Revisiting What Barrett Said During Her 2017 Confirmation Hearing

Amy Coney Barrett during a Senate confirmation hearing to be U.S. circuit judge on Aug. 4, 2017. Screenshot via Senate TV

In 2017, Supreme Court nominee Amy Coney Barrett was sharply questioned about her faith and personal views by Senate Judiciary Committee lawmakers who were deciding whether to confirm her as a circuit judge on the U.S. Court of Appeals for the 7th Circuit.

One of the exchanges, namely Sen. Diane Feinstein’s (D-Calif.) statement “the dogma lives loudly within you,” became so notorious that it continues to live on t-shirts and mugs. Feinstein’s line of questioning and comment aimed at getting to the bottom of whether Barrett was able to separate her religious views from her legal opinions.

To the California senator’s question, Barrett calmly and prudentially responded, “I would faithfully apply all Supreme Court precedent.”

But that wasn’t the only instance in which Barrett was grilled about whether her faith would affect her impartiality as a judge. The hostile questioning by senators, in particular those on the Democratic side, engendered frustration among religious leaders and conservatives as to whether an unconstitutional religious test was being applied to judicial nominees.

To uncover clues about what kind of a judge Barrett would be, her academic record was placed under the microscope and repeatedly dissected during the hearing. Even a lecture she gave for Alliance Defending Freedom’s (ADF) Blackstone Legal Fellowship program drew intense scrutiny.

Here are some highlights of the 2017 hearing that could offer a glimpse into what the Senate committee’s confirmation hearing could look like:

Role of Faith in Deciding Cases

Barrett was repeatedly pressed by senators on both sides of the aisle about a law review article she co-authored with one of her professors in 1998 (pdf), as a third-year student. The paper explored the conflict of a Catholic judges’ faith and his or her judicial responsibility in death penalty cases.

In the paper, she and her co-author suggested that Catholic judges were “morally precluded from enforcing the death penalty” and that “judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.”

They suggested the best course of action to such a conflict would be “the recusal of judges whose convictions keep them from doing their job.”

During the hearing, Barrett was asked whether her stance had changed since then and to explain how her religious views would affect her jurisprudence as a judge by multiple senators, including then-committee Chairman Sen. Chuck Grassley (R-Iowa).

Sen. Grassley: I'd like to specifically discuss a law review article you wrote during law school entitled, “Catholic Judges in Capital Cases.” ... First question, you’ve had a couple decades of experience since you wrote this, to consider this issue further, will you elaborate on these points and discuss how you view the issue of faith versus fulfilling the responsibilities as a judge today? When is it proper for a judge to put their religious views above applying the law?

Ms. Barrett: Let me start with your very last question and say never. It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else on the law.

She then explained the context of how the paper was written, adding that some of her views on the issue had changed since writing the paper 20 years ago. She then went on to stress that a judge is never permitted to follow their personal convictions when deciding a case.

“I continue to stand and vehemently believe the core proposition of that article, which is that if there is ever a conflict between a judge’s personal conviction, and that judges duty under the rule of law, that it is never ever permissible for that judge to follow their personal convictions and the decision of a case rather than what the law requires,” she said.

Later in the hearing, when asked about whether she would recuse herself in death penalty cases, she indicated that she wouldn’t and that she had “routinely participated in capital cases” when she clerked for Justice Antonin Scalia.

Judge Amy Coney Barrett, President Donald Trump's nominee for the Supreme Court, looks on during a meeting with Senate Majority Whip John Thune (R-S.D.), on Capitol Hill in Washington on Sept. 29, 2020. Shawn Thew/Pool via Reuters

Precedents

Barrett fielded a number of questions about her stance on how Supreme Court rulings, usually called precedents, apply to lower courts. Most of the questions appeared to test whether Barrett would overrule decisions that she didn’t agree on, in particular ones relating to important social issues such as abortion.

Throughout the hearing and in her written answers to the committee, Barrett made it clear that as an appeals court judge, she would be obligated to follow Supreme Court precedent and precedent from her own circuit.

“I understand circuit judges to be absolutely bound by the precedent of the Supreme Court and the Supreme Court has held on a case called Rodriguez de Quijas that that obligation is absolute that circuit court judges are not permitted, for example, to anticipate overrulings of the court and jump the gun,” Barrett told Grassley.

She also added that “circuit courts are bound to follow the precedent of their own circuit” meaning that “judges follow precedent unless there are extraordinary circumstances that justify its overruling.”

Barrett also added that there are many other mechanisms of the law that “restrained judges” from “correcting precedents that they may not like or that they think are wrong.” She said these mechanisms such as the case or controversy requirement, the rule that judges only decide the question presented before them contribute to the stability of the law and prevent judges from overruling precedents based on their own personal convictions.

Her Views on Roe v. Wade

The senators throughout the hearing pressed Barrett’s views over the 1973 Roe v. Wade, the Supreme Court ruling that legalized abortion in all 50 states, seeking to understand how the professor would apply the precedent in any potential cases.

Barrett repeatedly reiterated that if she was confirmed as an appeals court judge, all Supreme Court decisions would be binding on her. But throughout the hearing, she did not address whether Roe would be reviewable by the Supreme Court, which she is now nominated to.

Multiple senators asked Barrett about a law journal article she wrote in 2013 (pdf) in which she differentiated simple precedents and “super precedents,” a term used to describe a case that no justice would overrule, even if he or she disagrees with the interpretive premise, according to the definition Barrett used. In the article, she lists a number of “super precedents” but didn’t include Roe.

Senators were quick to question her decision for doing that.

Sen. Feinstein: Why did you solely focus on the fact that Roe has been challenged by litigants on so many occasions, and not on the fact that the Supreme Court has repeatedly reaffirmed Roe in literally dozens of decisions?

Ms. Barrett: Thank you, Senator Feinstein. That wasn’t my list. I was addressing arguments that had been made by other professors, serious well-respected scholars like Richard Fallon at Harvard, and Michael Gerhart, at North Carolina. And it wasn’t my list. I was quoting them and I was quoting their definition of super-precedent. One thing I would observe is that for a court of appeals, all Supreme Court precedent is super-precedent. So as I said to Chairman Grassley, as a Court of Appeals judge, if I were confirmed, I would follow all Supreme Court precedents without fail.

During questioning by Sen. Mazie Hirono (D-Hawaii), Barrett was asked whether she would include Roe on the list if a different definition of “super-precedent” was used.

Ms. Barrett: If you use a different definition of super-precedent—for example, a precedent that’s more than 40 years old and that has survived multiple challenges—then I would include Roe on that list. It wasn’t the definition…

Sen. Hirono: You would include—did you say you would include Roe on that list of super-precedents?

Ms. Barrett: If super-precedent were defined differently. ‘Super-precedent’ is used differently in different contexts. And in the particular context in which I was writing, the particular definition that was used, it did not satisfy that definition. What I’m saying is that if you use a different definition of super precedent, which some people do, I think Roe could satisfy a different definition.

Given that Barrett has been nominated to the Supreme Court, where she has the ability to influence precedents in the country, it’s likely that the topic would be raised again in the October hearing.

Sen. Mazie Hirono (D-Hawaii) at a Senate Judiciary Constitution Subcommittee hearing, titled "Stifling Free Speech: Technological Censorship and the Public Discourse" on Capitol Hill in Washington on April 10, 2019. Jeenah Moon/Reuters

On the Issue of Recusal

Barrett was asked several times whether she would recuse herself from any cases, especially in relation to the death penalty.

During the hearing, she responded, “I can’t think of any cases or category of cases in which I would feel obliged to recuse on grounds of conscience,” while adding that she will act according to relevant law.

Sen. Patrick Leahy (D-Vt.) pressed Barrett again (pdf) in his written questions to her, asking her to list specific examples of when she would recuse herself.

She replied: “I will recuse from any cases in which applicable law requires me to do so, including cases in which I have a financial interest; cases in which my husband, Jesse Barrett, participated; and, for a period of time, from cases in which my current employer, the University of Notre Dame, is a party.

“If confirmed, I will be vigilant about my recusal obligation, and to determine its full scope, I will consult all relevant law, including 28 U.S.C. § 455 and the Code of Conduct for United States Judges. Where necessary, I will seek advice from those designated to give it, both in the Seventh Circuit and at the Administrative Office of the United States Courts.”

Controversial Lecture

Former Sen. Al Franken (D-Minn.) in 2017 pressed Barrett about her decision to speak to the Blackstone Legal Fellowship program, which is affiliated to Alliance Defending Freedom (ADF), a religious liberty non-profit organization.

The left-wing Southern Poverty Law Center, which maintains a list of what they claim are hate groups, had classified ADF as a hate group for its LGBTQ and marriage views. It had also classified many churches across the country as hate groups for the same reason.

“I actually wasn’t aware until I received the honorarium and saw the ADF on the check, or maybe when I saw an email and saw the signature line. But, yes, ADF is the organization that sponsors the Blackstone,” she said.

Franken then pressed her on whether she was aware of the Southern Poverty Law Center’s classification of ADF and the religious rights group’s policy positions.

“I’m invited to give a lot of talks as a law professor and ... I don’t know what all of ADF’s policy positions are and it has never been my practice to investigate all of the policy positions of a group that invites me to speak,” Barrett said.

In written responses to the Senate committee, Barrett clarified her response.

“At the time I gave a lecture at the Blackstone Legal Fellowship Program, I was generally aware that the program supported a traditional view of marriage,” she said. “I did not know what positions the Alliance Defending Freedom took in litigation or as a matter of public policy, and if the Alliance Defending Freedom was working to end same-sex marriage or recriminalize homosexuality abroad, I did not know it.

“I do not know even now whether the Southern Poverty Law Center’s characterization of the Alliance Defending Freedom’s position on these issues or any other is accurate. As I stated at the hearing, I understand its characterization to be a matter of public controversy.”

On Judges Who Align With Views, Judicial Approach

In a written question to Barrett, Sen. Sheldon Whitehouse (D-R.I.) asked her (pdf) to identify judges who she thought aligned with her view or judicial decision making.

Barrett named three Supreme Court justices, adding that there are many more judges and justices who she would seek to emulate. The three were Justice Antonin Scalia, who she clerked for, Chief Justice John Marshall, who was chief justice from 1801 to 1835, and Justice Elena Kagan, who is currently on the bench.

“Justice Antonin Scalia, for whom I clerked, is the justice I know best, and I admire the fluidity of his thought, the clarity of his writing, and his careful attention to statutory and constitutional text,” she said.

Supreme Court Justice Antonin Scalia at the American Bar Association (ABA) 59th annual "Antitrust Law Spring" meeting in Washington, on March 31, 2011. Jewel Samad/AFP/Getty Images

She also said she admired Marshall for his “commitment to consensus and collegiality, which manifested itself in both the resolution of cases and his personal relationships with colleagues.”

Her admiration for Kagan is due to the “way in which she is able to bring the knowledge and skill she acquired as an academic to the practical resolution of disputes.”