Barrett confirmation highlights fierce fight over judiciary

November 2, 2017

The controversy surrounding Amy Coney Barrett’s nomination to the 7th Circuit Court of Appeals did not end with the Senate’s confirmation vote Tuesday.

Barrett, a professor at University of Notre Dame Law School, was confirmed by the Senate on a largely party-line 55-to-43 vote. Indiana Democratic Senator Joe Donnelly was joined by two other Democrats, Tim Kaine of Virginia and Joe Manchin of West Virginia, in voting for the law professor.

In a report about the vote posted on the Notre Dame Law School’s website, dean Nell Jessup Newton expressed her support for Barrett. “Amy Barrett has been a beloved teacher and outstanding scholar,” Newton said. “I am confident she will be a wise, fair, and brilliant jurist as well.”

The firestorm broke out over Amy Coney Barrett’s nomination after her confirmation hearing before the Senate Judiciary Committee. Conservative and religious groups charged that Democratic members of the committee were imposing a religious test by their questions regarding her Catholic faith.

Democrats countered they were trying to understand her judicial philosophy as she put forth in her academic writings. They argued that her scholarship was the only way they had to determine how she would behave on the bench because she has no judicial experience and spent only a few years as a practicing attorney.

Following the vote, Susan B. Anthony List president Marjorie Dannenfelser called Barrett’s confirmation a victory not only for the pro-life movement but also for the freedom of Americans to live out their faith in the public square.

Dannenfelser indicated the battle surrounding the religious test issue will return.

“In spite of her exemplary qualifications, Judge Barrett was subject to outrageous personal attacks for her Catholic faith from pro-abortion senators during her confirmation hearing,” she said. “Those attacks have no place in America, let alone Congress, in the 21st century. Moreover, voters will not forget the attempted obstruction when they go to the polls next year.”

Conversely, the Alliance for Justice charged Barrett’s confirmation is part of a Republican plan to pack the courts. AFJ president Nan Aron said the Senate ignored Barrett’s “flawed credentials” and reiterated doubts about her commitment to following legal precedent.

“Like the other judicial nominees that (Senate Majority Leader) Mitch McConnell plans to rush through this week, Barrett is an ideologue programmed to toe the conservative line at every step, and her confirmation is part of the Republican strategy to pack the courts with archconservatives who will be making decisions long after (President) Donald Trump leaves office,” Aron said.  

The Judicial Crisis Network, a conservative 501(c)(4) organization focused on the judiciary, advocated for Barrett’s confirmation and stirred anger over her hearing. In fact, the organization took the step of producing a six-figure digital ad campaign that it ran for 10 days, asserting Democrats attacked Barrett because she is Catholic.
Speaking to the Indiana Lawyer, Carrie Severino, chief counsel and policy director for JCN, emphasized the questions posed to Barrett were inappropriate. Nominees to the federal bench should be evaluated on their qualifications, she said, not on their religious beliefs.

She described the Democrats’ inquiries as insinuating that “anyone who has strong religious beliefs should not be allowed on the bench. I think that’s totally inappropriate and unconstitutional.”

The JCN has supported the Trump nominees to the federal courts and opposed Democrats who do not endorse the picks. Severino explained the organization backs judges who apply the law as it is written, and who respect the Constitution’s balance of power and do not legislate from the bench. When judges apply the law, it would be nobody’s business what their personal beliefs are, she said.

When Michigan’s two senators, Democrats Debbie Stabenow and Gary Peters, did not turn in their blue slips in support of 6th Circuit Court of Appeals nominee Joan Larsen, JCN launched a commercial, accusing the pair of playing partisan politics.  

The senators relented and Larsen, a justice on the Michigan Supreme Court, was questioned about the ad and the JCN during her confirmation hearing.

In particular, Sen. Sheldon Whitehouse, D-Rhode Island, described the JCN as a “dark-money special-interest group,” and he asked Larsen what the group was expecting to get from their investment in her candidacy.

“…I’m not suggesting that you approved the commercial,” Whitehouse told Larsen. “I’m suggesting that there are big political interests that are powerful enough to spend hundreds of thousands to try to influence public opinion in your favor and my question is, what do they want for their return on investment? People don’t usually throw that kind of money around for nothing.”

Larsen responded that she had no idea. Then, she defended herself, saying her record from her two years on the Michigan Supreme Court shows that her decisions were evenly split in disputes pitting corporations and insurance companies against individuals.

 Severino dismissed Whitehouse’s comments about dark money, saying he has repeatedly made those arguments and was not surprised he brought them up again. However, she declined to disclose the donors to JCN. Severino said her organization did not want to potentially open donors to attacks while they are exercising their right to free speech.

Spending on judicial campaigns and nominees is nothing new, but there has been an increase in spending from outside special interest groups across the political spectrum, according to Alicia Bannon, senior counsel in the Democracy Program at the Brennan Center for Justice.

Much of Bannon’s research has focused on state courts, but she noted the flood of money is creating fear that the public will question the legitimacy of the judiciary. She sees the money as being used to either influence a judge’s rulings or to shape the overall ideology of the bench to align with a particular philosophy.

Bannon said there must be a clear line between the judiciary and politics, but that line is becoming blurry. The creates the danger that the public could lose respect for the courts and see the decisions as “just another political fight and not a good faith effort to apply the law equally to everyone,” she said.


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