Bush v. Gore, Abortion Rights & More: 5 Things to Know About Amy Barrett
Amy Barrett. YouTube screen grab from ND Loyal
Amy Coney Barrett, one of President Donald Trump's would-be U.S. Supreme Court nominees, has a long career in the law that's touched flash points on abortion, religion and election law. Barrett's spent most of her career in academia, until her recent confirmation to the U.S. Court of Appeals for the Seventh Circuit. Having gone through the crucible of a Senate confirmation, she would offer some familiar territory for members of the Senate Judiciary Committee to examine once again. Barrett, 46, one of the youngest judges on Trump's Supreme Court shortlist, was confirmed 55-43 to the Seventh Circuit in October. The former Notre Dame law school professor and clerk to Antonin Scalia is one of four judges the Trump has confirmed to the Seventh Circuit. Trump reportedly will begin interviewing Supreme Court candidates next week, with the intent to announce a nominee by July 10. This time, if Barrett gets the nod, the stakes are much higher, and "strict scrutiny" inside and outside of the Senate will be intense. What follows are five confirmation and career moments that could reappear at any Supreme Court confirmation hearing. >>> The Supreme Court's landmark abortion-rights ruling—Roe v. Wade—will not likely be overturned, Barrett said in 2013 at a "professors for lunch series" at Notre Dame. She pointed to the Supreme Court's 1992 ruling in Planned Parenthood v. Casey—in which Kennedy, with justices Sandra Day O'Connor and David Souter, reaffirmed the core holding that respected a woman's right to choose to have an abortion. “I think it is very unlikely at this point that the court is going to overturn Roe [v. Wade], or Roe [v. Wade] as curbed by [Planned Parenthood v.] Casey. The fundamental element, that the woman has a right to choose abortion, will probably stand,” Barrett said. “The controversy right now is about funding. It’s a question of whether abortions will be publicly or privately funded.” Barrett said then—in a statement reflected by conservative leaders today—that a fundamental question focuses on how much power the states should have, rather than the federal government, to set reproductive rights policy. "It brings up an issue of judicial review: Does the court have the capacity to decide that women have the right to obtain an abortion or should it be a matter for state legislatures?" Barrett said. "Would it be better to have this battle in the state legislatures and Congress rather than the Supreme Court?" And in a remark that would foreshadow her own confirmation clash for the Supreme Court, Barrett said: “Republicans are heavily invested in getting judges who will overturn Roe [v. Wade], and Democrats are heavily invested in getting judges who will preserve the central holding of Roe [v. Wade]. As a result, there have been divisive confirmation battles of a sort not seen before.” "For court of appeals judges, all precedent is superprecedent when it comes from the Supreme Court," Barrett said at her confirmation hearing in September, in a conversation about cases that included Roe. She acknowledged a dispute over the definition of "superprecedent." In a 2015 law review article on stare decisis, Barrett wrote in a footnote: "Scholars, however, do not put Roe on the superprecedent list because the public controversy about Roe has never abated." Barrett wrote in the article: "Superprecedents are cases that no justice would overrule, even if she disagrees with the interpretive premises from which the precedent proceeds." Barrett said super-precedents include Marbury v. Madison, Brown v. Board of Education, Mapp v. Ohio, among others. "The force of so-called superprecedents, however, does not derive from any decision by the court about the degree of deference they warrant," she wrote. "Indeed, Planned Parenthood of Southeastern Pennsylvania v. Casey shows that the court is quite incapable of transforming precedent into superprecedent by ipse dixit. The force of these cases derives from the people, who have taken their validity off the court’s agenda." >>> Barrett worked on Bush v. Gore as an associate at Baker Botts. She was on location in Florida for a week, working with Stuart Levey, the former Baker Botts partner who is now chief legal officer at HSBC. Baker Botts's James Baker was counsel to George W. Bush's presidential campaign and the firm represented the GOP candidate in the Bush v. Gore litigation stemming from the 2000 recount in Florida. Barrett, according to her Senate questionnaire, provided research and briefing assistance "at the outset of litigation" in Florida courts. Barrett's career was academia-focused but she does have other law firm ties. She was an associate at Miller, Cassidy, Larroca & Lewin, in Washington, from 1999 to 2000. The firm later merged with Baker Botts. Barrett was a summer associate at Covington & Burling in 1997 in Washington. >>> Barrett collaborated with John Elwood on a seminar on the Supreme Court and the Constitution at George Washington University Law School in 2001. Their predecessors in the seminar were Brett Kavanaugh—the D.C. Circuit judge and fellow Supreme Court short-lister—and Gregory Garre, a former U.S. solicitor general who's now a partner at Latham & Watkins. Elwood, now an appellate partner at Vinson & Elkins, remembers Barrett from the days when they both worked at Miller Cassidy. “She is a straight shooter, really brilliant, and she is not motivated by her own interests," Elwood said Friday. "She is a real rule follower.” >>> Barrett could face questions about her faith and recusals. In the heightened scrutiny of a Supreme Court confirmation hearing, Barrett's devout Catholicism may be examined again, even though it may prove treacherous ground for any senator who does so. During Barrett's Seventh Circuit confirmation hearing, Sen. Dianne Feinstein, D-California, triggered an uproar from prominent conservatives and Catholics when she suggested Barrett might be disqualified from serving as a judge because of her Catholic faith. Feinstein partially quoted from a 1998 article Barrett wrote with Catholic University of America president John Garvey, entitled "Catholic Judges in Capital Cases." The quotation was: "Litigants and the general public are entitled to impartial justice, and that may be something that a judge who is heedful of ecclesiastical pronouncements cannot dispense." Feinstein said to Barrett: "When you read your speeches, the conclusion one draws is that dogma lives loudly within you. 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 said her religious beliefs would not affect her decisions as a judge. "It's never appropriate for a judge to impose that judge's personal convictions, whether they arise from faith or anywhere else, on the law," Barrett said. The quoted sentence was a small part of a lengthy examination of the dilemma Catholic judges may face in capital cases at the trial, sentencing and appeals levels. But it also suggested ways, such as recusal, that judges could deal with the dilemma and still faithfully apply the law. The article concluded: "Judges cannot—nor should they try—to align our legal system with the Church's moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church's standards. Perhaps their good example will have effect." >>> The conservative advocacy group Alliance Defending Freedom is not a hate group, Barrett said at her confirmation hearing. Sen. Al Franken, D-Minnesota, pressed Barrett about remarks she made at the ADF-sponsored Blackstone Program, a leadership training program. The Southern Poverty Law Center in 2016 identified ADF on a list of anti-LGBT hate groups. ADF has litigated against same-sex marriage, adoption by same-sex couples, transgender rights and abortion. "If ADF, if it truly were a hate group, it wouldn't be co-counsel right now—it has a brief in the Supreme Court with Wilmer Hale, which is one of the most reputable and esteemed law firms in the country," Barrett said. "They wouldn't be co-counsel with ADF if it were a hate group. I assure you they wouldn't be co-counsel with the KKK." She continued: "A very well-respected law firm would certainly not serve as co-counsel on a brief with a hate group. I wouldn't give a speech in front of a hate group. I wouldn't give a speech to the KKK." In July, a team from Wilmer was co-counsel with Alliance Defending Freedom in a petition concerning a Ten Commandments monuments out a city hall in New Mexico. The Supreme Court last year upheld a lower court order directing the city to remove the monument. Alliance Defending Freedom won two major Supreme Court cases in the term that just ended: Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a baker refused on religious grounds to bake a wedding cake for a same-sex couple, and NIFLA v. Becerra, in which the justices struck down California disclosure requirements for crisis pregnancy centers. Read more: What Brett Kavanaugh Says About Indicting a Sitting President LGBT Workplace Cases Arrive at SCOTUS as Kennedy Punches Out Kennedy's Retirement Leaves His Future Law Clerks in Limbo Trump's Win Will Change the Supreme Court, but Not 'Automatically'
Mike Scarcella contributed reporting from Washington.
