Bench Memos

Law & the Courts

Hilarious Attacks on Larsen and Barrett Nominations

Michigan supreme court justice Joan Larsen and Notre Dame law professor Amy Coney Barrett have outstanding credentials and have received broad acclaim—including favorable blue slips from their home-state Democratic senators—for their nominations to the Sixth Circuit and Seventh Circuit, respectively. So it’s perhaps no surprise that some of the Left’s attacks on Larsen and Barrett are downright hilarious. (To be clear: I wouldn’t put Senator Dianne Feinstein’s display of ugly anti-Catholic bigotry against Barrett or Senator Dick Durbin’s improper inquiry into Barrett’s religious beliefs in the category of hilarious.)  

For example, People For the American Way complains of Larsen:

Also of concern is the signal Larsen sent about her conservative ideology during her campaign for the Michigan Supreme Court last year. Her website stated that “judges should interpret the laws according to what they say, not according to what the judges wish they would say. Judges are supposed to interpret the laws; they are not supposed to make them.” This is coded language used by ultra-conservative jurists and activists to signal a willingness to issue rulings that (among other things) do not recognize the constitutional right to abortion or the fundamental humanity and equality of LGBTQ people. [Emphasis added.]

Yeah, sure. And Justice Sotomayor was using that same “coded language” when she testified at her confirmation hearing that “The task of a judge is not to make the law—it is to apply the law.” And so did Justice Kagan when she proclaimed that “we are all textualists now.” Ditto for statements by countless other Democratic judicial appointees over the years.

The Alliance for Justice claims that Barrett “believes and has stated that judges can and should put their personal beliefs ahead of the law and Constitution when carrying out their duties.” It cites its own report as authority for that claim. But when you finally get past AFJ’s repetition of that claim to its actual report, you learn that AFJ is complaining that “in a 1998 law review article, Barrett argued that federal judges who are faithful to Catholic teaching should recuse themselves from capital cases because they are morally precluded from considering or imposing the death penalty.” (Emphasis added.) (The law-review article is here; AFJ doesn’t bother to include a link.)

In short, far from arguing that “judges can and should put their personal beliefs ahead of the law and Constitution when carrying out their duties,” Barrett was arguing that Catholic judges “are morally precluded from enforcing the death penalty”* and should therefore recuse themselves from cases in which they might be required to do so. Indeed, she emphatically declared that Catholic judges “cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.”

As Barrett’s co-author John H. Garvey—former Notre Dame law professor and current president of Catholic University—writes in an op-ed today, “I never thought I’d see the day when a coalition of left-wing groups attacked a Republican judicial nominee for opposing the death penalty.” Even more amazing is that AFJ adopts the loopy position that a judge who complies with recusal obligations is placing himself “at odds with the very essence of the [judicial] oath.”

What buffoonery.

* Justice Scalia, for whom Barrett later clerked, disagreed with her reading of Catholic teaching on the death penalty.

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