Amy Coney Barrett Says Courts Can’t Right Every Wrong in Public Life

By Mark Walsh — October 12, 2020 6 min read
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U.S. Supreme Court nominee Amy Coney Barrett said Monday that “courts are not designed to solve every problem or right every wrong in our public life,” as Democrats on the Senate Judiciary Committee repeatedly cited educators and schoolchildren, among others, who might be affected by her judicial philosophy if she is confirmed.

“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” Barrett said on the first day of her confirmation hearing. “The public should not expect courts to do so, and courts should not try.”

Sen. Kamala Harris of California, the Democratic vice presidential nominee and a member of the committee, said the stakes of the nomination were high.

“Throughout our history, Americans have brought cases to the United States Supreme Court in our ongoing fight for civil rights, human rights, and equal justice,” said Harris, citing the landmark 1954 desegregation decision in Brown v. Board of Education of Topeka, “which opened up educational opportunities for black boys and girls,” as decisions on abortion, interracial marriage, and LGBTQ rights.

“The Unites States Supreme Court is often the last refuge for equal justice when our constitutional rights are being violated,” Harris said.

Barrett, a judge on the U.S. Court of Appeals for the 7th Circuit, in Chicago, paid tribute to the person she would succeed, Justice Ruth Bader Ginsburg, who died in September at age 87.

“I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place,” Barrett said. “I will be forever grateful for the path she marked and the life she led.”

But she emphasized, as she had at her White House announcement ceremony on Sept. 26, that she would strive to be in the mold of the conservative member of the high court for whom she had clerked, the late Justice Antonin Scalia.

“I felt like I knew the justice before I ever met him, because I had read so many of his colorful, accessible opinions,” Barrett said. “More than the style of his writing, though, it was the content of Justice Scalia’s reasoning that shaped me. His judicial philosophy was straightforward: A judge must apply the law as it is written, not as she wishes it were. Sometimes that approach meant reaching results that he did not like.”

COVID-19 Measures in Place

The hearing was notable for measures taken in response to the coronavirus pandemic, with senators spaced out on two different rows in the hearing room of the Hart Senate Office Building, minimal numbers of staff and reporters allowed in the room, and some senators and witnesses appearing remotely. A technical glitch prevented one law professor from the University of Notre Dame, where Barrett attended and still teaches part-time, from offering her remote introduction of the nominee until after Barrett had given her statement.

Barrett, who had COVID-19 earlier this year, wore a mask throughout the day except when she delivered her remarks.

Sen. Lindsey Graham, R-S.C., the chairman of the Judiciary Committee, said “this was going to be a long, contentious week” and was “probably not about persuading each other unless something dramatic happens. All Republicans will vote yes and all the Democrats will vote no.”

But he said the hearing would allow the country the opportunity to get to know Barrett.

Committee Democrats criticized the fact that the hearing was being held, based on its proximity to the presidential election as well as because two senators who had attended Barrett’s announcement ceremony at the White House had tested positive for COVID-19. (One of those, Sen. Mike Lee, R-Utah, appeared in person and spoke without wearing a mask. Graham said a physician had cleared Lee to do so. The other, Sen. Thom Tillis, R-N.C., appeared at hearing remotely.)

There was no questioning of the nominee on Monday, only opening statements. Democrats touched on a few education-related topics, while revealing that their strategy was to focus on the possible role that Barrett could play if she is confirmed in time to participate in a case involving the Affordable Care Act that the high court will hear on Nov. 10, the week after the election.

Sen. Amy Klobuchar, D-Minn., discussed Marny Xiong, the chair of the St. Paul, Minn., school board, who contracted COVID-19 and died in June at age 31.

“Marny was a rising star,” Klobuchar said. Republicans, she said, were in a “rush to put in a justice whose views are known and who will have a profound impact on your life ... where you can go to school, who you can marry, decisions you can make about your body, and yes, your health care.”

Sen. Mazie Hirono, D-Hawaii, brought up a teacher from her state named Jordan, who has a rare blood condition that requires transfusions that cost some $500,000 per year, also to stress the potential threat to the ACA by the case of California v. Texas.

Harris mentioned an 11-year-old Southern California student named Micah with a congenital heart defect.

“If Republicans succeed in striking down the Affordable Care Act, insurance companies will be able to deny coverage to children with serious conditions,” the California senator said.

Sen. Cory Booker, D-N.J., expressed a concern about workers who clean Senate office buildings and “people teaching in schools.”

“They can’t show up to work sick,” he said.

Sen. Ben Sasse, R-Neb., said he was mystified by the Democrats’ line of attack.

“A huge part of this hearing would be really confusing to 8th graders,” Sasse said. “Civics classes across the country tuned into this hearing and are trying to figure out what we are going to do. ... I think we should do our best to help 8th graders realize what a president runs for, what a senator is for, and what Judge Barrett is doing her before us today and what her job will be.”

Several Republicans criticized Democrats, interest groups, and the media for past on questioning whether Barrett would be unduly influenced by her Roman Catholic faith. But Democrats on Monday did not mention Barrett’s religion at all, and Sen. Richard Durbin, D-Ill., told reporters outside the hearing room that he did not believe that Democrats would pursue such lines of questioning.

Encouragement at Home and School

Barrett was accompanied in the hearing room by her husband, Jesse Barrett, also a lawyer and fellow Notre Dame law graduate, and six of their seven children. Their youngest, Benjamin, who has Down syndrome, remained at home, Barrett said. She provided snippets of description about each of them. Some of Barrett’s six siblings were in the room, she said, while others watched from afar, as did her parents, Mike and Linda Coney, who live in the New Orleans area.

“My father was a lawyer and my mother was a teacher, which explains why I became a law professor,” Barrett said. “More important, my parents modeled for me and my six siblings a life of service, principle, faith, and love. I remember preparing for a grade-school spelling bee against a boy in my class. And to boost my confidence, Dad sang, ‘Anything boys can do, girls can do better.’ At least as I remember it, I spelled my way to victory.”

Barrett also lauded the encouragement she had received from her “devoted teachers” at St. Mary’s Dominican High School in New Orleans.

“When I went to college, it never occurred to me that anyone would consider girls less capable than boys,” she said.

Barrett said that with every opinion she has written in her three years on the 7th Circuit court, she reads it from the perspective of the losing party.

“I ask myself how I would view the decision if one of my children was the party I was ruling against: Even though I would not like the result, would I understand that the decision was fairly reasoned and grounded in law?” she said. “That is the standard I set for myself in every case, and it is the standard that I will follow as long as I am a judge on any court.”

The Judiciary Committee is expected to question Barrett for long periods on Tuesday and Wednesday, with a panel of outside experts closing out the hearing on Thursday.

A version of this news article first appeared in The School Law Blog.