Book excerpt from “Justice on the Brink” – Harvard Gazette
For McConnell, it was not time for mourning, it was business, and he was ready. The president was in the air, returning from a campaign rally in Minnesota. The White House operator forwarded McConnell’s urgent call to Air Force One. As Josh Holmes, McConnell’s former chief of staff, later told PBS’s documentary program “Frontline,” the Majority Leader delivered a two-part message: “I’m going to issue a statement that says that we are going to fill the vacant position ”and“ You must appoint Amy Coney Barrett. “
Why Barrett? The answer was obvious, although not yet spoken; there were motions to be made, after all. The point is that as of September 18, 2020, by all accounts she was the perfect choice.
Gorsuch and Kavanaugh had been surprisingly conventional choices. Both had been clerics at the Supreme Court. Both were Beltway creatures who had paid their dues in Republican politics and worked at high levels in the administration of President George W. Bush, Gorsuch in the Department of Justice as senior deputy to the Associate Attorney General and Kavanaugh in the White House as the President’s personal secretary. Bush rewarded each with a federal appellate judge position, and each had spent more than a decade on the bench.
Barrett was also a clerk at the Supreme Court, but there the similarity ended. By traditional Republican standards, it was far from a conventional choice. She didn’t have the Ivy League credentials shared by all the other sitting judges, who were all law graduates from Harvard (Roberts, Stephen Breyer, Elena Kagan, Gorsuch) or Yale (Thomas, Samuel Alito, Sonia Sotomayor , Kavanaugh.)
Barrett graduated from the University of Notre Dame Law School, after declining an offer of admission from the top-ranked University of Chicago Law School. “I am a Catholic and have always grown up loving Notre Dame,” she explained years later, adding: “I really wanted to choose a place where I felt like I wasn’t going. just study as a lawyer. I wanted to be in a place where I felt like I was developed and inspired as a whole person. A graduation speech she gave there in 2006, nine years after graduation, made it clear her special vision for her alma mater. “Keep in mind,” she told graduate students, “that your legal career is just a means to an end.” This end, she explained, “builds the kingdom of God.”
Compared to other recent candidates for the Supreme Court of Republican and Democratic presidents, his resume was slim. She had been a judge for a few months to less than three years. She had practiced law only briefly, spending the next two years as a partner in a Washington, DC law firm. She had never worked in government. After her stay in Washington, she returned to Notre Dame Refuge and spent 15 years in law school.
That Barrett was Catholic was not unusual. Quite the contrary, in fact; she would join a tribunal where six of the eight judges were brought up in the church: Chief Justice Roberts and Justices Alito, Sotomayor, Thomas, Kavanaugh and Gorsuch.
What was unusual was the public dimension of Barrett’s Catholicism, his willingness over the course of his pre-judicial career to attest to his adherence to Catholic doctrine on matters of public interest, abortion prominently among them. In 2013, on the 40th anniversary of the Roe v. Wade of the Supreme Court, which established the constitutional right to abortion, Barrett signed a statement published in the student newspaper Notre Dame by the University Faculty for Life and the Notre Dame Fund to Protect Human Life. “In the 40 years since the infamous Roe v. Wade of the Supreme Court, more than 55 million unborn children have been killed by abortions, ”the statement said. “We, the professors and staff of the University of Notre Dame reaffirm our full support for our university’s commitment to the right to life, we renew our call for the unborn child to be protected by law and welcomed into life, and we express our love and support for the mothers who wear them.
The year before, she had signed a statement criticizing the Obama administration for its implementation of the Affordable Care Act requirement to include contraceptive coverage in employer-sponsored health plans. Religious orders and churches themselves were exempt from the mandate, and religiously affiliated organizations like colleges and the chain of nursing homes run by an order of nuns, the Little Sisters of the Poor, sought the same exemption. Rather, the Obama administration offered them a hands-off “accommodation” whereby, without employer involvement, an organization’s insurance provider would purchase coverage and notify employees of its availability.
The statement Barrett signed in opposition to this policy, under the title “UNACCEPTABLE,” was drafted and disseminated by the Becket Fund for Religious Liberty, a leading organization that advocates against what it perceives to be government incursions. on the rights of believers. The statement called Obama’s policies “a serious violation of religious freedom“, adding: “It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims and others. other people of faith and conscience imagine that they will accept an attack on their religious freedom if only it is covered up by some cheap accounting trick.
In 2016, the University’s Faculty for Life, of which she was then a member, unanimously adopted a resolution condemning Notre-Dame’s decision to present Vice-President Joe Biden with the Laetare Medal, awarded each year to “An American Catholic in recognition of exceptional service to Church and society.” How could the vice president meet this qualification, asked the group, when he “clearly rejected for decades of the Church’s teaching on life ”by supporting the right to abortion?
To a member of the general public reading these statements, it may not matter that one of the participants happens to be an obscure professor of law. But Don McGahn was not a disinterested observer. He was himself a graduate of Notre Dame and a member of the conservative Federalist Society, serving as Trump’s legal advisor in the White House. He was the administration’s chief breeder, and he had dozens of appellate court seats to fill, positions the Senate had prevented Obama from filling. One was an Indiana seat on the Seventh Circuit. Obama attempted to fill the seat by appointing Myra Selby, the first woman and the first African American to sit on the Indiana Supreme Court. The Republican majority in the Senate had never heard it, so the seat was available for McGahn. The Trump administration was less than four months old when Barrett’s appointment was announced on May 8, 2017.
At her hearing before the Senate Judiciary Committee in September, the issue of religion was at the fore, as it has in federal court records across the country. Republican-controlled state legislatures enacted dozens of anti-abortion measures, many of which are now being challenged in the courts. Roe v. Wade himself was seen as increasingly vulnerable. Many courts were also dealing with ongoing religious challenges to the contraceptive mandate of the Affordable Care Act.
Democratic senators were openly skeptical about whether Barrett could put aside his deep religious commitments and, as a judge, approach these issues with an open mind. Her assurances that she might have failed to persuade California Senator Dianne Feinstein, the committee’s rank Democrat. Feinstein asked him, “Why do so many of us on this side have this very uncomfortable feeling that – you know, dogma and law are two different things.” And I think whatever religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion that one draws is that the dogma resides loudly in you, and it is concerning when you come to deal with big problems that many people fought for years in this country. “
Feinstein’s words turned out to be a gift to the Republican Party, eliciting an immediate and sustained reaction. The opinion piece portrayed the senator, and by extension all Democrats, as anti-Catholic, even anti-religion. Coffee mugs and T-shirts sold in Catholic bookstores and on the Internet bore the words “Dogma lives loudly in me.” When McGahn spoke at Barrett’s Seventh Circuit investiture ceremony, held at Notre Dame, he took the opportunity to joke, “We now affectionately call him Judge Dogma.”
In retrospect, Feinstein’s awkward question might have been the best thing that happened to Barrett on his first adventure in the public spotlight. People who would barely have noticed a Seventh Circuit nomination amid the chaos of Trump’s early months now knew his name. The meme of Catholic martyrdom that was now attached to the name resonated powerfully with the theme of Christian victimization that Trump had so successfully exploited during his rise to power. There is no need to claim that this influenced his confirmation on the Seventh Circuit, a fatality anyway. But without a doubt, it helped make his next chapter inevitable.
Copyright © 2021 by Linda Serre. All rights reserved.