Notre Dame Law School professor Amy Coney Barrett graciously suffered many indignities during a Senate hearing last week concerning her nomination to the U.S. Court of Appeals for the Seventh Circuit, including a gamut of questions about her religious convictions. But the case marshaled against her does not necessarily derive from explicitly anti-catholic bigotry, as its critics on the right have been quick to claim. Rather, it is rooted in a concerted campaign of partisan posturing which reveals the pernicious influence of outside groups on the judicial-confirmation process.
Barrett was made to defend herself against many lines of inquiry during the hearing, including charges that she would elevate personal religious conviction over established case law where the two conflict, that she believes Roe v. Wade does not enjoy so-called super-precedent status, and that in her view women do not have significant reliance interests in continued access to abortion. (In this context, “reliance interest” refers to the fact that women organize their social relations around the availability of abortion, and to the proposition that courts should respect said fact.)
These allegations and the others Barrett faced last week arise in their every particular from an eleven-page report generated by an interest group called the Alliance for Justice, a coalition of left-wing groups that successfully leveraged agitprop and campaign-style messaging to set the tenor and agenda for Barrett’s hearing. They are, in other words, a testament to the undue but essential service outside groups provide the Senate Judiciary Committee.
Among other tasks, committee personnel are responsible for vetting judicial nominees in advance of their confirmation hearings. The panel, however, lacks the time, logistical resources, and institutional capacity to do such work effectively. As of this writing, President Trump has named 49 nominees to the federal bench, only six of whom have been confirmed.
The committee has nearly 100 employees, only 50 of whom are at its disposal for vetting judicial nominees. This relatively small group cannot complete an exhaustive review of each candidate. According to the questionnaire she filed with the committee, Professor Barrett has produced 13 law review articles and delivered over 60 lectures and presentations in various fora over the course of her professional life. The sum of this public scholarship runs thousands of pages. She has further prepared or contributed to a dozen reports and memorandum for the Advisory Committee on Appellate Rules, made sporadic media appearances, and blogged infrequently. Work product from her time as an attorney in private practice, where her clients included George W. Bush’s presidential campaign and the National Council of Resistance of Iran, may also be of interest to the committee.
Barrett’s paper trail thus presents a massive challenge to the committee. The situation is all the more forbidding when one considers all the non-judicial nominees staffers must vet. In the last eight months, the committee processed nominees for attorney general, FBI director, a constellation of Justice Department posts, and the Supreme Court. Justice Neil Gorsuch’s confirmation in particular put all other committee work on hold for weeks.
Such circumstances give interest groups like the Alliance for Justice a prime opportunity to exert maximum influence on the confirmation process, especially in cases where the committee’s minority-party staff have a strong incentive to outsource vetting to third parties anyway. Though the Alliance’s power is not unlimited, the organization and its subsidiary members do not face the same constraints that hinder committee staff. These realities conspire to create a symbiotic relationship between panel and interest group, in which the group furnishes intelligence and counsel for the committee, and the committee, by its reliance on the group, confers the access and cachet essential to the group’s success.
This dynamic is particularly troubling to the extent that the Alliance, and its analogues on the right, are fiercely partisan and ideological.
This dynamic is particularly troubling to the extent that the Alliance, and its analogues on the right, are fiercely partisan and ideological. A judicial confirmation is an obvious and potent means by which to advance a political agenda, and the research that partisan outside groups generate reflects as much.
No wonder, then, that the Alliance provided a grossly inaccurate account of Barrett’s views to Democratic senators, and the senators took that account into her confirmation hearing.
The Alliance’s report makes Barrett out to be something of a pro-corporate Savonarola, better suited to the cleric’s stole than a judicial robe. But the archetype they presented was effective. The committee’s ranking Democrat, Senator Dianne Feinstein of California, drew directly and substantially from the report in her questions to Barrett during last week’s hearing.
Her first question concerned the “super-precedential” status of Roe v. Wade. “Super-precedent” is a neologism which emerged in recent judicial-confirmation battles to describe a decision about which certain senators care intensely. Feinstein asked Barrett about a list of super-precedents which appeared in a 2013 journal article under her name, and quoted directly from the article to buttress the suspicion that Barrett does not believe Roe is part of the canon of super-precedents.
As Barrett explained in response, the list of cases Feinstein referenced was not her own list, but rather a list compiled by other scholars to which she was merely offering her own professional annotations. The claim that Barrett composed the list, and the quote Feinstein offered as evidence of her views, appear in the Alliance report.
The same construction followed in Feinstein’s very next question, which concerns a woman’s reliance interest in ensuring access to abortion. As with her first question, the senator repeated a charge which appeared in the Alliance report, and then reinforced the claim with the exact same quote which appeared in the dossier.
Feinstein’s order of questioning exactly tracks the report itself — the allegations concerning super-precedent and reliance interests appear on the same page in sequential order. The general thrust of Democratic skepticism is also lifted from the report. Lawmakers repeatedly asserted that Barrett advocates the supremacy of religious belief over and against case law when tension arises between the two. Committee Democrats, using language and citations from the report, asserted that she gave religion primacy over law in a 1998 law-review note called “Catholic Judges in Capital Cases.” The article, however, does little to further the senators’ claim. In it, Barrett specifically rejects the position they accused her of holding, writing that “Judges cannot-nor should they try to-align our legal system with the Church’s moral teaching whenever the two diverge.”
The Alliance report has been supplemented by a sustained social-media campaign under the hashtag #StopBarrett, disseminated in digital spaces by a coalition of activists and pro-choice groups since July. The consequences played out in the hearing room: Observers not present as guests of the nominee or representatives of the administration were by and large activists from groups like NARAL and People United for the American Way.
It was an appropriate metaphor for the entire proceeding. The activists inundated the hearing room in much the same way as they domineered research and messaging around the nomination. All that remained was to enjoy the fruits of their labor firsthand.
— Kevin Daley is a Supreme Court reporter for the Daily Caller News Foundation.