Law & the Courts

Barrett Lamented ‘Very Brutal’ Confirmation Process in 2019 Speech, Blamed ‘Dangerous’ Drift toward Judicial ‘Policymaking’

(Screenshot via Youtube)

Amy Coney Barrett, President Trump’s pick to replace Justice Ginsburg on the Supreme Court, warned in a private discussion at Notre Dame last year that the judicial nomination process “has gotten very brutal” due to “a fundamental misunderstanding of the judicial role.”

Footage of the event, which went public Tuesday, shows Barrett and Amul Thapar, a federal appeals judge for the Sixth Circuit who is also on President Trump’s shortlist for the Supreme Court, discussing their backgrounds and judicial philosophy in a far-ranging conversation.

Barrett, already the topic of heavy scrutiny for her family’s involvement in a charismatic Christian group, spoke candidly on the topic of judicial confirmations — referencing comments made by Ginsburg after Justice Kavanaugh’s 2018 hearing, of which the late justice said “the way it was, was right. The way it is, is wrong.”

“Part of that is because people have a fundamental misunderstanding of the judicial role,” Barrett explained. “If you think that the judge who is going to be confirmed to a court of appeals or to the Supreme Court is going to be imposing his or her policy preferences on you, then it leads to kind of this all in — ‘we have to take this person down if we think we’re going to disagree with the policy preferences.’”

During Barrett’s 2017 confirmation hearing for the 7th U.S. Circuit Court of Appeals, a line of questioning from Senator Dianne Feinstein (D., Calif.) was widely publicized and condemned in conservative circles for its suggestion of anti-religious animus.

“Why is it that so many of us on this side have this very uncomfortable feeling that, you know, dogma and law are two different things? And I think whatever a religion is, it has its own dogma,” Feinstein said at the time. “The law is totally different, and I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern.”

Speaking Saturday after Trump officially announced her nomination, Barrett stated that she had “no illusions that the road ahead of me will be easy, for the short term or the long haul,” and said that she would strive to earn the Senate’s support. She also offered a glimpse of her judicial philosophy, echoing the late Justice Antonin Scalia, whom she clerked for. “His judicial philosophy is mine too: A judge must apply the law as written,” she stated.

In her April 2019 discussion at Notre Dame, Barrett spoke at length about her originalist background, and gave insights into how she strives to be impartial in rulings.

“I try to put myself in the shoes of the party that I’m going to rule against. And so as I’m writing the opinion, or as I’m trying to decide how I’m going to vote at conference, I imagine that it was my daughter, or me, or my husband that was in that situation, and think, ‘could I still reach the same result?’” she revealed. “. . . Could I respect the reasoning? And am I really doing it in a way that smokes out any kind of policy impulse that I have to go the other way?”

While Barrett warned that “judges are humans and they’re fallible,” she stated that “everybody has to come up with mechanisms . . . to try to guard against you imposing your policy views on the law.”

“Justice Scalia used to say, and it’s right — and in my almost two years on the bench, I’ve already had this happen — if you don’t write decisions that you disagree with — the results, Not the reasoning — if you don’t reach results that you don’t like, you’re not a very good judge, you’re doing something wrong,” she continued. “Because you shouldn’t like the result in every case you decide.”

Barrett said that the trend towards politicizing judicial appointments stemmed from a number of different sources.

“I think it’s really a feature of judges cultivating in some instances, this perception of the judicial role, of the public’s perception of this as the judicial role,” she said. “It’s not the judicial role, and it’s very dangerous. It’s dangerous because for our courts to function and fulfill their role in society and to function well people have to respect them. And if everyone thinks that courts are just policymaking arms, then they’re not going to be respected, right? It’s become a very toxic situation.”

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