Legal Docket - Who is Amy Coney Barrett?

NICK EICHER, HOST: It’s Monday morning and time to get back at it for another week of The World and Everything in It. Today is the 28th of September 2020.

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Big, big news on the Supreme Court—and we’ll get to it—I’ve got some analysis for you.

But before we go there, I want you to know we have recorded our final Legal Docket podcast episode for season one.

And have to say, at the risk of seeming verklempt, I’m just grateful today. It took a lot of work by a lot of people. A dream come true to produce something like that. 

But we couldn’t have done it without you, without your faithful financial support for us here at WORLD and I just want to say thanks for that. I’m looking forward to season two, but it does feel good to wrap up season one. 

We did not have a lot of margin—pretty crazy production schedule—but the Lord saw us through.

EICHER: He did. Of course, we’re talking about the Legal Docket podcast—not your regular Legal Docket here on The World and Everything in It.

But I do want to brag on you and Jenny Rough a little bit. In the iTunes store, your Legal Docket podcast, it debuted at No. 2 in the Government category. It did hit No. 1, ever so briefly, but I did take a screenshot. It lingered all summer in the Top 10 and the competitors were National Public Radio, the BBC, Westwood One, some well-funded newcomers like I-heart-Radio. 

Here’s what I want to say about it: First, you mentioned it, Mary, listener support. That’s why we were able to do it in the first place. Second, it was a really good program and y’all can be pleased with a job well done. Third, listener ratings and reviews. Last time I checked, I saw about 800 and that’s a lot for a new program like that. Lots of reviews. All that stuff helps. And I’d make one final plea: Tomorrow, we release that last episode of the first season and the plan is to run between the end of the Supreme Court term and the beginning of the new term, but tomorrow’s program is a preview of cases to come, would you give us a big sendoff? If you appreciated the season, please rate it and then take a moment and give us a full-season review now that you’ll have heard the whole thing, and maybe let us know which episode of the 10 you loved most.

REICHARD: So our last episode, which releases tomorrow, is a preview of the next Supreme Court term. 

What we’ll do today is talk about the woman who is likely the next Supreme Court Justice. Judge Amy Coney Barrett.

Judge Barrett is President Trump’s third nomination to the Supreme Court in four years. His judicial picks may shape a more conservative court for decades to come. 

With the presidential election now just 36 days away, the partisan wrangling will be red hot.

EICHER: A short time in which to push through a nominee, for sure, but there’s precedent for it. Justice Sandra Day O’Connor was confirmed 37 days after President Ronald Reagan nominated her. And Justice Ruth Bader Ginsburg was confirmed 42 days after she was nominated by President Bill Clinton. 

And now Amy Coney Barrett—let’s listen to parts of a recent speech she gave at Hillsdale College. She talks about what kind of justice she’s likely to be, if she’s confirmed. We have audio:

BARRETT: A judge is obligated to apply the law as it is, and not as she wishes it would be. She is obliged to follow the law, even when her personal preferences cut the other way or when she will experience great public criticism for doing so.

REICHARD: Barrett spoke of her progression toward the judicial philosophy of originalism while still in law school.

BARRETT: I mean, we agree to live by the Constitution until it’s lawfully changed. And judges can’t change it. That’s not democratic, right? We change it by the prescribed process, which is Article V.  

Now, the Constitution doesn’t answer every question. And it gives a lot of flexibility. It gives that flexibility to democratic majorities to meet changing times by passing legislation. The Constitution isn’t the panacea that cures every societal problem. We have to trust our political branches to do that.

And one final clip about the black robe:

BARRETT: So the black robe doesn’t express individuality. And a judge should not be deciding cases in accordance with her individual preferences. The black robe symbolizes that all judges share a dedication to the rule of law, that we are engaged in a common enterprise of applying the law and doing our best job at it. Justice should not turn on what judge you get. It should turn on what the law requires.

Joining us to talk about this Supreme Court nominee is John Malcolm.  He’s the director of the Meese Center for Legal and Judicial Studies at The Heritage Foundation. 

John, tell us about Judge Amy Coney Barrett.

JOHN MALCOLM, GUEST: Well, she is a very distinguished scholar and judge by any measure. So she’s a graduate of Notre Dame a law school originally from, from New Orleans, by the way, graduate of Notre Dame law school, she then clerked for, it was Lauren Silverman on the DC circuit and Antonin Scalia on the Supreme court, two very distinguished conservative jurists. She worked for a brief time in private practice where among other things, she was part of the team representing president Bush in the Bush V Gore litigation. She spent many, many years in academia teaching primarily at her Alma mater, Notre Dame law school. She published very distinct, scholarly articles in many of the major law reviews around the country on a whole host of issues that conservatives care about and that judges deal with. Things like textualism, originalism when judges should adhere to precedent. And when they should depart from precedent specifically Supreme court justices.

When she was nominated to the 7th Circuit Court of Appeals in 2017, something remarkable happened: actually all 40 law clerks —who served four justices during the term in which Barrett was clerking for Justice Scalia —wrote a letter on her behalf. One of the signatories of that letter, Noah Feldman, who’s a noted liberal scholar at Harvard law school said that she was out of a group of 40 very distinguished lawyers, whip smart people, she was at the very, very top and be an outstanding judge.

She ended up catching a lot of flack during her confirmation hearings from some of the Democrats who said that, you know, they questioned her religious faith. Dick Durbin of Illinois asked whether she was a devout Catholic. Diane Feinstein of California said that she was very concerned about her religious faith, but the dogma lived loudly in her. They appear to ignore the fact that article six of the constitution says there shall be no religious test for public office. But totally setting that aside in the midst of this onslaught, Amy Coney Barrett was the picture perfect example of grace under fire. She very calmly answered those charges and said that, you know, it’s her job to be dictated by what the law and the constitution say, not take direction from the Pope or any other Catholic with respect to rulings. And then she was ultimately confirmed. And since then she has served with distinction on the 7th circuit. She’s, she’s over a hundred opinions and, and joined many more. They are erudite, reasoned, and it has shown that one, she is not going to be governed in her rulings by her faith. And also that she is, as she said, she would be a very committed textualist and originalist.

REICHARD: John, let’s talk about judicial philosophy. Some people were dismayed that Justice Neil Gorsuch did not follow the originalist way of interpreting statutes in the Bostock case. I’m referencing the Bostock opinion that he authored that expanded the word “sex” to mean something other than it meant in 1964. How do you think Amy Coney Barrett will do in that respect?

MALCOLM: Well, look, I believe that a good textualist is also a good contextual list and who reads that text within the context in which it was written. That doesn’t mean that they have to go beyond the words or resort to legislative history, but they sort of need to read the text in, in terms of approaching the problem that Congress was seeking to remedy. So while I believe that Neil Gorsuch is a committed textualist, I think that was a very bad textualist opinion for the reasons asserted by the dissenters, most prominently justice Samuel Alito. You look, you can never predict exactly how people are going to rule in these cases, but certainly Judge Barrett is a very good textualist.

REICHARD: What do we know about her views on abortion?

MALCOLM: Well, we don’t, other than her personal views on it. She was as a faculty member at at Notre Dame, you know, a member of some pro-life groups in an advisor, pro-life student groups, she’s written in law review articles that while all precedent is important she’s questioned some of the underpinnings of the original Roe versus Wade opinion. She hasn’t written any decisions dealing with abortion on the 7th Circuit, but she did join a couple of dissenting opinions that touched on abortion.

In both cases, they were dissents from a refusal by the entire seventh circuit to rehear a case after a panel opinion. One of them had to do with the parental notification law under Indiana. And the other had to do with what to do with fetal remains under Indiana law and also whether or not abortion can be based on sex selection, racial, you know, racial selection, disabilities things like that. In all of those instances, a panel of the 7th circuit had declared these laws to be unconstitutional. The full seventh circuit declined to hear the whole case. And she joined the opinion saying that the 7th circuit should have heard those cases.

REICHARD: Do you think Amy Coney Barrett is a good or bad pick as far as Trump’s prospect for re-election?

MALCOLM: Oh, that’s hard to say, you know, I don’t tend to get involved in the politics of all of this. A lot of this is going to depend on what the American people think of Amy Coney Barrett and how they think the Democrats have treated her. I mean, one thing that is good is that it gets the president talking about something that to the Republican base has been, you know, a triumph of his first term, which is, you know, his, his federal judicial appointments. So getting to talk about that, I think is a political winner for him. I think that the Democrats are going to have to be a little bit careful how they deal with the nominee at the risk of offending Catholics or offending women. It will be particularly interesting to see how Kamala Harris who was on the Senate judiciary committee questions the nominees, and she is the vice presidential nominee on the Democratic ticket. But there are a lot of things still to happen between now and the election on November 3rd. Although of course in some states, voting has already started.

REICHARD: John Malcolm is director of the Meese Center for Legal and Judicial Studies at The Heritage Foundation. Thank you for joining us today!

MALCOLM: My pleasure. Good talking to you!

REICHARD: And that’s this week’s Legal Docket.

(AP Photo/Alex Brandon) Judge Amy Coney Barrett listens as President Donald Trump announces Barrett as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, Sept. 26, 2020, in Washington. 

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