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by Causes | 10.25.20

What’s the story?

The Senate is considering the nomination of Judge Amy Coney Barrett to the Supreme Court and on Sunday approved a key procedural vote that limits further debate to 30 hours, setting up a confirmation vote Monday evening around 7:30pm Eastern.

Who is Amy Coney Barrett?

Barrett, 48, is a federal judge on the Seventh Circuit Court of Appeals and in addition to serving on the bench, she has worked as a law professor at Notre Dame Law School since 2002, teaching civil procedure, constitutional law, and statutory interpretation.
Barrett earned her undergraduate degree with honors from Rhodes College. She then studied law at Notre Dame Law School on a scholarship, where she was an executive editor of the law review and graduated first in her class in 1997.
After law school, Barrett worked as a law clerk for Judge Laurence Silberman of the D.C. Circuit Court of Appeals from 1997 to 1998. She then clerked for Justice Antonin Scalia of the U.S. Supreme Court from 1998 to 1999. After her clerkships, she worked at a law firm in Washington, D.C. until 2002.
Barrett is a practicing Catholic who grew up in Metairie, Louisiana, and is the oldest of seven siblings. She and her husband, Jesse, live in South Bend, Indiana, with their seven children, two of whom were adopted from Haiti and one of whom has special needs.

What is Barrett’s judicial history and philosophy?

Barrett was nominated to the Seventh Circuit by President Trump in May 2017, and the Judiciary Committee held her confirmation hearing on September 6, 2017.
One of the most notable moments occurred when Ranking Member Dianne Feinstein (D-CA) pressed Barrett on whether her Catholic beliefs would interfere with her ability to serve as a judge, telling the nominee that “the dogma lives loudly within you, and that is a concern.” Feinstein’s line of questioning drew criticism as threatening to impose an unconstitutional “religious test” for office.
Barrett sought to downplay the senator’s concerns by saying, “My personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge… It is never appropriate for a judge to impose that judge’s personal convictions, whether they arise from faith or anywhere else, on the law.”
After her nomination was advanced by the committee on a party-line vote, Barrett was confirmed on a 55-43 vote on October 31, 2017, becoming the first woman to occupy an Indiana seat on the circuit. All Republican senators voted for her confirmation, as did three Democrats, including Sens. Tim Kaine (D-VA) and Joe Manchin (D-WV), and then-Sen. Joe Donnelly (D-IN) who lost reelection the following year.
In terms of her legal philosophy, Barrett is an avowed originalist in the mold of the late Justice Scalia. As Barrett has explained:

“Originalism rests on two basic claims. First, the meaning of constitutional text is fixed at the time of its ratification. Second, the original meaning of the text controls because “it and it alone is law.” Nonoriginalists consider the text’s historical meaning to be a relevant factor in interpreting the Constitution, but other factors, like value-based judgments, might overcome it. Originalists, by contrast, treat the original meaning as a relatively hard constraint.”

During her years on the Seventh Circuit, Barrett has authored several notable opinions that you can read about here.

How has Barrett’s Supreme Court nomination played out?

After the death of Justice Ruth Bader Ginsburg on September 18, 2020, President Donald Trump nominated Judge Amy Coney Barrett to fill the vacancy on September 26th. Barrett had been a finalist for the vacancy created by Justice Anthony Kennedy’s retirement, which was ultimately filled by Justice Brett Kavanaugh, and has long been a fixture on Trump’s Supreme Court shortlist.
The Senate Judiciary Committee held four days of confirmation hearings regarding her nomination from Monday, October 12th to Thursday, October 15th. The first day was focused on opening statements, while the second and third days featured question and answer periods between committee members and Barrett, before the hearings concluded after the committee heard testimony from outside experts on the fourth day.
The American Bar Association’s (ABA) federal judicial nomination review panel received input from 944 people in its investigation regarding Barrett’s integrity, professional competence, and judicial temperament. The ABA’s investigation yielded substantial praise for the nomination and no negative commentary.
The ABA concluded, “Judge Barrett meets the highest standards of integrity, professional competence, and judicial temperament. It is the opinion of the ABA Standing Committee on the Federal Judiciary that Judge Barrett is “Well Qualified” to serve as an Associate Justice of the Supreme Court of the United States.”
The Senate Judiciary Committee held over Barrett’s nomination on the 15th, which postponed a vote for one week at the minority’s request as rules allow. Amid a boycott by Democratic senators, committee Republicans advanced Barrett’s nomination with a recommendation that she be confirmed on a 12-0 vote during a hearing on October 22nd.
Republicans have the votes to confirm Barrett, as only two senators within their 53 seat majority have expressed reservations about the nomination, specifically that it’s being considered too close to the election, and at least one of whom will vote against procedural moves but for Barrett’s confirmation.
Sen. Lisa Murkowski (R-AK) said she disagrees with holding a confirmation vote this close to the election, and therefore will vote against procedural votes on the nomination. But Murkowski will vote in favor of Barrett’s confirmation because “she is qualified by any objective standard and has received the highest possible rating from the American Bar Association.” Sen. Susan Collins (R-ME) has expressed similar reservations about the timing of the vote, and is expected to vote against the procedural motions and potentially Barrett’s confirmation as well.
No Democrats have indicated that they will support Barrett’s Supreme court nomination despite three having voted in favor of her circuit court nomination. In general, Democrats oppose Barrett because of her judicial philosophy and they believe the nomination is being considered too close to the election.
The Senate began floor debate on Barrett’s nomination the next day with a series of procedural votes. Debate will continue through Sunday, when the final procedural vote to limit further debate to 30 hours occurred. It succeeded 51-48, with Collins and Murkowski the only Republicans opposed, and Sen. Kamala Harris (D-CA) absent.
Barrett's confirmation vote is expected to occur around 7:30pm Eastern on Monday evening.

What would Barrett’s confirmation mean for the Supreme Court?

If confirmed, Barrett would be the sixth justice currently on the bench to have been appointed by a Republican, and the third to have been appointed by President Donald Trump. As an originalist in the mold of the late Justice Scalia, Barrett would likely shift the philosophical balance of the Court in a more conservative direction.
Barrett would be the first female justice with school-age children to serve on the Supreme Court, and the fifth woman to serve as a U.S. Supreme Court justice. She would fill the seat of the late Justice Ruth Bader Ginsburg, who was the second female justice appointed to the Supreme Court. The third and fourth female justices, Justice Elena Kagan and Justice Sonia Sotomayor, still serve on the Supreme Court.
Barrett would be the second female justice appointed by a Republican president, following in the footsteps of Justice Sandra Day O’Connor, who was appointed by Ronald Reagan.
She would be the 15th Catholic to serve as a Supreme Court justice if confirmed. Five of the justices currently on the bench are Catholic, including Justice Clarence Thomas, Chief Justice John Roberts, Justice Samuel Alito, Justice Sonia Sotomayor, and Justice Brett Kavanaugh.
Barrett would also be the first justice to have graduated from a law school that isn’t in the Ivy League or Stanford since Justice John Paul Stevens, who was on the Supreme Court from 1975-2010.

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— Eric Revell

(Photo Credit: Barrett: VWEAA via Wikimedia / Creative Commons | SCOTUS: iStock.com / Timothy Epple)

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