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Barrett Nomination Moves Forward After Lengthy Senate Hearings

Judge Amy Coney Barrett prepares to testify during the second day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington Oct. 13, 2020. (Photo: CNS/Tom Williams, Pool via Ruerters)

WINDSOR TERRACE — Members of the U.S. Senate heaped three days of questioning on Judge Amy Coney last week during the hearings for her nomination to the Supreme Court.

However, observers said Barrett, a federal appeals court judge, aptly handled the questions while conveying a deep knowledge of judicial procedures, along with a fierce commitment to the rule of law.

Barrett thus left no doubt that she is qualified to serve the nation’s highest court, said Brian Browne, Assistant Vice President of Government Relations and adjunct professor at St. John’s University.

“In a very natural way,” Browne said, “Judge Barret seemed not just prepared for questions, but she came across as extremely intelligent, articulate, poised, and unflappable in the face of persistent and sometimes ridiculous questioning from both sides of the Committee.

“Perhaps her best moment was when she held up a blank notepad, demonstrating that she was capable of talking for hours on end about a broad range of legal issues without any notes, unlike her questioners.”

Last month, President Donald Trump nominated Barrett to replace the late Associate Justice Ruth Bader Ginsburg on the nation’s highest court. 

During the hearings, Trump was criticized by Democrats who said he was inappropriately replacing Ginsburg just days before an election.

“I would say it depends on your perspective,” said Marc DeGirolami, Cary Fields Professor of Law and the co-director of the Center for Law and Religion at St. John’s University. “In an election year, there has, in fact, been many nominations that have been pressed by presidents before the actual day of the election.

“That has happened in the order of 20-25 times in our nation’s history, including a very famous one involving Chief Justice John Marshall, who’s one of the most — if not the most — important justices to serve on the Supreme Court.”

On the other hand, DeGirolami said that Barrett’s nomination is unusual because “We’re very, very close to the election day itself.”

The Senate Judiciary Committee will meet to consider Barrett’s nomination Thursday, Oct. 22 and a vote by the whole Senate could come Friday, Oct. 23, officials have said.

During Barrett’s appearance at the Senate Judiciary Committee hearings, senators predictably asked her about abortion and other controversial issues.

And, as expected, Barrett adhered to the so-called “Ginsburg Rule,” which states judicial candidates ought not to declare one way or another how they’d rule on cases.

For example, Sen. Dianne Feinstein, D-Calif., asked Barrett if she agreed with the late Justice Antonin Scalia, who wanted to strike down, Roe vs. Wade, the case that made abortion legal across the U.S.

Barrett, formerly a clerk for Scalia, has called him a mentor. But she told Feinstein that she couldn’t discuss “Roe” for the same reasons Ginsburg articulated.

“If I were confirmed, you would be getting Justice Barrett, not Justice Scalia,” Barrett said. “So I don’t think that anybody should assume that just because Justice Scalia decided a decision a certain way, that I would too.”

She added, “Justice Ginsburg, with her characteristic pithiness, used this to describe how a nominee should comport herself at a hearing: ‘No hints, no previews, no forecasts.’ That had been the practice of nominees before her, but everybody calls it the Ginsburg Rule because she stated it so concisely, and it’s been the practice of every nominee since.

“So I can’t, and I’m sorry to not be able to embrace or disavow Justice Scalia’s position, but I really can’t do that on any point of law.”

It was the first exchange between Barrett and Feinstein since a similar hearing in 2017 for the judge’s seat on the 7th Circuit Court of Appeals. It was then that Feinstein told Barrett, “The dogma lives loudly within you, and that is a concern.”

During the hearings last week, Feinstein sought Barrett’s opinion on “Roe” by rephrasing the question, like did she believe, as did Scalia, that the landmark case “was wrongly decided?”

Each time Barrett said she couldn’t comment.

“Well, that makes it difficult for me,” Feinstein said. “So the question comes, what happens? Will this justice support a law that has substantial precedent now? Would you commit yourself on whether you would or would not?”

“I’ll follow the law,” Barrett responded. “I promise to do that for any issue that comes up — abortion, or anything else.”

In lighter moments, Feinstein and other senators complimented Barrett on her family. Her husband, Jesse, and some of their children attended parts of the hearings.

Browne said Barrett is unique in that her seven children, including one with special needs and two adopted from Haiti, comprise a larger-than-average family, even by modern Catholic examples.

Barrett’s family also served as an example of her personal empathy and her feelings about race relations in the U.S. She described watching the video of George Floyd dying in police custody. With her was her 17-year-old daughter, Vivian, adopted from Haiti. 

“It was very difficult for her,” Barrett said. “We wept together in my room. And for Vivian to understand that there would be a risk to her brother, or the son she might have one day, of that kind of brutality has been an ongoing conversation, and it’s a difficult one for us like it is for Americans all over the country.”

But Barrett assured that her personal feelings on issues and her Catholic faith would not influence how she would decide cases before the court.

“The example of her Catholic faith by both her words and demeanor was distinctive and frankly, refreshing,” Browne said. “She succinctly addressed her Catholic faith by stating that she did not bring it to her rulings as a federal appeals judge and would not do so if she is confirmed to the Supreme Court.”

If the Senate votes to approve Barrett, she will be the sixth Catholic currently serving on the Supreme Court. The others are Justices Samuel Alito, Brett Kavanaugh, Sonia Sotomayor, Clarence Thomas, and Chief Justice John Roberts.

“It is important to remember that not all Catholic justices think alike,” Browne said. “For example, Justice Sonia Sotomayor and Justice Clarence Thomas, both Catholic, are ideological opposites.”

Browne said Barrett’s nomination is “another step forward for women on the Supreme Court.”

“Her family and her apparent parenting skills may play a small role in changing society’s views on families and women who work outside of the home,” Browne said. “She would be the first Supreme Court Justice with school-age children, and by every indicator, she seems prepared for that.”

[Related: Barrett’s Nomination Highlights Women With Large Families; New Research Looks Into the Issue]

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