Amy Coney Barrett: Scalia protege in outlook, not temperament
Jennifer Brady, a centrist Democrat and former English professor at Rhodes College, can鈥檛 reconcile two things: her strong admiration for Supreme Court nominee Amy Coney Barrett 鈥� one of the top two students she had in 36 years of teaching 鈥� and her deep concern about Senate Republicans pushing through her nomination so late in an election year.
鈥淗ad the Republicans not cynically blocked [President Barack Obama鈥檚 2016] Merrick Garland nomination, I think hers would have been unproblematic,鈥� says Professor Brady. 鈥淎my is a self-professed Scalia prot茅g茅, but without his abrasiveness.鈥�
Indeed, Judge Barrett shares the originalist judicial philosophy exemplified by the late Supreme Court Justice Antonin Scalia, but approaches her work with a far more collegial demeanor than her famously irascible former boss. Former colleagues and legal experts say that could enable her to build greater consensus among fellow justices, meaning that if the Senate confirms her nomination, she may deliver not only an extra vote but stronger conservative rulings.
Why We Wrote This
The GOP push to confirm a Supreme Court justice weeks before a presidential election has been contentious. This fight over process has drawn so much attention that many voters may still know little about the nominee herself, federal Judge Amy Coney Barrett.
That combination will be 鈥渟cary for liberals,鈥澛犅燞arvard law professor Noah Feldman, who clerked with Judge Barrett and endorsed her in a recent op-ed despite largely disagreeing with her judicial philosophy. 聽
At confirmation hearings this week before a socially distanced Senate Judiciary Committee, Democratic senators are casting President Donald Trump鈥檚 eleventh-hour nomination of Judge Barrett as an attempt to circumvent the will of the people and ram through a nominee who will support conservative policy goals that the Republican Party has been unable to achieve from Congress or the White House.
Chief among those is striking down the Affordable Care Act, which the Supreme Court is set to review beginning Nov. 10. Democrats are also particularly concerned that Judge Barrett would support overturning Roe v. Wade, the landmark case enshrining a woman鈥檚 right to abortion.聽An additional disclosure Judge Barrett provided to the committee Oct. 9 includes she and other members of Notre Dame鈥檚 University Faculty for Life group signed calling for 鈥渢he unborn to be protected in law and welcomed in life鈥�.聽
鈥淏y replacing Justice Ruth Bader Ginsburg with someone who will undo her legacy, President Trump is attempting to roll back Americans鈥� rights for decades to come,鈥� said California Sen. Kamala Harris, a member of the Judiciary Committee and Joe Biden鈥檚 running mate. 鈥淓very American must understand that with this nomination, equal justice under law is at stake.鈥澛�
鈥淓veryone wanted to talk to Amy鈥�
Judge Barrett, a devout Roman Catholic who graduated at the top of her class from the University of Notre Dame law school, got her professional start as a clerk for Judge Laurence Silberman, a circuit judge of the U.S. Court of Appeals in Washington, D.C.
Judge Silberman took her and other clerks under his wing, mentoring them over the bad cafeteria food at the Department of Labor, where he had formerly worked. Her position there opened the way for her to clerk for Justice Scalia, a lion of conservative jurisprudence. He became both reviled and beloved as a leading voice for originalism and textualism, which hold that the Constitution and statutory law should be interpreted according to their publicly understood meaning at the time of passage.
The young Ms. Barrett embraced her mentor鈥檚 judicial philosophy. Yet her views were frequently sought by her fellow clerks, including those working for liberal justices who saw the Constitution as a living document that should be interpreted according to the times.
Traci Lovitt, a fellow clerk during that 1998 term, says Ms. Barrett was very good at distilling the key legal principles at the heart of a case.
鈥淣o matter what their legal philosophy was 鈥� everyone wanted to talk to Amy,鈥� says Ms. Lovitt, now a partner with Jones Day who recalls clerks congregating around her at the long lunch tables in the Supreme Court where they would all eat together most days.
One reason for that, she adds, was that Ms. Barrett was approachable and kind 鈥� a trait not necessarily shared by all in the ultra-competitive group of several dozen top law school grads. 鈥淪he would want to hear everybody鈥檚 views, talk through the critical issues, and was very respectful of everyone鈥檚 opinion,鈥� says Ms. Lovitt, who worked for Sandra Day O鈥機onnor and saw some cases differently than Ms. Barrett, her jogging partner. 鈥淓ven if you disagreed with her, you walked away still respectful of Amy.鈥�
By the end of the year, their jogs down the Washington Mall came to include female clerks for five different justices, including liberal Stephen Breyer.
After a stint in private practice, Ms. Barrett was recruited to teach at her alma mater. Only 30 at the time, But she quickly gained respect,聽earning the school鈥檚 professor of the year award three times.
As she and her husband, fellow lawyer Jesse Barrett, started a family, she would keep a basket of toys in her office. With two children adopted from Haiti and five biological ones, including a son diagnosed with Down syndrome, her ability to juggle family and professional responsibilities 鈥� as well as volunteer for everything from carpooling to classroom mom to mock trial coach 鈥� has drawn a mixture of awe and disbelief. (One key help: Mr. Barrett鈥檚 aunt has pitched in on child care for more than 15 years.)
The Barretts are also reportedly members of People of Praise, a charismatic group that is聽ecumenical but largely comprised of Catholics.聽Members make a lifelong聽聽to their fellow worshippers and to God, raising questions for some about whether that commitment would affect Judge Barrett鈥檚 impartiality on the bench. And even fellow Catholics have raised questions about聽appointing a sixth Catholic judge聽to a nine-justice court in a country where Catholics make up about聽聽of the population but play an outsize role in the conservative legal movement.聽
In 2019, two years after Judge Barrett was grilled by Democratic senators in her confirmation hearing for the U.S. Court of Appeals for the 7th Circuit, she said in a聽聽hosted by Hillsdale College that questions about faith have no place in the confirmation process, citing the Constitution鈥檚 ban on religious tests for public officers. While the public should be 鈥渁bsolutely concerned鈥� about whether a judge would be able to set aside personal preferences 鈥� be they moral, political, or religious 鈥� she added, it would be wrong to imply that 鈥減eople of faith would have a uniquely difficult time separating out their moral commitments from their obligation to apply the law.鈥�
The example of John Adams
In that same Hillsdale speech, she anchored her views about the duty of a judge in the example of John Adams, an ardent critic of British rule who nevertheless agreed to defend eight British soldiers聽聽in the 1770 Boston Massacre when no one else would take the case.
鈥淔acts are stubborn things,鈥� Adams said during the trial, 鈥渁nd whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.鈥�
All eight soldiers were acquitted of murder, with two declared guilty of manslaughter, a less serious charge. Though Adams couldn鈥檛 have felt a lot of sympathy for the soldiers, she noted, he believed it was vital that they receive a fair trial. That lesson, she added, holds particular resonance for a judge.
鈥淎 judge is obligated to apply the law as it is and not as she wishes it would be,鈥� said Judge Barrett, who echoed the point in her this week. 鈥淪he is obliged to follow the law, even when her personal preferences cut the other way, or when she will experience great public criticism for doing so.鈥�
Colleagues and former students praise her ability to bring out the best legal arguments on both sides of a question 鈥撀燼 skill she has said she developed by going toe-to-toe with Justice Scalia as he prepared for oral arguments.
鈥淚n faculty meetings, she was never one to be polarizing 鈥� she was always the one who took people鈥檚 opinion seriously, regardless of where they came from,鈥� says聽Nicole Stelle Garnett, a Notre Dame law professor and friend of Judge Barrett since they were clerks together on the Supreme Court in 1998.聽鈥淚 think that鈥檚 what you see in her opinions, I think that鈥檚 what you see of her as a teacher and colleague, I think that鈥檚 what you鈥檒l see of her as a justice.鈥�
Chase Giacomo, a combat veteran who took a class from her in his first year of law school before transferring to Harvard, said she reminded him of his West Point professors, who put serving the country above ideology.
鈥淪he worked very diligently to never infuse the classroom with her personal views,鈥� he says. 鈥淚 think she was so purposeful in not doing that, because she wanted us to understand that justice doesn鈥檛 serve a party, justice doesn鈥檛 serve a race, justice doesn鈥檛 serve a religion 鈥� justice is for everyone.鈥�
But Senate Democrats are deeply concerned that the appointment of a Scalia prot茅g茅 would undermine the rights accorded to women, minorities, and the LGBTQ community through decades of court battles.
Refused to answer questions
At the Sept. 26 Rose Garden ceremony when President Trump introduced Judge Barrett as his nominee, she said that 鈥淸Justice Scalia鈥檚] judicial philosophy is mine, too.鈥�
鈥淚 don鈥檛 think we鈥檝e always had that much candor,鈥� says聽Richard Garnett, a professor of law and political science at Notre Dame University in Indiana聽and husband of Nicole.聽鈥淚 think people have a pretty good touchstone for starting to approach how she would deal with both statutory and constitutional questions.鈥�
But in her hearing today, Judge Barrett refused to answer questions about whether she would rule the same way her mentor had, including on hot-button issues like abortion, same-sex marriage, and the Affordable Care Act.
鈥淚f I were confirmed, you would be getting Justice Barrett, not Justice Scalia,鈥� she told California Sen. Dianne Feinstein, the committee鈥檚 ranking member. 鈥淚 don鈥檛 think that anybody should assume that just because Justice Scalia decided a decision a certain way that I would, too.鈥�
Citing rules governing sitting judges such as herself, as well as Justice Ginsberg鈥檚 maxim for confirmation hearings 鈥� 鈥渘o hints, no forecasts, no previews鈥� 鈥� she declined to answer questions on how she would rule in particular cases.
Senator Feinstein expressed disappointment that Judge Barrett would not distance herself from Justice Scalia鈥檚 position on the 鈥渉ard-won freedoms and protections for the LGBTQ community,鈥� calling it a fundamental point for many Americans.
鈥淲hat I was hoping you would say is that this would be a point of difference where those freedoms would be respected,鈥澛爏aid Senator Feinstein.聽鈥淵ou have not said that.鈥�
Sen. Chris Coons of Delaware and others also questioned her over a聽聽in which she wrote that in a landmark case on the Affordable Care Act,聽NFIB v. Sebelius, Chief Justice John Roberts had pushed the ACA聽鈥渂eyond its plausible meaning to save the statute.鈥�
With another ACA case on the court鈥檚 docket next month, Senator Coons expressed concern Judge Barrett saw the statute as unconstitutional and, if confirmed according to the GOP timetable, she would vote to strike it down. She responded that she holds no hostility toward the ACA, and noted that the November case involves a聽different legal principle.
Both sides in the polarized debate have accused one another of seeking to use the Supreme Court to circumvent the slower process of legislative change, in which lawmakers are directly accountable to voters.
鈥淩epublicans are trying to see policy outcomes through the court that they鈥檙e not winning through the political process,鈥� says Jeremy Parris, former chief counsel for nominations in the Judiciary Committee and a longtime senior aide to Democratic Sen. Patrick Leahy of Vermont, a member of the committee.
Sen. Joni Ernst, a Republican from Iowa, argued that Democrats were projecting onto Judge Barrett what they want justices to be: activists for the moral imperatives they believe in.
On the eve of the last presidential election, when Justice Scalia鈥檚 seat was open and Senate Republicans were standing firm in their refusal to hold confirmation hearings for Judge Garland, then-Professor Barrett was asked what she thought of Hillary Clinton鈥檚 desire for a justice who would protect minority rights and Donald Trump鈥檚 declaration that he would appoint judges opposed to abortion.
鈥淭hose kinds of answers are, I think, what鈥檚 wrong with our nomination process,鈥� said Ms. Barrett, of candidates signaling to the electorate that they would appoint justices who share their policy preferences. 鈥淭hat鈥檚 not the right qualification for a justice. We shouldn鈥檛 be putting people on the court that share our policy preferences; we should be putting people on the court that want to apply the Constitution.鈥�
As for Professor Brady, her college English teacher, the outcome of the hearings will be 鈥減ainful鈥� either way.
鈥淚鈥檓 totally of a different [political] persuasion and I absolutely admire her,鈥� she says. 鈥淎nd those things are not resolvable for me really.鈥�
Staff writer Francine Kiefer contributed to this report.
