Bench Memos

Law & the Courts

Attack on Judge Amy Coney Barrett Completely Misfires

Politics makes strange bedfellows. But I still find it downright bizarre that a conservative Catholic would join forces with Senator Dianne Feinstein (“the dogma lives loudly within you”) and other anti-Catholic bigots in contending that Seventh Circuit judge Amy Coney Barrett holds a “weirdly theocratic version of a Catholic judge’s constitutional obligations.” But that’s exactly what John Zmirak does in this woefully misguided Human Events piece in which he argues that President Trump should not nominate, and the Senate should not confirm, Barrett to a Supreme Court vacancy.

Zmirak declares himself “troubled by Barrett’s public statements on the nexus of her jurisprudence and her faith.” But the only “public statements” that he identifies are in a law-review article that Barrett co-authored more than twenty years ago when she was a law student. In that article, Barrett argued that trial judges who are faithful to Catholic teaching “are morally precluded from enforcing the death penalty” and should therefore recuse themselves from cases in which they might be required to do so. Zmirak extravagantly extrapolates from the 1998 article that Barrett as a Supreme Court justice might recuse herself from cases involving capital punishment, immigration, and abortion.

Alas, Zmirak completely ignores the “public statements” that Barrett made at her confirmation hearing in 2017.

For starters, Barrett provided the “context” for that article:

I wrote that law review article when I was a third-year law student with one of my professors 20 years ago. It was a project that he had underway, and he invited me to work on it with him, and I was complimented that as a student he thought I was up to the task of being more than a research assistant. But I was very much the junior partner in our collaboration, and that was appropriate given our relative statures.

Notably, Barrett expressly rejected the notion that “that article and its every particular reflects how I think about these questions today with … the benefit of twenty years of experience and also the ability to speak solely in my own voice”:

Would I or could I say, sitting here today, that that article and its every particular reflects how I think about these questions today with, as you say, the benefit of 20 years of experience and also the ability to speak solely in my own voice? No, it would not.

Even more importantly, Barrett stated that “sitting here today, I cannot think of any cases or category of cases in which I would feel obliged to recuse on grounds of conscience.” How could Barrett have stated more clearly that she did not perceive herself to have an obligation to recuse from appellate review of death-penalty cases? (Barrett also stated that “when I was a law clerk to Justice Scalia, I routinely participated in capital cases, and there were many of them.”)

Zmirak claims that “Barrett fails to draw the bright line separating her legal judgment and practice from her faith.” But she drew that “bright line” repeatedly at her hearing and in her responses to written questions:

It is never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.

[I]f there is ever a conflict between a judge’s personal conviction and that judge’s duty under the rule of law, it is never, ever permissible for that judge to follow their personal convictions in the decision of a case rather than what the law requires

I totally reject and I have rejected throughout my entire career the proposition that, as you say, the end justifies the means or that a judge should decide cases based on a desire to reach a certain outcome.

[W]ere I confirmed, as a judge I would decide cases according to the rule of law, beginning to end.

[A] judge may never subvert the law or twist it in any way to match the judge’s convictions from whatever source they derive

I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.

Consistent with the views articulated in my writings and public statements, including my testimony at my hearing, I do not think it lawful for a judge to impose personal opinions, from whatever source they derive, upon the law. If confirmed, I will apply the law faithfully and impartially in accordance with the judicial oath.

Zmirak is apparently unaware of all of these statements.

In her two years on the Seventh Circuit, Barrett has taken part in nearly 500 decisions, published and unpublished. There is nothing in her judicial record (and Zmirak points to nothing) that suggests that she has recused herself from any category of cases. Indeed, contrary to Zmirak’s ill-founded speculation, she has already written several opinions rejecting immigrants’ claims for relief as well as one opinion granting limited relief. She has also taken part in a case involving abortion—specifically, speech by pro-life sidewalk counselors outside abortion clinics—and, contrary to Feinstein’s claim that she would indulge her Catholic faith in deciding such a case, she properly applied (widely discredited) Supreme Court precedent in ruling against the counselors.

Bottom line: There is plenty of reason to believe that Judge Barrett would be an outstanding Supreme Court justice, and Zmirak completely misfires in arguing otherwise.

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