It’s a Fact: Barrett Misled the Senate Judiciary Committee

On Wednesday the Senate Judiciary Committee held Amy Coney Barrett’s confirmation hearing for a seat on the Court of Appeals for the Seventh Circuit. Prior to the hearing, Alliance for Justice and others had raised serious concerns about Barrett’s past academic writing, which suggested that she would put her personal views ahead of the law and would feel free to decline to apply Supreme Court precedent.

Democratic senators demanded that Barrett answer tough questions about her most controversial writings. But instead of fully and truthfully answering senators’ questions, Barrett repeatedly gave misleading testimony. In some instances, Barrett’s answers flatly misrepresented statements she had given in the past.

A sampling of Barrett’s most egregious misstatements follows.

At her hearing, Barrett said: “I have not said that judges should not be bound by stare decisis.”

• In fact, Barrett wrote that she “tend[ed] to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”
• In fact, Barrett wrote that judges on the courts of appeals have no obligation to adhere to stare decisis with respect to statutory cases: “Whatever the merits of statutory stare decisis in the Supreme Court, the inferior courts have no sound basis for following the Supreme Court’s practice.”
• In fact, Barrett wrote that “refusing to revisit interpretations as a means of restraining judicial policymaking may or may not be appropriate in the Supreme Court, which settles the meaning of statutes on behalf of the entire judicial department. But it certainly does not make sense in the courts of appeals, which, by virtue of their position in the judicial hierarchy, have different considerations to take into account when deciding whether to overrule precedent.”
• In fact, Barrett wrote that the application of stare decisis conflicts with the Due Process Clause, saying that “rigid application” of stare decisis “unconstitutionally deprives a litigant of the right to a hearing on the merits of her claim.”

Senator Feinstein asked: “If you believe a precedent of the Supreme Court conflicts with the Constitution’s original meaning, would you follow it as a judge and do you believe it would be unlawful for you to do so? Barrett answered, “I do not think it would be unlawful and I would follow it as a judge.”

• In fact, in a recent article in the Notre Dame Law Review, Barrett wrote that originalists, like herself, face “the possibility that following precedent might sometimes be unlawful” when it conflicts with the original meaning of the Constitution’s text.

Senator Hirono asked, “Today, you testified that it is never proper for judges to put their personal views . . . above the law, is that correct?” Barrett answered, “Yes.”

• In fact, in a 1998 law review article advocating that Catholic judges recuse themselves from certain phases of capital cases, Barrett and her coauthor criticized comments by former Supreme Justice William Brennan. When asked how he would reconcile his Catholicism with the law, Brennan had said, “what shall control me is the oath that I took to support the Constitution and laws of the United States and . . . that alone . . . governs.” Barrett and her coauthor wrote: “We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”Barrett’s view that judges should not be guided by the Constitution “alone” is remarkable. The act of a judge recusing herself from a case because of a personal disagreement with the law that is at issue in the case is the definition of putting one’s personal beliefs ahead of the law. Judges do not get to pick and choose which laws they apply.

Barrett said that her article “addressed [the] very narrow question” of “how a conscientious objector to the death penalty who was a trial judge would proceed if the law required that judge to enter the order of execution.” She added that the article “did not address even the obligations, we didn’t draw any conclusions about how an appellate judge who was a conscientious objector should behave.”

• In fact, the article addressed more than just capital cases, frequently discussing abortion.
  • The article explicitly disagreed with Justice Brennan that a judge should be guided only by the Constitution when handling cases involving abortion: “We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”
  • The article noted that recusal in cases involving abortion “is a bit easier” than in capital cases, because “[b]oth the state and the unborn child’s mother are (at least typically) acting with gross unfairness to the unborn child, whereas the moral objection to capital punishment is not that it is unfair to the offender.”
  • Barrett wrote that the Catholic Church’s “prohibitions against abortion and euthanasia (properly defined) are absolute; those against war and capital punishment are not.”
• In fact, the article went into great detail about the obligations not only of trial judges but of appellate judges as well.
  • The article noted that whether an appellate judge “may affirm lower court” decisions enforcing the death penalty “is a question we have the most difficulty resolving,” but concluded that “[t]he moral impossibility of enforcing capital punishment in . . . []sentencing, enforcing jury recommendations, affirming[] is a sufficient reason for recusal under federal law.”
  • The article notes that “[w]hatever might be the legal significance of an affirmance, it probably looks to most people like an endorsement of the sentence. This can cause scandal, leading others into sin.”

Senator Hirono asked Barrett why a list of superprecedents in her 2013 law review article did not include Roe. Barrett said she simply was “using a list by other very well-respected scholars.”

• In fact, in her article, after reproducing the list of superprecedents, Barrett wrote that “[i]n my view . . . Planned Parenthood of Southeastern Pennsylvania v. Casey shows that the Court is quite incapable of transforming precedent into superprecedent by ipse dixit.”

Senator Blumenthal asked Barrett whether she would agree that overturning Roe “would have a massive disruptive effect on the lives of countless Americans.” Barrett responded that she could not express her personal view, but would “agree with” and “embrace [the Supreme Court’s description] in Casey that if Roe were overturned, the Court made very clear that it would be a disruptive effect to women’s lives.”

• In fact, Barrett, who has suggested that Roe was wrongly decided because “the Constitution does not expressly protect the right to privacy” and that it was the product of “judicial fiat,” wrote in a 2013 article that “[r]eliance interests . . . count far less when precedent clearly exceeds a court’s interpretive authority . . .”

Barrett worked hard at her hearing to downplay numerous statements and writings that are real causes for concern, but such denials are unconvincing when the statements in question are on record and so clearly speak for themselves.