Federal Courts and Nominations

Amy Coney Barrett: Talented judge, popular professor brings solid conservative credentials

The last time Amy Coney Barrett was nominated for a federal court judgeship, her deep religious convictions came under attack from Democrats who voted almost in lockstep against her.

Now that President Donald Trump has nominated her again – this time for a seat on the Supreme Court that she may hold for decades to come – Democrats once again are sure to vote against her. But not because of her religion.

Barrett, 48, proved to be a Teflon nominee in 2017 for a seat on the U.S. Court of Appeals for the 7th Circuit. Not only did she deflect Democratic Sen. Dianne Feinstein’s concern that “the dogma lives loudly within you,” but her Catholic and conservative backers used the phrase on T-shirts, tote bags and coffee mugs in a sign of support.

This time, her nomination to the seat held for 27 years by Associate Justice Ruth Bader Ginsburg – a women’s rights icon and the subject of far more paraphernalia – makes Barrett’s nomination a potential turning point for the nation’s judicial system.

The nominee acknowledged the moment in her remarks to a supportive crowd gathered in the White House Rose Garden. She paid homage to Ginsburg as “a woman of enormous talent and consequence” who “not only broke glass ceilings, she smashed them.”

If confirmed as Ginsburg’s successor, she said, “I would not assume that role for the sake of those in my own circle, and certainly not for my own sake. I would assume this role to serve you.”

Now rather than focusing on religion, opponents are warning of possible Supreme Court reversals on abortion, guns, health care and more.

But Barrett’s allies and colleagues herald her as an almost perfect choice based on her judicial opinions, academic writings and personal life as the mother of seven children, all of whom accompanied her to the White House Saturday.

“She is a respected scholar, an award-winning teacher, a razor-sharp lawyer, a disciplined and diligent jurist, and a person of the highest character,” Rick Garnett, founding director of Notre Dame Law School’s Program on Church, State, and Society, said in 2018 when Barrett competed for the nomination that went to Brett Kavanaugh.

Barrett has been winning kudos like that for decades. Every living law clerk who worked at the Supreme Court during its 1998 term signed a letter in 2017 endorsing her appeals court nomination, including those who worked for liberal justices.

“Professor Barrett is a woman of remarkable intellect and character,” the 34 former law clerks wrote. “Based on our observations, we came to respect Professor Barrett’s conscientious work ethic, her respect for the law, and her remarkable legal abilities.”

That popularity has been evident as well at Notre Dame Law School, where Barrett, an alumni, has been named professor of the year three times since 2002.

“She’s mind-blowingly intelligent, and she’s also one of the most humble people you’re going to meet,” said professor Stephen Yelderman, a recent law clerk for Associate Justice Neil Gorsuch. “Judge Barrett is the complete package.”

And it is palpable in her South Bend, Ind., community, where she juggles judging, teaching and, with her husband Jesse, raising seven children, including two adopted from Haiti and one with special needs.

“On a personal level, you’re amazing – to have seven children and do what you do,” Feinstein marveled during Barrett’s confirmation hearing in 2017.

That wasn’t all she said.

In a dialogue that cemented Barrett’s reputation among conservatives and defenders of religious freedom, Feinstein and other Democrats questioned whether the depth of Barrett’s Catholic convictions might affect her rulings from the bench on issues such as abortion.

“If you’re asking whether I take my faith seriously and I’m a faithful Catholic, I am,” Barrett responded, “although I would stress that my personal church affiliation or my religious belief would not bear in the discharge of my duties as a judge.”

‘Kingdom of God’

More than a decade earlier in 2006, Barrett described her vision for being a “different kind of lawyer.”

Addressing Notre Dame Law School’s 2006 graduating class, she reminded the students that their legal careers are but a means to an end: namely, building the “kingdom of God.”

“If you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love and serve God, you truly will be a different kind of lawyer,” she said.

Barrett’s past membership in the religious group People of Praise has been scrutinized by national media outlets. The group dates to the early 1970s and grew out of the “charismatic” movement, sharing some traits of Protestant Pentecostal groups. It has about 1,700 adult members today.

Some critics have suggested that its system of spiritual mentorship could raise questions of intellectual independence for Barrett on prospective cases. But Garnett said her participation in the group is “not so different from the lived religious experiences of millions of Americans.”

Fact check:‘Kingdom of God’ comment by Amy Coney Barrett lacks context in viral mem

If her religious views are less controversial this time around, her opinions and writings on abortion and other hot-button issues will take center stage.

Barrett has written that Supreme Court precedents are not sacrosanct, which liberals have interpreted as a threat to the 1973 Roe v. Wade decision legalizing abortion nationwide.

In a 2013 Texas Law Review article exploring when the Supreme Court should overturn past decisions, Barrett wrote that she agrees “with those who say that a justice’s duty is to the Constitution, and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”

She also wrote that the public’s response to controversial cases like Roe v. Wade “reflects public rejection” of the idea that legal precedent “can declare a permanent victor in a divisive constitutional struggle.”

‘Value of human life’

A former member of the University of Notre Dame’s “Faculty for Life,” Barrett signed a 2015 letter to Catholic bishops that affirmed the “teachings of the Church as truth.” Among those teachings: the “value of human life from conception to natural death” and marriage-family values “founded on the indissoluble commitment of a man and a woman.”

Those views give anti-abortion groups hope that with her vote, the Supreme Court will uphold efforts by states to further restrict abortion rights – and potentially overrule Roe v. Wade some day.

“This is a turning point for the nation in the fight to protect its most vulnerable, the unborn,” Marjorie Dannenfelser, president of the Susan B. Anthony List, which opposes abortion, said upon Ginsburg’s death last week.

In a 2013 speech at Notre Dame on the 40th anniversary of Roe v. Wade, Barrett said the ruling “essentially permitted abortion on demand.” But she declared it “very unlikely” the Supreme Court ever would overturn its core protection of abortion rights, according to coverage of her remarks in university publications.

“The fundamental element, that the woman has a right to choose abortion, will probably stand,” the student newspaper The Observer quoted her saying. “The controversy right now is about funding. It’s a question of whether abortions will be publicly or privately funded.”

Beyond abortion, liberals are most concerned about Barrett’s impact on health care, and specifically the Affordable Care Act. The law is coming before the court again in November, with Texas leading a group of states seeking to strike it down. If confirmed by the Senate before Election Day, she could be on the bench to hear that case a week later.

Barrett wrote in 2017 that Chief Justice John Roberts pushed the law beyond its plausible meaning in order to save it. Roberts creatively interpreted as a tax the law’s penalty on those who don’t buy insurance, allowing the court to uphold the constitutionality of the law, she said.

She also criticized the Obama administration’s method under the health care law for giving employees of religious-affiliated organizations access to birth control without having the institutions pay for it. Religiously-affiliated charities and universities were allowed to shift the cost on to their health insurance providers, but they argued that still left them involved.

A letter Barrett and more than 300 academics signed said the accommodation “changes nothing of moral substance and fails to remove the assault on religious liberty.” The Supreme Court in July ultimately ruled those employers do not have to be involved in providing contraceptive coverage.

More:Supreme Court allows religious, moral exemptions for employers opposed to contraceptives

‘Impressive as they come’

During her three years on the U.S. Court of Appeals for the 7th Circuit, which includes Indiana, Illinois and Wisconsin, Barrett has ruled in cases involving abortion, sexual assault, guns, race and immigration. Among them:

Abortion: Barrett signed a dissent indicating she would have reheard Indiana’s defense of a law banning abortions based on sex, race or disability. Indiana did not seek the appeals court’s review, but the dissent nevertheless referred to “eugenics” and said “none of the (Supreme) Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.” The high court later refused to consider the state’s appeal.

Sexual assault: Barrett and two other judges reversed a lower court ruling and allowed a male student to sue Purdue University for suspending him after finding him guilty of sexual assault. The student’s “allegations raise a plausible inference that he was denied an educational benefit on the basis of his sex,” she wrote.

Guns: Barrett dissented when the court upheld a decision restricting the Second Amendment rights of a felon convicted of mail fraud. She said non-violent offenders should not lose their constitutional right to firearms possession.

Immigration: In dissent, Barrett defended the Trump administration’s rule denying immigrants permanent residence if they become regular users of public assistance.

Race: Barrett helped to block the U.S. Equal Employment Opportunity Commission’s effort to stop an employer from transferring Chicago-area employees based on their race or ethnicity. The agency had accused AutoZone of making the transfers to reflect area demographics. Three dissenting judges said the policy “deprived people … of employment opportunities at their preferred geographic location.”

Age discrimination: Barrett ruled that the Age Discrimination in Employment Act does not apply when policies impact plaintiffs unintentionally. The ruling went against a 58-year-old job applicant who lost out to someone half his age when the company sought to hire a person with less than seven years’ experience.

Barrett’s opinions have won broad praise from conservative lawyers and academics. She is an adherent of originalism and textualism, judicial philosophies that teach judges should interpret the Constitution and legislation as written.

“President Trump has again fulfilled his promise to appoint justices who are not only exceptionally qualified but willing to bravely stand up for the Constitution as it’s written and not bend to political pressures or personal preferences,” said Leonard Leo, an adviser to the White House on judicial nominations who also serves as co-chairman of the conservative Federalist Society. “Judge Barrett will be a great role model for future generations seeking to ensure that the rule of law advances the dignity of all people.”

“In terms of intellectual caliber, she is as impressive as they come,” said Jonathan Adler, a professor at Case Western Reserve University School of Law, where Barrett spoke in 2019. “The combination of intellect, poise, thoughtfulness and principle is really remarkable.”

Cajun cooking, child-rearing

Barrett was born in New Orleans, from which she and her husband retain a penchant for Cajun cooking and Mardi Gras parties. The oldest of seven children, she graduated from Rhodes College in Tennessee before enrolling at Notre Dame Law School, from which she graduated first in her class in 1997.

“My recollection is that she was quietly brilliant, reasonable, kind and a good person,” recalled Tom Arkell, who graduated the same year. “If there was one person in my class I would have expected to become a United States Supreme Court justice, it is Amy Coney Barrett.”

She clerked for two renowned conservative jurists – Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit, then-Supreme Court Associate Justice Antonin Scalia. It was during the latter clerkship that she earned the respect of her three dozen colleagues.

“I remember being struck about how she commanded the room, and everyone respected her,” said Nicole Garnett, who clerked for Associate Justice Clarence Thomas the same term. “Even then, she stood out. And this was not a slouchy bunch.”

Her liberal colleagues felt the same way. “Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers,” Harvard law professor Noah Feldman, who testified in favor of Trump’s impeachment last year, wrote Saturday in a Bloomberg column.

After working briefly in private practice, Barrett returned to Notre Dame to teach in 2002 and has been doing so ever since. For a class on evidence, Barrett referred students to the plot of “My Cousin Vinny,” a 1999 film in which two young friends from New York find themselves charged with murder and robbery in Alabama.

Rev. John Jenkins, Notre Dame’s president, praised Barrett in a statement last week. “The same impressive intellect, character and temperament that made Professor Barrett a successful nominee for the U.S. Court of Appeals would serve her equally well as a nominee for the nation’s highest court,” he said.

Barrett’s husband is a former federal prosecutor now working in private practice. They are the parents of four girls and three boys who smiled through Saturday’s Rose Garden ceremony. Trump noted that if confirmed, Barrett would be the first mother of school-age children to serve on the high court.

“I’m better known back home as a room parent, carpool driver and birthday party planner,” Barrett said.

As for their youngest child, Benjamin, who has Down syndrome, Barrett has spoken of facing “unique challenges.”

“But I think all you need to know about Benjamin’s place in the family is summed up by the fact that the other children unreservedly identify him as their favorite sibling,” she said in 2017 – and repeated almost verbatim Saturday.

In a 2018 law school graduation speech at Notre Dame after being chosen by students as distinguished professor of the year for the third time, Barrett emphasized that the law is intended to serve everyday Americans.

“Diseases are named after the doctors who identify them. … But cases are different,” she said. “Cases are not named after the lawyers who litigated them, or the judges who decided them, but after the people on whom they had the greatest effect.”

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