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Senators grill Notre Dame law professor nominated for 7th Circuit

September 6, 2017

Testifying for nearly three hours before the Senate Judiciary Committee, Amy Coney Barrett learned that just as nothing truly disappears from the internet, law journal articles can be found, studied and used to question the thinking of a judicial nominee.

Barrett, a professor at Notre Dame Law School, has been nominated to fill the Indiana vacancy on the 7th Circuit Court of Appeals. In her testimony Wednesday on Capitol Hill, Barrett repeatedly denied that she advocates for judges to rule according to their religious beliefs rather than based on the law.

Senators on both sides of the political aisle questioned her about the article, “Catholic Judges in Capital Cases,” which she co-wrote in 1998 with then-Notre Dame Law School professor John Garvey. Committee chair Sen. Charles Grassley opened the hearing with an inquiry about the article.

To Grassley and throughout the hearing, Barrett reiterated several times that the article was written 20 years ago while she was a student studying at Notre Dame Law School. She said Garvey asked her to help and she described herself as “very much a junior participant in the collaboration.”

Barrett said circuit courts are “absolutely bound” by the precedent from the Supreme Court of the United States and by the circuit’s own precedent.  She asserted she would follow the precedent set by the Supreme Court of the United States and would “absolutely follow” the Supreme Court’s precedent on abortion.

She said the article looked at the narrow instance of a trial judge who is a conscientious objector and who is asked to impose an order to execute a defendant. The article concluded the best course of action would be for the judge to recuse himself rather than twist the law to match his personal view.

Barrett said she could not think of any case or category of cases that she would feel necessary to recuse herself from based on her personal views. She noted when she clerked for the late Supreme Court Justice Antonin Scalia, she often participated in denying appeals from death row inmates.

Sens. John Kennedy, R-Louisiana, and Dick Durbin, D-Illinois, brushed aside Barrett’s assertions she would adhere to precedent.

Kennedy tried to get Barrett to comment on past court opinions. He stipulated that she would follow the law but he wanted to know what she thought about the law, if there were any rulings with which she did not agree.

Barrett deflected the line of questioning. She then gave a reason that she would also use repeatedly during the hearing that as a nominee for an appellate court, it was not proper for her to comment on specific opinions.

A frustrated Kennedy cut her off, saying she won’t talk to him about the law.

Durbin bluntly stated he did not believe that a judge follows precedent without being influenced by his or her personal views, life experiences and education. Cases that come before the court, he said, are close calls, leading judges to ask what a word means or what did Congress intend to do. He did not buy the “robot approach” of applying precedent without other factors coming into play.

The Illinois Senator then brought up an article she wrote about Congress’s decision to reduce sentencing disparities between criminal cases involving crack and those involving powder cocaine. As part of that reform law, the sentencing reductions were made retroactive.

Durbin characterized Barrett’s article as being critical of the law.

Barrett said the writing he was referring to was a blog post that grew out of a conversation she had with her husband, Jesse Barrett, assistant U.S. attorney for the Northern District of Indiana. In the post, she said she wondered what the process would be for handling the retroactive claims and solicited opinions about the issue.

Both ranking member Sen. Dianne Feinstein, D-California and Sen. Richard Blumenthal, D-Connecticut, brought up Barrett’s writings on abortion. Blumenthal pulled up a speech Barrett gave in 2013 which took a look at Roe v. Wade. She declared then that overturning the landmark decision legalizing abortion would have little impact.

Barrett said the statement was made in response to students who were protesting. Blumenthal asked if she agreed with his point of view that reversing Roe would have a major disruptive effect but when she tried to answer by pointing to Supreme Court precedent, the senator said he was wanting to know her personal belief.

Again, Barrett said she did not think as a nominee she should express her personal opinion. Blumenthal pressed, saying he was just asking the same question she was asked in 2013.

When she said as a circuit judge she would be bound by Supreme Court precedent, he returned to the line of questioning about whether personal beliefs ever enter into judicial decisions. She didn’t directly answer the question. Instead, Barrett responded by pointing out faculty colleagues, former students and law clerks across the political spectrum have written in support of her nomination.

Sen. Al Franken, D-Minnesota, grilled Barrett about accepting more than $4,000 to give two presentations for the Blackstone Legal Fellowship, a program affiliated with the Alliance Defending Freedom. The ADF is an organization that has been designated by the Southern Poverty Law Center as being a hate group.

Barrett said she does not check out the policy positions of the organizations who invite her to speak.

Franken said not vetting groups that offered invitations was irresponsible and “demonstrated extreme bad judgment.”

“You will speak to anyone who pays you,” he asked. “You don’t check into who they are?”

Barrett said she would never speak to the KKK or other hate groups. With Blackstone program, she said several of her academic colleagues and Notre Dame students had participated in the fellowship and she had no reason to think it was a hate group.

Franken then raised questions about her truthfulness when initially she said she did not research groups that asked her to speak and now she was backtracking on those comments.

Republican Sens. Mike Lee of Utah, Jeff Flake of Arizona and Ben Sasse of Nebraska all praised Barrett and her qualifications. Sen. Ted Cruz, R-Texas, followed suit but returned to the 1998 law journal article.

Barrett replied she helped write the article when she was a law student and it focused on a narrow topic of a conscientious objector.

Cruz also asked her what makes a good appellate judge. Barrett said circuit court judges should be impartial and committed to law, applying it equally to the rich and poor and being willing to take the consequences of making a ruling that might be unpopular.

Barrett appeared before the judiciary committee alongside Michigan Supreme Court Justice Joan Louise Larsen who has been nominated to the 6th Circuit Court of Appeals. The Notre Dame professor was originally scheduled to have her own hearing Aug. 9 but when the Senate decided to recess for the summer, the hearing got pushed back to September and Grassley made the decision question the two circuit court nominees at the same time.

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