majority of Americans Agree
But the rules are in place to allow for how to overcome some of the game playing. And so republican said, no, we’re going to do it. And even right now, the majority of Americans are in agreement that Amy Coney Barrett should be confirmed, and so that the move that’s being played right now by some of these Democrat senators is contrary to the majority of Americans.
Yeah, we’ve seen the polling change from the time she was nominated just few weeks ago, only 24% of Americans supported her confirmation. After she went through the hearing, is just now up to 51% and still increasing. So it is a majority and it is doubled from what it was just a few weeks ago.
Well, and especially when people heard some of her responses and answers, they realize, wow, she actually looks like a very normal, wholesome, decent person. She’s married. She has kids. She has adopted kids. She’s very smart. She’s very articulate. The moment that she just owned and was queen of the internet when Senator Cornyn says, so we have all these notebooks and notes and, right, all these things that we’re reviewing, what do you have? And she holds up this blank notepad. She says, well, this is the only thing on my table and it has no notes on it. Right?
So you realize okay, she is brilliant, and then lots of funny memes about how can she do this? Well, she has seven kids, she’s used to answering dumb questions all day long, write the sentence no problem for. But what happened is that it she was really normalized through the process and this Judicial Committee that people saw she doesn’t look a monster, she’s not a witch, she’s not a terrible person, and she does believe in the Constitution. She does want to uphold that.
A More Constitutional Court
And Rick, to your very first question of how would this change things? We’ve already seen a couple decisions over the last couple of weeks that were a 4:4 decision with John Roberts, Chief Justice John Roberts siding with liberals and being able to prevent things from even being heard at the Supreme Court or from things being overturned or changed. Because even though, John Roberts was appointed, arguably, as from a Republican president, but arguably to be kind of this moderate and kind of conservative, he has shown himself over the last couple of years to really not be conservative in most regards.
And so having someone who, when Amy Coney Barrett comes on, she is outspoken on her views of life, of family, of the Constitution, and so it does give a very, very strong position to a court that now the majority of them are people that believe and uphold the Constitution and have constitutional positions, and can help move the Supreme Court away from being an activist court to being a much more constitutional court. So this is really big and really good for the US Supreme Court.
Well, Kelly Shackelford, of course, follows these appointments very closely over at First Liberty. They argued before the Supreme Court often and so they’re really tuned in on these things. Kelly will be with us when we come back from the break. Stay with us, you’re listening to WallBuilders Live.
A Moment from American History
This is Tim Barton from WallBuilders with another moment from American history. As the American war for independence began, the president of Yale was the Reverend Naphtali Daggett. When New Haven, the home of Yale came under attack, about 100 citizens rushed out to meet the British. The Reverend Daggett gouged by them on horseback. His clerical robes flowing behind him in the wind, and he took up a solitary position on top of Hill.
The 2500 British soon for the townsfolk to fly, but the Reverend Daggett continued to stand alone, firing down on the advancing troops. A British officer confronted him. “What are you doing there, you old fool? If I let you go, will you ever fire again on the troops of His Majesty?” “Nothing more likely” was the preachers reply. America’s early pastors have personally confronted danger and courageously lead their communities.
For more information on Pastor Daggett and other colonial patriots, go to wallbuilders.com.
Welcome back to WallBuilders Live, thanks for staying with us. Kelly Shackelford, back with us from First Liberty. Movie star, Kelly Shackelford; not just Kelly Shackelford, movie star.
Hey, buddy. Thanks for coming on, man.
That’s scary stuff.
Fantastic job on Trump Card, by the way. I know that’s not our topic for today’s show, but just a great, great part of that movie on religious liberty. Really well done, man.
Thank you. Yeah, people who haven’t seen it, it’s streaming so they can watch it wherever. There’s like a bazillion different streaming services that you can watch Trump Card from, and Dinesh D’souza always does such a good job. So it’s always thought provoking, and very good, and he did this one well too.
Yeah. But trying to tell everybody, the name is kind of throws you off, because I thought it was going to be all about Trump. It’s really about how to defeat the socialist, how to defend religious liberty. I mean, he hits all of these major issues and has guys like he was the experts in there. And so it’s really educational. In fact, I’m going to make it required viewing for Patriot Academy students before they come. Is just really, really well done.
Anyway, didn’t mean to sidetrack us right off the bat. Kelly, obviously, you guys are watching all of the appointees of President Trump over the last four years in the judiciary, and we’ve had you on to talk about all of that. The big one now, of course, Amy Coney Barrett, looks like definitely going to go through, the votes are there. So we just thought, we wanted to get your thoughts on her what you’ve analyzed about that, how you see this change in the court?
Well, I think this is a great thing on so many levels. Number one, we’ve got somebody here who, it might be really the first time that we’ve put up somebody who was openly and unashamedly prolife. In the past, it’s always been somebody who’s like, you know, people think or they don’t know, well, with Amy Coney Barrett, it’s clear in her personal life where she is. And an idea that we’re not now excluding people from being judges because of what personal beliefs they have, I think it’s a great step in the right direction immediately. But then when you look at…
A Judge’s Job
Not that they didn’t try to exclude her because, right?
Oh, yeah, they would have liked to, because really, that kind of stuff is irrelevant. It’s what kind of Judge are they going to be no matter what their beliefs are? I mean, there’s numerous opinions where I’ve seen Justice Clarence Thomas, say, hey, I think this was silly. But you know what, that’s not my job. My job is to simply look at the original meaning and interpret what I’ve been given. So that’s what you want for Judges; Judges who don’t want to be politicians; Judges, you don’t think they’re supposed to decide the big issues for us, that they’re just supposed to follow what the law says. And…
And weren’t that kind of cool to hear her say that too? I mean, it was almost like you had a good class on what the what the judiciary’s role is as you watch these hearings, and she made that very clear, I may not agree with it, but I’m going to follow the law?
But she’s so good on so many levels. I mean, first, from our standpoint, as a religious liberty group, she just grade on religious freedom. I mean, she’s taught on it, she’s written on it, she’s got opinions on it, but she also lives it, and she really believes. So she’s going to be so solid on protecting our Constitution and the religious freedom clauses. That gives me a lot of encouragement.
Not from Harvard or Yale
But I think just overall, she followed the Scalia approach. She clerked for Scalia, who was obviously very thoughtful on this. She’s written larvae articles on how to proper interpretation, properly acting as a Judge. But then I love a lot of the extras. I mean, right now, every Justice on the Supreme Court is either from Harvard or Yale. She’s going to blow a hole right through that.
She comes from Middle America. She’s got seven kids. She’s got her kids in a van. I mean, I love just some of the things even she said during the hearings, it’s not the law of Amy. She’s brilliant, but yet she’s an American that all Americans can understand that understand their lives. And I think they feel she’ll understand theirs.
Yeah, I agree, man. Do you think people are getting past all the brouhaha about this happen so fast? I mean, regardless of the fact that this is the norm, even the days for this approval are still within the average of Justices and all that, but because the Democrats made such a big deal out of that, it did influence some of those middle of the road people that just don’t know the history. I mean, sometimes these folks get nominated the next day after somebody dies, you know, but it seems like that finally went away. And when people started watching her on TV, she won the day. I mean, it seems like she’s really won people over.
She has the polling shows that the majority of the country wants her on the court at this point. You’re right that those attacks on that there’s something inappropriate about doing a justice now are just false. I mean, they’re not what history shows. We’ve had 29 times during an election year, where up to Supreme Court seat has come open. And guess how many times the President has nominated someone for that seat? 29. 29 out of 29. So what the President did here is what every president has always done.
It’s only sometimes is what you’re saying, only sometimes? 29 out of… Oh, no, wait that. Yeah, every time I like that.
Yeah. And they’ll make an issue, though, about because well, four years ago, you didn’t do Merrick Garland. Well, there’s also a really strong history of the times where the President and the senate are the same party, because there’s two parts to this process. Almost every time, think of the 19 times that’s happened, 17 the person is just pushed right through. Not surprising, same party, right? They agree.
When you have a different party in the Senate and the Presidency, there’s two parts of the process required. And guess what, it doesn’t happen? And that’s not surprising. So guess what? You look back four years ago, Merrick Garland, you’ve got a President and a Senate of different parties, didn’t happen. They wait until the election.
But when you have it like now where when the people elected both that Senate and that President and one of the reasons they did it was Judges, you’d be really derelict of your duty if you didn’t go ahead and fulfill your duty and put the person on the court. That’s one of the very top reasons why people elected those people that are in the process now of getting Amy Coney Barrett on the court.
So the attacks are really baseless. They’re historically baseless. They’re logically baseless. There’s just no reason except they’re just upset. On the Democratic side, that Ruth Bader Ginsburg didn’t step down when there was a Democratic president and a Democratic Senate. And but the timing is the timing and only the Lord controls the timing certainly when somebody is going to leave this earth. And but when that happens, the President is going to nominate and certainly if the Senate is the same party, they’re going to confirm and that’s what’s happening now.
Judges are not Politicians
With all of, I don’t know any other way to say it, but crying and whining, especially even from Biden himself about how this is supposed to be the American people’s voice and all. I could just imagine the Kelly Shackelford kind of the curl of the lip is you’re trying not to smile, when you really are laughing inside. I mean, you had to be chuckling every time you would watch these guys and gals say the people are supposed to have the voice in this and you go wait, they did they what you just said is so right that people had the voice.
They elected Donald Trump president for four years, as Ruth Bader Ginsburg said, not three, even though she was referring to a different president at the time, and they elected the Senate. I mean, it’s really on this issue as much as any other, if you go back and look at those senate campaigns, Judges, that’s a major issue in the idea of getting conservative originalist Judges and not the Obama radical leftist Judges was a major reason the Senate was taken over by the Republicans.
And this is what the people want. They want judges who are Judges, not Judges who are politicians, not Judges who think, oh, I’m going to make moral decisions for the country and then I’m going to foist those on everybody from our little backroom and all it takes is five of us, and we control the country, that’s not what the people want. They want Judges who are going to restrain themselves, simply say, here’s what the law says and then let the people make the legislative decisions, the policy decisions for the country.
And boy, if you ever wanted a poster child for that, it’s Amy Coney Barrett. I mean, brilliant, thoughtful, knows exactly the proper approach for Judges, and I think represents Middle America. I mean, a mom with seven kids in a van and two adopted kids and one special needs child, I mean, just really, I think, is in tune. And I can’t think of a better choice than what she’s been. And of course, she just did a tremendous job.
A Great Role Model
One of the things, Rick, that caught my attention because I have a 24 year old daughter is she watched this and she has a baby, she’s a mom, and she was really impressed. She said, I really liked this Amy Coney Barrett, and it just hit me, what role model did the young Christian, intelligent professional women have? There aren’t many. There really are almost none. But Amy Coney Barrett is that now. And I really think that’s a great thing for the country. And the feminists have always been kind of like, strong women, they’re all in favor of as long as they’re liberal, but that’s not what it’s supposed to be about.
And Amy Coney Barrett, I think shows you can be a mom, you can be a person of faith, you can be very successful, very bright, very accomplished, and very really classy. And I think the image that she gave was just a tremendous role model to young ladies across the country.
Yeah, all of those things, and still very family oriented. And obviously, their family is the center of their life. Very, very cool, and she did. You said something earlier that I thought, it’s almost like she in some ways was channeling the founding fathers on this idea that the Supreme Court is not a good policymaking branch or area of government. It’s just the wrong place to make those kinds of decisions [inaudible 17:27] and many other founders had quotes about that. And she said several times something similar to that.
So she’s bringing back that idea of the proper role of the court to not make those decisions about policy, but as you said, for the legislature to do that. Before let you go, Kelly, tell us where you think this kind of changes the court? I mean, obviously a very she should be from all accounts, a very different jurist than Ruth Bader Ginsburg.
A Conservative Majority
But in terms of the total numbers on the court, does this give us a solid conservative majority now rather than having to wait for Roberts to be kind of the Kennedy and we don’t know for sure what he’s going to do, not that we know what the others will do, but definitely more confidence at the least be conservative?
Yeah, absolutely. I mean, the first thing I’m looking at is we’re fighting these church cases all across the country during this pandemic, where they’re trying to discriminate against churches. I mean, we just won our lawsuit in Washington DC about a week ago where you can protest with thousands of people outdoors. But if you have a church service with 101 people outdoors, it’s a crime. Well, that’s just clearly unconstitutional and we want an injunction, a federal injunction to say that that’s unconstitutional.
The problem is, if you look around the country right now, the law is just a mess: you’re not sure if the government controls our churches or not. And this is going to get to the Supreme Court. And so far, Justice Roberts has been on the wrong side of all these attempts to get to the Supreme Court. He’s been obviously very disappointing in a lot of these.
But I feel really strongly about Amy Coney Barrett. I feel like she’s really solid on religious freedom, and that she will be a really strong vote for religious freedom and our Constitution, and that will actually tip the balance. And so I think the timing is excellent because of what this will mean for churches across the country and their protections.
So great timing, obviously, it might even come into play with the election. If there’s a bunch of lawsuits about the election, I mean, the last thing we need in this country is a 4:4 tie at the Supreme Court with chaos erupting all over the country. I mean, at least now, we will have a solid 9 justices, there won’t be a tie, and we can get conclusions on these really urgent situations that are arising.
Yeah, it could be very critical. I mean, certainly, the democrats have said we got our 600 attorneys are planning to litigate the whole thing. So it’s going to be vital that we have a full court when that happens. Kelly Shackelford, bless you, brother, website firstliberty.org, did I get that right?
firstliberty.org, I encourage people to get on that ‘Insider Alert’ so they could see what’s happening each week.
Yeah, not just with this situation with Supreme Court all the cases you guys are dealing with, the other appointments throughout the judiciary, you guys cover so much. So get on that ‘Insider Alert’ and also go watch ‘Trump Card’ see Kelly Shackelford on the big screen. Hey, love you, brother. God bless you. Thanks for your time today.
Stay with us, folks, we’ll be right back with David and Tim Barton.
Have you ever wanted to learn more about the United States Constitution but just felt like, man, the classes are boring or it’s just that old language from 200 years ago or I don’t know where to start? People want to know but it gets frustrating because they don’t know where to look for truth about the Constitution either.
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We call it the Quickstart Guide to the Constitution, because in just a few hours through these videos, you will learn the citizens guide to America’s Constitution, you’ll learn what you need to do to help save our constitutional republic. It’s fun, it’s entertaining and it’s going to inspire you to do your part to preserve freedom for future generations. It’s called Constitution Alive with David Barton and Rick Green. You can find out more information on our website now and wallbuilders.com.
We’re back here on WallBuilders Live. Thanks for staying with us. Thanks to Kelly Shackelford for joining us as well. Be sure to check out their website firstliberty.org, that’s firstliberty.org. David, Tim, I mean, you know, Kelly, obviously is excited about this. He sees the fundamental change here for a long time. I mean, this almost makes Robert irrelevant. I mean, this gives us a solid conservative vote without him.
Religious Liberty Issues
It makes him irrelevant in several issues. One is on religious liberty issues, another is own life issues. One of the cases we should have won this year where Roberts went against us was a law that would have essentially just gutted Roe v. Wade, and John Roberts had to reverse himself from five years ago to end up with the pro- abortion side of the court on that. Otherwise, we would have won that 5:4 rather than lose it 5:4. She will not be that.
As Kelly pointed out, this is the first openly prolife person to be appointed to the Court, everybody else had to kind of hide their views. And I’m neutral, and I’m a Judge, and I’ll look at what [inaudible 22:35] she’s openly prolife. So if the law is right, and she opposed the law, and I love what Kelly said about he’s seen a number of times, where the Clarence Thomas has personally said, I think this law is really stupid.
But you know what, it’s a law, and I’m not supposed to be making laws. So I’m upholding the law as dumb as it may be because it’s not unconstitutional. And so having that kind of neutrality as a Judge is a really important thing and I think she’ll bring that. But we’ll see that change from Roberts, even in the life issue
And to your point, the solution for a really bad law is for the legislative body to pass a different law, to change that really bad law. And this is where it will be such a big shift of philosophy, from having judges who say, you know what, I think this is what the law should be, so I’m going to make a ruling saying this is what the law is. This is where it goes back to much more of a constitutional position saying that if we don’t like a law, there is actually a way to change the law.
Separation of Powers
And it’s not through the court, it’s going back to the legislative body who actually are the ones who writes and creates law. And so it is, again, a really good thought that we can have a shift going from an activist Supreme Court to a more constitutional Supreme Court, which was the way it was designed and the way it functions the very best. And she certainly someone who can help bring that there.
Dad, you mentioned with the prolife position with a few things that we’ve not been able to get done with John Roberts and just some of the positions he’s been on, there’s also been a lot of Second Amendment cases that have been appealed to the US Supreme Court that they’ve been ultimately turned down. That it was refused to be heard at the Supreme Court, because arguably, they probably didn’t have the votes for some of that.
It’ll be interesting now with someone who is much more of a constitutionalist, even though she, to my knowledge has not done a lot dealing with the Second Amendment. As someone who’s a constitutionalist, the Second Amendment is not that confusing when it comes to constitutional issues and positions. It’ll be interesting to see if more Second Amendment issues now make their way to the US Supreme Court. It’s been a long time since there’s been a really Second Amendment case at the US Supreme Court, because there have been justice just turning it down, don’t want to deal with that issue right now. But having people that are constitutional could shift even some of those cases that are coming up.
Another one that could shift that could be a real surprise is the case defining marriage. Because even just a couple weeks ago, you had Justice Alito and Justice Thomas both saying that was a really bad decided case, and by the way, Chief Justice Roberts said the same thing, that was a badly decided case. And so there is the possibility that she will be the fifth vote to do something different on marriage. That doesn’t change the LGBTQ issues, but it does change the definition of marriage because the court should not have redefined marriage, that was not its role. So that could be a real difference. That’s another one that might be interesting to watch.
The Nomination Of Amy Coney Barrett – With Kelly Shackelford
Well, it’s going to be huge, it’s going to be interesting to watch just how the court changes over the next few years as a result of this addition. And it’s all about the mindset, it’s all about the worldview and the perspective on the proper role of the court. In other words, this is a justice that will, based on what she’s done in the past, and based on what she’s written, and based on what she even said in her hearings, is clearly going to try to push the court back into its proper role, which is not a policymaking entity. And we’d love to see that happen.
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