Potential Trump Supreme Court pick Barrett: Catholic Chicago judge stirs abortion debate
On President Donald Trump’s short list of potential Supreme Court nominees, the candidate sparking the fiercest debate is a self-possessed Chicago U.S. Court of Appeals judge who’s been on the bench less than a year.
That lack of judicial experience means former University of Notre Dame law professor Amy Coney Barrett has a slim record of rulings for a potential Supreme Court nominee. That void of information about her judicial identity is being filled with the anxieties and hopes of commentators across the political spectrum.
Barrett’s opponents have interpreted her scholarly articles and Catholic faith as suggesting she is a religious extremist who could be willing to overturn precedent and end legal abortion. Critics have focused in part on her affiliation with People of Praise, a charismatic faith group that has been portrayed as oppressive and misogynistic — a charge the group rejects.
Supporters and former colleagues, however, describe an exacting legal thinker committed to separating her faith from her interpretation of the Constitution and law.
On Thursday, national news organizations reported that Trump was focused on Barrett and fellow federal appeals Judges Brett Kavanaugh and Raymond Kethledge to fill retiring Justice Anthony Kennedy’s spot. Trump told reporters he was down to four candidates. A formal announcement is planned for Monday, but word of the president’s pick could emerge sooner.
Trump promised during the campaign to upend Roe v. Wade, the landmark 1973 Supreme Court decision legalizing abortion. Many conservatives have pointed out it would be smart politics to install a woman on the court, rather than have five male justices overturn the key precedent.
For her part, Barrett’s public statements have not clearly indicated that she thinks Roe can or should be overturned.
“I think it is very unlikely at this point that the court is going to overturn Roe, or Roe as curbed by (Planned Parenthood v.) Casey,” she was quoted as saying at a 2013 Notre Dame luncheon on the ruling’s 40th anniversary. “The fundamental element, that the woman has a right to choose abortion, will probably stand,” she added. “The controversy right now is about funding. It’s a question of whether abortions will be publicly or privately funded.”
Barrett enjoys the widespread and often passionate support of colleagues stretching back to her days as a clerk for the late Supreme Court justice, Antonin Scalia, 20 years ago.
Fellow clerks nicknamed Barrett “The Conenator” — a play on her maiden name and reputation for destroying flimsy legal arguments.
“She was very, very smart. Not at all ideological,” said Jay Wexler, a Boston University law professor and self-described liberal atheist who clerked for Justice Ruth Bader Ginsburg alongside Barrett. “I take her at her word that she will try as hard as anyone can to bracket the views she has as she decides cases.”
Those who favor abortion rights are not comforted by assurances that Barrett can keep a firewall between her faith and her legal decisions. Daniel Goldberg, legal director of the progressive Alliance for Justice, noted Trump’s pledge to appoint “pro-life justices” who would overturn Roe and leave the issue for individual states to decide.
“I hope the American people realize the stakes,” Goldberg said. “The burden is on her to convince millions of women that their rights will be protected if she’s confirmed by the Senate.”
Barrett did not respond to a request for comment Thursday.
At 46, Barrett is the youngest of the three leading contenders for the nomination. If selected and confirmed, she would become one of several high court justices with little or no prior experience as a judge, including William Rehnquist, Lewis Powell, Byron White and current Justice Elena Kagan.
Barrett became a minor star among conservatives last fall after her Catholic faith took center stage during her confirmation hearing to the 7th Circuit Court of Appeals. Democrats on the Senate panel, including Sen. Dianne Feinstein of California, grilled Barrett about whether her religious beliefs would influence her legal thinking and lead her to overturn rulings such as Roe.
“The dogma lives loudly within you,” Feinstein told Barrett, “and that’s of concern when you come to big issues that large numbers of people have fought for, for years in this country.”
Barrett’s supporters were incensed, and the comment became the subject of T-shirts and coffee mugs bearing her face. Conservatives accused the senator and other Democrats of using anti-Catholic rhetoric. The presidents of Notre Dame and Princeton University wrote letters in support of Barrett noting that the Constitution bans religious tests for public office.
Along with Feinstein, Sen. Dick Durbin of Illinois was called out, and the Catholic lawmaker responded to the criticism in a Chicago Tribune letter to the editor.
“My questions were confined to issues she raised personally in her writings and speeches which could directly impact the discharge of her duties,” Durbin wrote. “It was the nominee who raised the issue.”
During her confirmation hearing, Barrett repeatedly said her faith would not intrude on her legal reasoning.
“I see no conflict between having a sincerely held faith and duties as a judge,” she testified. “I would never impose my own personal convictions upon the law.”
Barrett declined to discuss her personal views on abortion, same-sex marriage and other hot-button topics, but she was questioned on her scholarly writings. Those include a 2013 law review article in which she wrote that the stare decisis doctrine — which holds that past rulings govern future decisions — is “not a hard-and-fast rule in the court’s constitutional cases ...”
“I tend to agree 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 wrote.
The Senate panel also zeroed in on a 1998 paper in which Barrett, then a Notre Dame law student, explored when Catholic judges in death penalty cases might have to recuse themselves if they felt their moral beliefs kept them from doing their duty.
Barrett emphasized she was not the lead author — that was one of her professors, John Garvey, now president of the Catholic University of America. Barrett also said that with 20 years of legal experience, she likely would have written the article differently, though she stood by its core principle — that a judge cannot twist the law to match a personal belief.
The full Senate confirmed Barrett in October, with three Democrats voting in support.
During the confirmation battle, 49 Notre Dame Law School colleagues signed a letter praising Barrett as fair-minded and intellectually rigorous. The letter described her as a “role model” and noted the wide ideological range of the colleagues who favored her ascent to the bench.
One of them, professor Paolo Carozza, told the Tribune this week that Barrett was “an inspiration” to students, particularly women. Carozza, who worked with Barrett for 15 years, described her as intelligent with a measured temperament.
Carozza said he would expect a person’s background and beliefs to inform his or her legal thinking. But Barrett does not present herself as an ideologue, he said, and her thinking on legal issues is complicated.
“I can’t think of a single instance in a faculty debate or conversation or classroom context or lecture where I’ve gotten the sense that Amy is reacting to something on a fundamentally ideological level,” said Carozza, whose scholarly work has centered on human rights. “I just think that’s not her.”
Still, groups that favor abortion rights have cast her potential nomination as a danger to the Roe precedent. On Monday, NARAL Pro-Choice America described Barrett as a zealot who is “perfectly clear” in her desire to overturn the decision.
The same day, Senate Minority Leader Chuck Schumer of New York tweeted criticism of some of her writings.
“If chosen as the nominee, she will be the deciding vote to overturn Roe v. Wade and to strike down pre-existing conditions protections in the (Affordable Care Act),” Schumer tweeted.
Carol Sanger, an abortion rights supporter and professor at Columbia Law School in New York, said the court’s respect for precedent could preserve Roe, even if there’s a solid conservative majority. She noted that access to legal abortions depends on more than Roe, which bars states from criminalizing the procedure.
States have passed myriad laws that regulate abortions, ranging from waiting periods and mandatory ultrasounds to the temporarily halted Texas law that requires that aborted fetuses be cremated or buried. Sanger noted that changes to the makeup of the court could affect what’s allowed and what’s not.
Whatever happens to Roe, she said, abortions will keep happening. The question is whether they will be legal, Sanger said.
Opponents also have brought up Barrett’s ties to People of Praise, a group that calls on its mostly Catholic congregants to join Protestants in worship and works of service outside the church. According to online archives, Barrett and husband Jesse M. Barrett, a federal prosecutor in northern Indiana, have long been involved with the group of about 1,700 that formed in South Bend in 1971.
Criticism of the group as oppressive and misogynistic was promulgated by disaffected former member Adrian J. Reimers, a former Notre Dame adjunct assistant professor of philosophy. In a 1997 manuscript, Reimers argued that submission to leaders is expected of members, and he likened such groups to “cults.”
Former Obama White House Special Counsel Norman Eisen called the group a “secretive religious cult … (featuring, yes, ‘handmaidens’).”
Group members called that characterization grossly unfair.
“We’re nothing like that. We are big on personal freedom. Obey your conscience. The only person you can control is yourself,” said Craig Lent, a Notre Dame electrical engineering and physics professor and the group’s overall coordinator.
The group assigns mentors to new members, and in the 1970s adopted the term “handmaids” for female mentors, drawing from Biblical language. Last year, the group scrapped that term and began using “woman leader,” Lent said. Lent noted that the charismatic renewal movement was recognized by Pope Francis in a 2015 address.
The commitment members make to each other “is a covenant, which means ‘I’m with you’ — not an oath, not a vow. We eschew those terms,” said Lent, who added there is no negative consequence for those who leave the group to pursue other paths.
With about 20 branches stretching from Canada to the Caribbean, the group includes political liberals, Lent said.
“We don’t have public policy positions,” said Lent, who declined to discuss Barrett. “Individual members take whatever view they want.”
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