On Thursday, October 29, Justice Clarence Thomas administered the Constitutional Oath to Amy Coney Barrett at the White House, making her the 115th Associate Justice on the Supreme Court of the United States. She is the fifth woman to chair that position after Justice Ruth Bader Ginsburg’s death. Because of a 2017 rule change, only a simple majority was required and the vote was 52 to 48. Barrett’s nomination consisted of three days of hearings on Capitol Hill on her positions in various areas such as healthcare, climate change, and case dealings. Along with the unique circumstances of a pandemic and a hearing process nearly days before a presidential election, Barrett’s confirmation allows us to explore her path to become part of the Supreme Court.
Amy Coney Barrett’s background in law was influenced by her hometown, education, mentors, and work experiences prior to being nominated. She was born in Louisiana and attended Rhodes College in Memphis, Tennessee as an undergraduate. She then went on to pursue law school at the University of Notre Dame. Along with her husband, she leads a family of nine in Indiana. Her past experiences including clerking for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit and for Associate Justice Antonin Scalia of the U.S. Supreme Court. She also has the experience of being an associate at Miller, Cassidy, Larroca & Lewin in Washington D.C. where she litigated constitutional, criminal, and commercial cases in trial and appellate courts.
Her judicial policy is said to be very similar to that of late Justice Antonin Scalia, who was her mentor. His policy is reflective of the ‘originalist’ perception where laws and the Constitution are based on what they were understood to mean when they were written.
Barrett had a short tenure as a judge on the 7th Circuit Court of Appeals where she ruled on cases involving abortion, gun-rights, and sexual assault. She was one of the judges in a three-panel case that would make it a law to hold a funeral for the fetal remains of an abortion or miscarriage. She voted to also have a case reheard that made it harder for a minor to have an abortion if her parents were not notified. In 2019, she argued that conviction for a nonviolent felony should not disqualify someone from owning a gun. She also was present in a case that would have made it easier for college men who committed sexual assault to challenge proceedings.
In the hearings, both parties highlighted her being a devout Catholic, and Barrett reassured senators she would not allow her faith to impact her court decision. She is the seventh member of the court to be either Catholic or raised Catholic. She has been more vocal about her faith than most, highlighting memberships in various religious based organizations.
Barrett has also been known for being the only justice on the current court to not have attended either Harvard or Yale for law school. She was a law professor at Notre Dame for 15 years before her nomination in 2017 for a judge on the U.S. Court of Appeals for the Seventh Circuit.
The recent hearings that confirmed Barrett’s nomination ran for four days. The session on Monday, October 12th comprised of opening statements and 10 minutes of questioning by 22 senators. Barrett was introduced and sworn in by the chairman to deliver her opening statement. Sessions on Tuesday, October 13th and Wednesday, October 14th consisted of multiple rounds of Q&A sessions with senators and Barrett. On Thursday, outside witnesses testified for or against Barrett’s nomination. The vote by the committee on whether to confirm Barrett was on Thursday, October 22nd. The decision to set this date was delayed by a brief protest by led Democrats to delay the confirmation vote deadline.
For the first two days, Barrett was questioned about issues relating to the election, her opinion on the Affordable Care Act (ACA, more commonly known as Obamacare), and her opinion on the case rulings of many well-known cases. She was questioned about whether the President is capable of delaying an election — a power that still remains in the hands of Congress. When asked about her views on Roe v. Wade and if she viewed the case as a super-precedent or not, Barrett said ‘she was not going to grade precedent or give it a thumbs-up or a thumbs-down.’ When asked about the presence of sexual and racial discrimination, Barrett erred on using the weighted term ‘sexual preference’ rather than ‘sexual orientation.’ She was then asked to release an apology on her mistake after it caused an outrage in the LGBTQ community.
Day three of the proceedings allowed senators to gain more insight into Barrett’s positions on the ACA, the President’s ability to pardon himself, and various landmark cases. She was asked if she would uphold ACA because of a principle known as severability and was further questioned on the severability doctrine. According to an article from Vox news, Barrett said,‘but she has not gone through the judicial process to decide it’ when asked about if President Donald Trump has the ability to pardon himself. She was asked then about her view on Griswold v. Connecticut (1965), which guaranteed couples the right to contraception in the privacy of their homes, where she said the precedent is ‘very, very, very, very, very unlikely to go anywhere.’ She was asked about another landmark case, Shelby County v. Holder, which allowed voter suppression in some states. She declined to once again to give her opinion on these but stated that racial discrimination still likely exists. She also declined to weigh an opinion on COVID-19 and climate change as a ‘very contentious matter of public debate.’ Barrett was known to have used the ‘Ginsburg rule’ in her responses to questioning these three days. The ‘Ginsburg rule’ is popularized by the late Justice Ruth Bader Ginsburg’s approach to answering questions wherein she does not deliver a clear opinion on if she agrees or disagrees with past precedents.
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