In a move that stirred controversy even before he made it, President Donald Trump on Saturday nominated Judge Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals to a seat on the highest court in the nation.
Trump selected the conservative Barrett to replace U.S. Supreme Court Justice Ruth Bader Ginsburg, the leader of the court’s liberal bloc.
Ginsburg, a Bill Clinton appointee who served on the high court for 27 years, died Sept. 18 from metastatic pancreatic cancer. She was 87.
Following Ginsburg’s death, Trump promptly announced he would seek to replace her before the Nov. 3 presidential election.
Trump described Barrett during his official announcement in the Rose Garden at the White House as “one of the nation’s most brilliant and gifted legal minds.”
“I love the United States and I love the United States Constitution,” Barrett said in her remarks. “I’m truly humbled by the prospect of serving on the Supreme Court. Should I be confirmed I will be mindful of who came before me.”
Barrett spoke about Ginsburg’s career, noting the late justice “not only broke glass ceilings, she smashed them.” She also spoke to Ginsburg’s friendship with the late Supreme Court Justice Antonin Scalia, who Barrett clerked for previously.
Critics argued the nomination should be made after voters select the next president, with Democratic presidential nominee Joe Biden contending Trump and Senate Republicans would be engaging in “an exercise in raw political power” if they moved faster.
Barrett is a controversial selection aside from the timing of her nomination less than two months before the presidential election.
Critics cite her lack of litigation experience and what they allege is her hostility to reproductive rights and willingness to ignore precedent if it suits her needs.
Supporters counter that Barrett is an originalist who will not make law from the bench. They also contend she is the target of bigotry based on her Roman Catholic faith.
Trump’s nomination of Barrett and a promise by Senate Majority Leader Mitch McConnell of Kentucky to put the nomination up for a vote is a reversal of the position the two men took in 2016.
After Scalia died in February of that year — nine months before the presidential election — McConnell announced the vacancy would not be filled until the next chief executive was in the White House.
In March 2016, President Barack Obama nominated Judge Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit to replace Scalia.
But Senate Republicans never gave Garland a hearing, and Trump filled the seat with Judge Neil M. Gorsuch of the 10th U.S. Circuit Court of Appeals after becoming president.
Things are different this time around.
The day after Ginsburg died, Trump tweeted that his administration has the obligation to choose her successor “without delay!”
Any confirmation hearing on Barrett’s nomination to the high court promises to be as contentious as the September 2017 hearing on her nomination to the 7th Circuit.
For example, the Alliance for Justice contended in a report that Barrett’s academic work “has been tailored to dismantle Roe v. Wade.”
The academic work critics cited included a law review article written by Barrett and a co-author.
While the article focused on capital punishment, it maintained at one point that abortion “is always immoral” and said at least twice that the prohibition against abortion is “absolute.”
During Barrett’s confirmation hearing before the Senate Judiciary Committee, Democrats and one Republican — Chairman Chuck Grassley of Iowa — asked how she would handle any conflicts between the law and her faith.
Barrett told the committee she would not allow her religious beliefs to inappropriately interfere with her application of the law.
Democrats came under fire for their treatment of Barrett, with Sen. Dianne Feinstein of California the target of much of the criticism.
During the hearing, Feinstein said a review of Barrett’s speeches led her to conclude that “the dogma lives loudly within you, and that’s of concern.”
Feinstein later denied she was attacking Barrett’s religious beliefs.
A statement issued by Feinstein’s office maintained Barrett’s writings prompted the senator to wonder “whether she could separate her personal views from the law, particularly regarding women’s reproductive rights.”
But President Brian Burch of CatholicVote.org contended the Democrats’ line of questioning “reeks of an unconstitutional religious test for qualification to participate in the judiciary.”
The U.S. Conference of Catholic Bishops maintained Democrats’ treatment of Barrett recalled a time when “anti-Catholic bigotry did distort our laws and civil order.”
While it did not come up during her confirmation hearing, Barrett’s affiliation with People of Praise caused some controversy.
People of Praise is a charismatic Christian “covenant community” that some critics have labeled a cult.
After participating in the community and receiving instruction for three to six years, a member may choose to make a covenant, or lifelong commitment to the community.
The commitment, according to the People of Praise website, is “a pledge of love and service to fellow community members and to God.” Members agree to contribute 5% of their gross income to the community and to serve one another’s spiritual, material and financial needs.
While most members of People of Praise are Catholics, other baptized Christians may join.
Barrett, 48, grew up in New Orleans.
She earned a bachelor’s degree in English literature in 1994 at Rhodes College in Memphis, Tenn., and a J.D. in 1997 at Notre Dame Law School.
Barrett served as a law clerk to Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit from 1997 to 1998.
She then served as a law clerk to Scalia from 1998 to 1999.
From 1999 to 2000, Barrett practiced law at Miller Cassidy Larroca & Lewin LLP in Washington, D.C.
She continued to practice law in Washington at Baker Botts LLP after Miller Cassidy merged into the Houston-based firm in January 2001.
Barrett had a litigation practice in trial and appellate courts. She handled one criminal appeal, with the rest of her caseload consisting of civil matters.
The questionnaire Barrett completed for the U.S. Senate Judiciary Committee when she was seeking a seat on the 7th Circuit asked her to list the 10 most significant litigated matters she personally handled.
Barrett responded she no longer had any records of the matters she handled and could remember only three significant cases.
Her clients in those cases were two defendants challenging their federal conspiracy convictions, a company pursuing an accounting malpractice claim and two entities seeking review of their designation by the U.S. government as foreign terrorist organizations.
Asked to describe other significant legal activities she had pursued, Barrett included her assistance to the legal team at Baker Botts that represented then-Texas Gov. George W. Bush in Bush v. Gore.
From 2001 to 2002, Barrett worked at George Washington University Law School, first as an adjunct faculty member and then as a law-and-economics fellow.
Barrett joined Notre Dame in 2002 and was named a professor in 2010. She taught and conducted research on the federal courts, constitutional law and statutory interpretation.
Barrett taught at the University of Virginia Law School in the fall of 2007 as a visiting associate professor and then returned to Notre Dame.
She was a member of the Federalist Society from 2005 to 2006 and from 2014 to 2017. She also was a member of Faculty for Life, an organization at Notre Dame that opposes abortion rights.
Her husband, Jesse M. Barrett, practices law at SouthBank Legal: LaDue Curran Kuehn in South Bend, Ind. He also teaches at Notre Dame.
In May 2017, Trump nominated Barrett to fill the vacancy on the 7th Circuit created when Judge John Daniel Tinder took senior status.
The Senate confirmed Barrett’s nomination on Oct. 31, 2017, and she took the bench two days later.
The Senate voted mostly along party lines, with three Democrats joining their Republican colleagues to bring the count to 55-43 in favor of Barrett.
The Democrats voting to confirm were Joe Donnelly of Indiana, Tim Kaine of Virginia and Joe Manchin of West Virginia.
Illinois’ Democratic senators, Richard J. Durbin and Tammy Duckworth, voted against confirmation.
In remarks on the Senate floor before the vote, Durbin acknowledged Barrett had strong academic credentials.
But her lack of experience and the views about judicial precedent she expressed in academic writings led him to oppose putting her on the bench, Durbin said.
He said the writings that caused him concern included a 2003 article calling for federal courts to restore “flexibility” to the doctrine of precedent.
He also was concerned about Barrett’s assertion that it is better for a justice “to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” Durbin told the Senate, quoting a 2013 law review article Barrett wrote.
And he said another writing that raised questions was “Catholic Judges in Capital Cases,” a 1998 article in the Marquette Law Review that Barrett wrote with John H. Garvey.
Barrett then was a law clerk to Silberman and Garvey was a law professor at Notre Dame. Garvey now is president of The Catholic University of America in Washington.
Barrett and Garvey wrote “orthodox” Roman Catholic judges should step aside from a case if they cannot follow the law and also observe the church’s prohibition on enforcing the death penalty.
Cases that should prompt recusal include those that might require a trial judge to impose the death penalty following a bench trial or to enter a death sentence in compliance with a jury’s recommendation, Barrett and Garvey wrote.
Appellate judges face a trickier situation, they wrote, and must determine the morality of passing judgment on a death sentence on a case-by-case basis.
Upholding a death sentence is a statement that “the trial court did its job,” Barrett and Garvey wrote, not an endorsement of capital punishment.
But because most people probably think such a ruling indicates approval of the death penalty, they continued, appellate judges should consider whether their participation in a capital case might “cause scandal, leading others into sin.” Barrett ruled in a capital case more than 20 years after the article was published.
She served on a 7th Circuit panel that handled challenges filed by Daniel Lewis Lee, a white supremacist sentenced to death for murdering three people.
The panel twice vacated stays of execution issued by lower courts and then declined to issue its own stay. Lee was executed in July.
Trump has been considering elevating Barrett to the Supreme Court since shortly after she joined the 7th Circuit.
Barrett was among the finalists to succeed Justice Anthony M. Kennedy, who retired from the high court in July 2018.
The seat went to Brett M. Kavanaugh of the U.S. Circuit Court for the District of Columbia Circuit following a bitter confirmation battle.
But Trump reportedly told advisors he did not nominate Barrett to Kennedy’s seat because he wanted the conservative Barrett to succeed the liberal Ginsburg.
In her tenure on the 7th Circuit, Barrett has participated in cases that include:
• In a dissent in June of this year, she argued for lifting a preliminary injunction blocking the Trump administration from enforcing its “public charge” rule in Illinois.
The rule allows federal officials to deny visas and green cards to immigrants they determine are likely to be dependent on public benefits.
The panel’s majority upheld a ruling that the federal government acted arbitrarily and capriciously in crafting the rule. Barrett argued the Trump administration’s version of the rule was reasonable.
• In January 2019, Barrett was in the majority in an 8-4 decision holding that only current employees are protected from employer policies that have a disparate impact on older workers.
• Barrett joined the majority in an 11-1 decision in August holding that the Fourth Amendment prohibition on unreasonable searches applies to visual inspections of the bodies of convicted prisoners.
• In February 2019, Barrett joined a ruling rejecting a First Amendment challenge to a Chicago ordinance that creates an eight-foot “bubble zone” around patients approaching abortion clinics and other medical facilities.
• Barrett wrote a June 2019 opinion reviving a lawsuit filed by a suspended Purdue University student who alleged school officials violated the due process clause and Title IX of the Education Amendments Act in their handling of a sexual assault accusation against him.
• Barrett joined a ruling in September 2018 that Wisconsin law did not require Milwaukee County to pay any part of a $6.7 million judgment entered in favor of a jail inmate who was repeatedly raped by a guard.
Law Bulletin Media’s Jordyn Reiland also contributed to this report.