Had Notre Dame law professor Amy Coney Barrett’s confirmation hearing to serve as a circuit judge on the U.S. Court of Appeals for the seventh circuit been scheduled in the late 1590s, William Shakespeare may have based an entire gossip and rumor-filled chapter on judicial political posturing in his comedy, “Much Ado About Nothing.” But unlike Shakespeare’s original writing, political forces in this case could not be joined to satisfy the situation, thus not culminating in any celebratory marriage dance. Barrett’s nomination is a chess piece in a long-term scheme by Senate Majority Leader Mitch McConnell (R-Ky.) to delegitimize former President Barack Obama by stonewalling his judicial nominations and pack the judiciary now that a so-called “friendly” executive occupies the White House.
Barrett’s nomination is like — using Notre Dame imagery — hiring high school football coach Jerry Faust for the University’s head coaching position after bypassing eminently qualified college coaches while keeping the position open for years. Barrett has no judicial opinions or experience on the bench other than clerking for President Ronald Reagan appointee District of Columbia Appeals Judge Laurence H. Silberman and iconic conservative Supreme Court Justice Antonin Scalia. The vacancy Barrett would fill remained open through a legislative procedural veto known as a “blue slip” (no hearings are held on a nominee until both senators from the state of the nominee returns their blue slips). Senator Dan Coats (R-Ind.) held up Obama’s 2015 nominee to the court, Myra Selby.
In Selby, senators would have interviewed a former Indiana Supreme Court Justice who spent most of her career as a highly regarded expert in health-care law. Selby was recognized on the Best Lawyers in America’s health-care law list for seven consecutive years. Sen. Joe Donnelly (D-Ind.) praised Selby’s nomination, saying that she “has been a trailblazer, as the first woman and first African-American to serve on the Indiana Supreme Court and the first African-American partner in a major Indianapolis law firm.” Selby would have also been the first African-American to sit on the seventh circuit from Indiana.
At Barrett’s hearing, though, senators could only examine her scholarly, theoretical treatises to establish their opinions of her judicial philosophies — some of which obviously pandered to the doctrine of her religious employer. Her article, “Catholic Judges in Capital Cases,” strongly criticized Justice William Brennan’s statement about faith wherein he took an oath to uphold the law, and that “there isn’t any obligation of our faith superior” to that oath. Barrett replied, “We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”
The hearing turned to Barrett’s mention of judge recusals when she hinted that she might impose such upon herself during several types of cases. Even a friendly ally on the panel questioned her. Sen. Ted Cruz (R-Tex.) asked Barrett, “I’ve read some of what you’ve written on Catholic judges and in capital cases and, in particular, as I understand it, you argued that Catholic judges are morally precluded from enforcing the death penalty … please explain your views on that because that obviously is of relevance to the job for which you have been nominated.”
Herein lies the crux, which Professor Barrett should note. You will not preside in an academic theoretical world as a “Catholic” judge. You will be in an arena outside of Catholic Disneyland as an American judge whose spirituality should guide your legal moral compass to apply current law collectively alongside the legal moral compasses of “Muslim” judges, “Jewish” judges, “Protestant” judges and “Atheist” judges. As is referenced in the courtroom, Barrett “opened the door” of testimony by writing “Catholic judge.” The chorus of senators who grilled Barrett on her judicial philosophy and potential rulings did not question her faith. Unlike the protestation on LinkedIn’s Notre Dame Alumni Network page or the eloquent defense of Professor Barrett’s faith by University president John Jenkins, no one questioned her faith, but whether she would apply the law by deferring to her faith.
Barrett must answer the overriding question with clarity: Would you hold the Catechism with equal weight through your proceedings like the principles of Sharia law might guide an orthodox “Muslim” judge who uses his religious principles that form a portion of the Islamic religion? Barrett’s writings seem to strictly follow the Vatican’s direction. It is important that the judiciary does not act based on religion, against our forefathers’ plan that this nation is strongest whenever we embrace a multitude of philosophies absent religion.
Unfortunately, Senate Republican Leader McConnell’s theft of the latest Supreme Court seat and his refusal to allow Obama to appoint his share of judges portends of future unrest. Rigging the Supreme Court to skew 5-4 for particular philosophy will haunt our society someday. Judges are wise to strive for the type of reputation as our first woman Supreme Court Justice Sandra Day O’Connor who ruled on the merits of each case, not on a philosophy or dogma that easily could count her vote before the court deliberated.
If appointed to the bench, Barrett would be wise to rule on complex matters without adhering to simple religious doctrine. For Barrett, only time will judge if we shall again quote Shakespeare saying, “The lady doth protest too much, methinks.”
