Bench Memos

Law & the Courts

NYT Hit Piece on CA7 Nominee Amy Barrett’s Religious Practices—Part 2

Just a few more observations on religion reporter Laurie Goodstein’s New York Times article on Seventh Circuit nominee Amy Coney Barrett, titled “Some Worry About Judicial Nominee’s Ties to a Religious Group.” Numbering serially from my Part 1 post:

3. Who are the “Some” who “Worry”? Well, they evidently consist of two law professors Goodstein quotes.

One is Sarah Barringer Gordon, who opines of People of Praise that “These groups can become so absorbing that it’s difficult for a person to retain individual judgment.” Hmmm. Does Gordon actually have any basis for this judgment? Had Gordon ever heard of People of Praise before Goodstein called her? Does she have any independent knowledge of it? Or is she just doing Goodstein a favor by offering up a desired quote?

Gordon’s bio indicates that she has written extensively on Mormon polygamy in the 19th century. When she refers to “These groups,” is she lumping a 21st-century Christian charismatic community together with 19th-century Mormon polygamists?

The other law professor is Cathleen Kaveny, who is ubiquitous in pieces raising concerns about Barrett. Although you wouldn’t know it from any of her quotes or even from her own confused article, Kaveny is a former colleague of Barrett’s. Exercising heroic self-restraint, I’ll confine myself to observing that it’s rather ironic that she complains that Barrett hasn’t been “sufficiently transparent.” As I pointed out in my Part 1 post, the simple answer to Kaveny’s supposed gotcha question of “why didn’t she disclose this?” is that the Senate questionnaire didn’t inquire about membership in religious organizations.

4. Barrett has received stellar reviews from all of her Notre Dame colleagues, other law professors, every single one of her fellow Supreme Court clerks, and her former students. Appeals to religious bigotry aside, there is, in short, no basis for any concern that she lacks the independence of judgment needed to be an outstanding judge.

By the way, Barrett would not be the first judge who has been a member of People of Praise. Christopher Dietzen served with distinction as an associate justice of the Minnesota supreme court from 2008 to 2016 and, before that, as a judge of the Minnesota court of appeals for four years.

Goodstein and her supposed experts never seem to contemplate the possibility that a person who is accustomed to receive and to reflect on (as well as to give) advice in the realm of family life might have developed the faculty of critical self-reflection that well suits the judicial role.

5. Another indication of Goodstein’s bias: She falsely states that Barrett at her hearing “backed away” from the position in her 1998 law-review article that (in Goodstein’s words) “sometimes Catholic judges should recuse themselves from the sentencing phase of death penalty cases.” Even worse, she links to a characteristically error-strewn Alliance for Justice attack post (“It’s a Fact: Barrett Misled the Senate Judiciary Committee”) as support for her false claim.

As I’ve explained before (in point 4 of this post), and as law professor Rick Garnett points out in response to Goodstein, Barrett’s article focused heavily on the recusal obligations of trial judges in capital cases and emphasized that the recusal question for appellate judges—the role she would fill—was much more complicated under Catholic moral teaching on improper cooperation.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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