Rooted in Faith, Representing a New Conservatism:
Amy Coney Barrett’s Path to a Court Pick
As Judge Barrett’s confirmation hearings are set to
begin, her background and résumé mark a stark departure from more traditional
nominees to the Supreme Court.
Elizabeth
DiasRebecca R. RuizSharon LaFraniere
By
Elizabeth Dias, Rebecca R. Ruiz and Sharon LaFraniere
Oct. 11,
2020
On a winter
afternoon in 2018, Judge Amy Coney Barrett rose to speak in Notre Dame Law School’s
wood-paneled courtroom and thanked the people gathered there for joining her
for her official investiture as a judge on the United States Court of Appeals
for the Seventh Circuit.
In the
audience were her parents, in town from her childhood home in New Orleans, and
her husband, who had described her as a kind of superwoman, along with six of
their seven children, who led the group in the Pledge of Allegiance. And there
were many friends — from law school, her Supreme Court clerkship and her Catholic
parish in South Bend, Ind.
Also in
attendance were a number of prominent conservative legal figures, mentors who
had helped make this moment happen. But perhaps the most important was a Notre
Dame graduate whose eyes were on the future, not the past.
That
graduate, Donald F. McGahn II, President Trump’s White House counsel, was known
for his single-minded focus on remaking the federal judiciary according to his
own conservative views. Contacts at his alma mater had lauded Ms. Barrett, then
a professor, and even before Mr. Trump’s inauguration he had envisioned someone
like her as a new kind of powerhouse on the Supreme Court — an outsider of
unbending conviction on social issues.
“We now
affectionately call her Judge Dogma,” Mr. McGahn joked when he got up to speak
at the ceremony, a reference to a remark by Senator Dianne Feinstein, Democrat
of California, at Judge Barrett’s confirmation hearing questioning her ability
to separate her religion from the law with words that were immediately
emblazoned on mugs and T-shirts produced by conservative groups.
Like many
of Mr. Trump’s original aides, Mr. McGahn has left the White House, and was not
at the Rose Garden event last month where the president announced his selection
of Judge Barrett to fill the vacancy created by the death of Justice Ruth Bader
Ginsburg. At that announcement, Mr. Trump, who in 2016 promised to appoint
justices who would overturn the federal right to an abortion, presented Judge
Barrett to an audience of prominent conservatives including the evangelist
Franklin Graham, the Fox News personality Laura Ingraham and the widow of
Justice Antonin Scalia, for whom she had clerked.
Their
enthusiastic response was a ratification of Mr. McGahn’s conviction, shared by
his successor as White House counsel, Pat Cipollone, and the president himself,
that selecting Judge Barrett for the court would be an election-year statement
to his most loyal supporters, social conservatives and members of the religious
right.
“She seems
like she was tailor made for this moment,” said Carrie Severino, the president
of the Judicial Crisis Network, a powerful lobby on behalf of conservative
judicial nominees.
Justices
Neil M. Gorsuch and Brett M. Kavanaugh, Mr. Trump’s two previous nominees, had
the kind of background traditional for Supreme Court nominees of both parties,
featuring Ivy League schools and government jobs on their résumé as well as
establishment religious beliefs. Judge Barrett embodies a different kind of
conservatism.
Judge
Barrett is from the South and Midwest. Her career has been largely spent
teaching while raising seven children, including two adopted from Haiti and one
with Down syndrome, and living according to her faith. She has made no secret
of her beliefs on divisive social issues such as abortion. A deeply religious
woman, her roots are in a populist movement of charismatic Catholicism.
From her
formative years in Louisiana to her current life in Indiana, Judge Barrett has
been shaped by an especially insular religious community, the People of Praise,
which has about 1,650 adult members, including her parents, and draws on the
ecstatic traditions of charismatic Christianity, like speaking in tongues.
The group
has a strict view of human sexuality that embraces once-traditional gender
roles, such as recognizing the husband as the head of the family. The Barretts,
however, describe their marriage as a partnership.
Some former
members of the group say it could be overly intrusive. Other members, like
Judge Barrett, appear to have treasured their connection to it. But she does
not appear to have spoken publicly about the group, and she did not list her
membership in the People of Praise when she filled out a form for the Senate
Judiciary Committee that asked for organizations she belonged to.
Around the
time of her appeals court confirmation, several issues of the group’s magazine,
“Vine & Branches,” that mentioned her or her family were removed from the
People of Praise website.
Family
members have also declined to comment on her participation.
To Judge
Barrett’s critics, she represents the antithesis of the progressive values
embodied in Justice Ginsburg, her life spent in a cocoon of like-minded
thinking that in many areas runs counter to the views of a majority of
Americans.
She has
made clear she believes that life begins at conception, and has served in
leadership roles for People of Praise, and her children’s school has said in
its handbook that marriage is between a man and a woman. Her judicial opinions
indicate broad support for gun rights and an expanded role for religion in
public life.
“Amy Coney
Barrett is everything the current incarnation of the conservative legal
movement has been working for — someone whose record, and the litmus tests of the
president nominating her, suggest will overturn Roe, strike down the A.C.A.,
bend the law toward big business interests and make it harder to vote,”
Elizabeth B. Wydra, the president of the liberal Constitutional Accountability
Center, said, referring to the Affordable Care Act.
The Senate
Judiciary Committee begins hearings on Judge Barrett’s nomination on Monday,
and if she is confirmed, as seems all but certain, she could have an effect as
early as next month, when the court will hear cases on the Affordable Care Act
and a clash between claims of religious freedom and gay rights. She will
represent a rising conservatism subtly different from what the court’s five
other Republican appointees embody.
“If you
think about the conservative coalition as being traditional business
conservatives, libertarians and Christian conservatives, Christian
conservatives have always been the outlier in that equation,” said Joshua C.
Wilson, a political scientist at the University of Denver who has studied the
way political and social movements use law in the pursuit of political ends.
“She has the credentials and experience of traditional secular conservative
lawyers that are familiar from the Federalist Society, but she is also firmly
related to and representative of the elite ranks of the emergent Christian
conservative legal movement.”
Judge
Barrett’s six siblings will be present for her hearing on Monday. But even as
the Barretts’ large extended family holds Judge Barrett and her husband, Jesse
Barrett, in high personal regard, family members have a wide range of religious
and political views reflective of the country’s, and tension over her nomination
is present. One member of Mr. Barrett’s family who opposes her confirmation
said her acceptance of Mr. Trump’s nomination in this politically fraught
moment reflected her allegiance and her husband’s to an ultraconservative
project.
“Probably
what is most important to them is their vision of how the world should work,
and their vision of how to get it there,” said the family member, who requested
anonymity to discuss sensitive family issues.
For Judge
Barrett, 48, that vision comes from a deep sense of calling, one rooted in
family and faith, and one that began before she was born.
Rooted in
Religion
The day
before Michael Coney’s 17th birthday, he came home from a summer job and found
his mother had died. Devastated, he turned to his Catholic faith. He studied to
be a Jesuit priest, then pivoted to law school and married a high school French
teacher, Linda Vath. When their first child was born in 1972, they named her
Amy Vivian, her middle name after his mother.
A new
spiritual movement was spreading through the Catholic church in New Orleans at
the time, led by a Jesuit priest who was the chaplain at Loyola University,
where Mr. Coney was studying law. The Rev. Harold Cohen preached a baptism in
the Holy Spirit, part of a growing global movement of charismatic Christian
worship practices. Mr. Coney, a lawyer for Shell Oil, later described having a spiritual
awakening at a charismatic seminar, and he was ordained a deacon in the
Catholic Church. When Amy married years later, Father Cohen performed the
ceremony.
Seeking to
emulate the close-knit community of the Twelve Apostles, Mr. Coney and his
wife, who had six girls and a boy after Amy, joined People of Praise, based in
South Bend, and were a grounding force for the group’s New Orleans community.
The group
became an organizing principle of their lives. Families promised to intimately
share their lives, from the spiritual to the financial, and often bought homes
near one another. A number of People of Praise families have lived on the
Coneys’ block. Mr. Coney was later elected to two six-year terms on the
national board of governors.
Old
Metairie, their significantly white and Republican-leaning suburb of New
Orleans, is a mix of modest and stately homes, with the Coneys’ two-story house
wrapped in taupe siding on the upper end.
Amy
attended St. Catherine of Siena, the school associated with her family’s
parish, and then, like her grandmother, mother, aunts and sisters, went to high
school at St. Mary’s Dominican, an all-girls Catholic school.
In a course
on social justice her junior year, the girls read papal encyclicals about
economic inequality, nuclear disarmament and the rights of workers, even as
they learned about the church’s stance against contraception and abortion.
Their teacher, Royann Avegno, 70, spoke often of her eight children, seven of
whom she had adopted, most with congenital conditions or special needs; three
died. She brought one child to visit the class — he could not stand or talk,
and she spoke with the students about the dignity of human life, even when it
was frail.
Years
later, when the Barretts adopted their first child from Haiti, weighing 11
pounds at 14 months old, Ms. Avegno said, Ms. Barrett sent her a note, invoking
her example.
A page in
Ms. Barrett’s senior yearbook devoted to the school newspaper shows a picture
of her busily writing above an item noting the Supreme Court had not expanded
or modified abortion rights in the 1989 session.
While many
high-school classmates stayed near home and went to Louisiana State University,
Ms. Barrett went six hours away to Rhodes College, a liberal arts college in
Memphis with about 1,400 students, roots in the Presbyterian Church and a
compelling financial aid package.
She
belonged to the Catholic students association, but her activities ranged far
beyond that: She joined everything from a mock trial group to the English
Society and was an orientation leader and resident adviser. She dated but not
seriously, friends said, pledging a sorority and socializing at the attendant
parties.
“She was
straighter than most of us, but she was not a stick in the mud at all,” said
Shannon Papin, her sophomore roommate.
An English
major with a minor in French, she felt pulled between following her father into
law or emulating her mother’s early career as a French teacher and becoming an
English professor. “I know she pondered being a nun at some point,” Ms. Papin
said. “But both she and her family felt that her talents pointed her in a
different direction.”
“The
impression she gave was of, not an unearned confidence, just that she had a
kind of maturity, a kind of poise,” recalled Jennifer Brady, a former Rhodes
professor who taught Ms. Barrett in several classes.
She took
her role on the student honor council especially seriously. She told the school
magazine her senior year that weighing potential infractions of the honor code
was a “heavy responsibility.”
“You have
the power to affect someone’s life,” she said. “You want to be absolutely sure
you’re doing the right thing by that person.”
When Ms.
Barrett applied to law schools, Ms. Brady said faculty members “spent hours”
arguing for her to consider Harvard over Notre Dame, which was generally not
highly ranked among the nation’s top law schools. Friends said Ms. Barrett later
told them that while she had been accepted at the University of Chicago, Notre
Dame had offered her a scholarship.
Later, she
mentioned other reasons. “I’m a Catholic, and I always grew up loving Notre
Dame,” Judge Barrett said in 2019. “What Catholic doesn’t?”
“I really
wanted to choose a place where I felt like I was not going to be just educated
as a lawyer,” she said. “I wanted to be in a place where I felt like I would be
developed and inspired as a whole person.”
‘A
Different Kind of Lawyer’
Notre
Dame’s goal was to produce “a different kind of lawyer,” who would explore the
“moral and ethical dimensions of the law,” as outlined on its website.
Classrooms feature crucifixes, and some professors open class with a prayer.
“Notre
Dame’s law school has done significant work not only to become one of the
nation’s elite law schools, but also to become arguably the nation’s elite
conservative law school,” Professor Wilson and Amanda Hollis-Brusky, a politics
professor at Pomona College in California, wrote in “Separate but Faithful,” a
new book on the conservative Christian legal movement.
The school
was a good fit for Ms. Barrett, according to Geoffrey Cockrell, a law school
classmate who has remained a friend. “She’s obviously very Catholic and was
always, like most of us, trying to figure out the intersection of your faith
with this career,” he said.
She ended
up living with friends of her parents, she wrote in a letter to her former
college roommate, Ms. Papin, the January after her first semester at Notre
Dame. “I love them,” she wrote. “It’s nice to live with a real family and have
home-cooked meals and laundry and conversation about stuff beside law school.”
After a
course on constitutional criminal procedure, Ms. Coney discovered a legal
approach that resonated: originalism, or the practice of interpreting the
Constitution according to what it meant when it was adopted.
“I wasn’t
familiar when I entered law school with originalism as a theory,” she said last
year in a speech at Hillsdale, a Christian college in Michigan. “But I found
myself as I read more and more cases becoming more and more convinced that the
opinions that I read that took the originalist approach were right.”
She
graduated at the top of her class and received an award for the highest
academic achievement. Her main interest at the time was public law, she told a
local newspaper in 1997. “I am also interested in seeing how government is
doing its job as it relates to protecting the citizens,” she said.
The
sentiment was opaque but suggestive. Combined with her commitment to
originalism, it indicated that she would seek to protect rights enumerated in
the Constitution, like free speech and the free exercise of religion, rather
than those that judges have drawn from its more general provisions, like the
right to abortion.
As Ms.
Barrett was standing out at Notre Dame, Republican leaders were looking to
cultivate female and minority candidates for the courts to help counter the
perception that the party was interested mainly in promoting white men. Two
conservative professors in particular wanted to help Ms. Barrett advance:
Patrick J. Schiltz, now a federal judge, and William Kelley, a former aide to
President George W. Bush who had extensive Republican political and legal
connections. Both had been Scalia clerks.
They helped
open the first door: a clerkship with Judge Laurence H. Silberman of the U.S.
Court of Appeals for the District of Columbia Circuit. Judge Silberman, a
Reagan appointee whose chambers typically accepted clerks from only top law
schools and often recommended them to Justice Scalia, hired her without even an
interview, after Mr. Kelley had insisted she would have been the top student at
Harvard, too, the judge said.
Halfway
through that clerkship, Mr. Kelley said, the judge called him and pretended to
be angry: “You undersold her,” he said.
Judge
Silberman, who said in an interview that he had appreciated Judge Barrett’s
analytical skills and clear writing, recalled introducing his clerk to
jellyfish at a Chinese restaurant in Washington one evening after work. He went
on to make a more significant introduction, recommending her to his close
friend Justice Scalia, whom he had once hired at the Justice Department when he
was deputy attorney general.
Another
Notre Dame professor, John Garvey, now the president of the Catholic University
of America, sent Justice Scalia simply one line: “Amy Coney is the best student
I ever had.”
Mr. Garvey
and Ms. Barrett wrote a paper together, arguing that Catholic judges may be
unable to enforce the death penalty because it would violate their beliefs. The
law review article, published in 1998, would set off controversy years later at
her Senate confirmation hearing — and inspire Senator Feinstein’s notorious
line of questioning.
When
Justice Scalia called to give her the clerkship, she was “stunned,” she told a
local paper. “Right now, I plan to practice law for a while, get married, start
a family and then maybe teach law,” she said. “That way, I can combine two
careers I really love — the law and teaching.”
Later, she became
engaged to Jesse Barrett, a fellow Notre Dame law student she had met in South
Bend.
At the
Supreme Court, Ms. Barrett bonded with one of Justice Clarence Thomas’s clerks,
Nicole Garnett, a fellow Catholic who had gone to Yale. Members of the broader
group of some three dozen clerks, of conservatives and liberals alike, saw Ms.
Barrett as a committed “textualist who was working for a textualist” and
respected her ability to simplify some of the court’s more complex cases.
“I remember
she just came in one day and said: ‘I’m going to volunteer this weekend. Mother
Teresa’s nuns run an AIDS hospice on Capitol Hill. Do you want to go with me?’
I said sure,” Ms. Garnett said. “It was not something I would have thought to
do in the middle of my clerkship, to go serve the dying with the nuns.”
When the
clerkship ended, she remained in Washington, following Ms. Garnett’s husband,
Richard, and another friend, Anthony Bellia, to the boutique law firm Miller
Cassidy at a time when it was helping represent Mr. Bush in the disputed 2000
election. Ms. Barrett conducted research and helped with briefs in that matter,
according to information submitted to the Senate.
The
Garnetts and Mr. Bellia and his wife had all served as Supreme Court clerks,
and Notre Dame Law School, which was building a new, distinctly conservative
faculty cohort, noticed. Both couples soon joined it.
Some
faculty members at the time feared that the balance was shifting too far to the
right, and that the law school was becoming too closely affiliated with the
conservative wing of the Republican Party and the growing Federalist Society,
according to four former and current professors.
But Mr.
Kelley, who was highly influential, helped recruit Ms. Barrett and successfully
pushed his colleagues to offer her a job. By then she had a daughter and was
wondering if she should quit working and stay home. Though she had taught law
as an adjunct at George Washington University, she had not widely explored
possible teaching opportunities, friends said.
But when
Notre Dame offered her a position, she took it, returning with her husband to
familiar ground.
Back to the
Academy
The
Barretts bought a Craftsman-style house blocks from campus, allowing her to
walk to work in a neighborhood filled with faculty members like the Garnetts.
Returning
as a 30-year-old professor, Ms. Barrett was not much older than her students.
She deliberately wore glasses, “to try to look very imposing,” she later said.
Organized, a good speaker and caring toward her students, she was repeatedly
voted teacher of the year.
In her
research and writing, she devoted herself to originalism — a topic with which
Justice Scalia was closely associated, and one sure to catch attention from the
conservative legal establishment.
She did not
seem particularly interested in electoral politics, but she telegraphed her
positions on certain policy issues, most notably around abortion. She joined an
anti-abortion faculty group.
In 2006,
she signed her name to a newspaper ad taken out by a local anti-abortion group
against “abortion on demand” and for “the right to life from fertilization to
natural death.” A similar ad, with her name included among fellow Notre Dame
faculty members, ran in 2013. “We renew our call for the unborn to be protected
in law and welcomed in life,” it read.
She signed
a letter opposing the Obama administration’s contraception mandate in 2012. And
for the 40th anniversary of the Roe decision in 2013, she addressed Notre Dame
students about abortion as part of a lecture series, making clear her
conviction that life began at conception, according to a campus magazine. But
she also said the core right to abortion established in Roe appeared secure, as
reported in a student newspaper.
“The
fundamental element, that the woman has a right to choose abortion, will
probably stand,” she said.
Raising her
profile further within conservative circles, Ms. Barrett reactivated her
membership in the Federalist Society’s grass-roots network of conservative
lawyers, in 2014. She began delivering more and more speeches, some to the
Federalist Society at college campuses like Indiana University in Bloomington,
Duke and Harvard. Many focused on originalism.
In a 2006
commencement address, she gave her students three pieces of advice: Pray before
accepting a new job. Give away 10 percent of what you earn to church, charity
or friends in need. Choose a parish with an active community and commit
yourself to cultivating relationships there.
“It’s only
when you’re an independent operator that your career takes over,” she said.
“When your life is placed firmly within a web of relationships, it is much
easier to keep your career in its proper place.”
Over the
years, as her own career advanced, her family kept expanding, with a new child
an average of about every two years.
The
Barretts learned that the adoption of their second child from Haiti had come
through at the same time that Ms. Barrett learned she was pregnant again. In
public remarks years later, she recalled walking to campus and sitting on a
cemetery bench contemplating a household with five children younger than 10. “I
just thought, OK, well, if life’s really hard, at least it’s short,” she said,
laughing. “But I thought, what greater thing can you do than raise children?”
When her
youngest son was born with Down syndrome, on oxygen in the intensive care unit,
she recalled that a friend had visited her bedside and joked that she had not
needed to be “so competitive.”
“You
already had the most interesting Christmas card,” the friend said.
The family
had a significant support system. Mr. Barrett’s aunt helped take care of their
children for years, allowing both parents to pursue their professional
ambitions.
Mr.
Barrett, who worked as a federal prosecutor before more recently entering
private practice, grew up in South Bend as an only child with an unusually
large extended family with a wide range of political views and religious
experiences that have not always neatly aligned.
Mr.
Barrett’s mother was an administrative aide to People of Praise, but nearly all
of the extended family, which numbers about three dozen cousins, has no
relationship to the group, according to a member of Mr. Barrett’s family who
requested anonymity to discuss sensitive family issues. Some, like Amy and
Jesse, have had positive experiences with it, but others have not, the family
member said, in part because of the group’s patriarchal structure.
“I think
some of Amy’s worldview is shaped by having been from birth part of this
close-knit supportive community,” the family member said. “Between church, God,
a supportive community, you end up thinking, why is welfare important, we can
have support from our community and God.”
Though Ms.
Barrett does not appear to have ever spoken publicly about her relationship to
the group, an issue of the group’s magazine, since removed from the People of
Praise website, shows she attended a 2006 leadership conference for women. A
membership directory obtained by The New York Times described her as one of 11
local leaders for female members in South Bend, a role previously called a
“handmaid,” inspired by a biblical reference to Mary, the mother of Jesus. It
listed her husband as a member, too.
She served
from 2015 to 2017 on the board of Trinity School, the private school of 250
students in South Bend that some of her children attend and that was started by
and remains closely linked to the People of Praise.
In 2014,
the board of trustees of Trinity Schools Incorporated, which also runs two
other schools, adopted a policy not to accept children of unmarried parents.
Indiana was then in the middle of an intense legal battle to overturn its ban
on same-sex marriage.
Jon
Balsbaugh, the organization’s president, said the school’s position then and
now was that marriage should be between a man and woman, and ex-Trinity staff
members said the admissions policy effectively excluded students of gay
parents. Mr. Balsbaugh said the policy was not mentioned in minutes of board
meetings that Ms. Barrett had attended, but ex-staff members said it was
enforced during her tenure. A person involved in the confirmation process said
she did not participate in creating the policy.
Little-Known
in Politics, but Embraced by Politicians
Ms. Barrett
was in a church vestibule after Mass in 2016 when she powered on her phone and
saw the texts pour in: Justice Scalia was dead. It was personal, for more
reasons than she could know at the time. For months, Senate Republicans refused
hearings not only for President Barack Obama’s nominee, Judge Merrick B.
Garland, to succeed him, but also for dozens of other federal judicial
nominations, including an Indiana seat on the Court of Appeals for the Seventh
Circuit.
Mr. McGahn,
the incoming White House counsel, moved quickly after Mr. Trump won the
election, prioritizing the effort to shift the courts decisively to the right.
Within weeks of the president’s inauguration, he nominated Judge Gorsuch to
fill Justice Scalia’s seat, which had been vacant almost a year.
Mr. McGahn
had heard of Ms. Barrett through Notre Dame connections, and he liked her
record as well as the fact that she was not the clear choice of the Republican
establishment, according to five people familiar with the nomination process.
At the same
time, Mark Paoletta, a lawyer in Vice President Mike Pence’s office who had
worked on judicial nominations during the George H.W. Bush administration and
helped shepherd Justice Gorsuch through his confirmation, set about identifying
top prospects for the appeals court in Indiana, Mr. Pence’s home state.
Amy Coney
Barrett’s name kept coming up, according to Mr. Paoletta, who sat in on her
interview at the White House with Mr. McGahn on March 1, six weeks into the
administration.
Ms.
Barrett’s academic writings suggested that she would be reliably conservative,
an ideal prospect for the high court. She was not just a favorite mentee of
Justice Scalia but also as a relative outsider who signaled something
different.
Ms. Barrett
was not a player in Indiana politics. She had never belonged to the Indiana
state bar, though she had been licensed to practice in Virginia and Washington.
But she had a following among conservative lawyers, especially in the
Federalist Society.
Indiana at
the time was a focal point for the movement to restrict access to abortion,
with Mr. Pence’s political rise and the enactment of state laws broadening
parental consent requirements, barring abortions based on gender or disability
and calling for the burial or cremation of fetal remains.
Senator
Todd Young, Indiana’s newly elected Republican senator, had just been sworn in
when Mr. McGahn called his attention to Ms. Barrett.
“He made
the initial introduction, indicating that within legal circles — meaning not
popular circles — she was very well respected,” Mr. Young said. “I asked if she
was an originalist, a faithful constitutionalist, and he assured me she was.”
Her
official nomination, months after Mr. Trump took office, put her among his
earliest picks for the bench.
She was
confirmed to the appeals court in October 2017 by a vote of 55 to 43, winning
the support of three Democrats, including Senator Joe Donnelly of Indiana, a
fellow graduate of Notre Dame Law School.
A ‘Subtly
Brave’ Stand From the Bench
Two and a
half weeks after she had been confirmed, Mr. McGahn saw to it that the new
judge’s profile would rise higher. In a speech to the Federalist Society, he
listed five new additions to the president’s running public list of favored
potential nominees to the nation’s top court. Among them were Judge Barrett and
Judge Kavanaugh.
Judge
Barrett’s formal investiture in South Bend was still months away.
It wouldn’t
be long before another vacancy on the Supreme Court — the seat formerly
belonging to Justice Anthony M. Kennedy — opened up. In a sign of the
administration’s big aspirations for the brand-new judge, Judge Barrett was
mentioned as a runner-up to Judge Kavanaugh.
Mr. Trump
gave an early signal of what he had in mind just a few months after she joined
the appeals court. “I’m saving her for Ginsburg,” he told people, according to
Axios.
Leonard
Leo, a longtime leader of the Federalist Society and its former executive vice
president, said the effort to put Judge Barrett “in play” had helped to further
familiarize conservatives with her and consolidate their support — ultimately
making a spontaneous nomination one sure to secure enough votes. “Don McGahn
very much wanted that and facilitated it, but it certainly wouldn’t have
happened without the president,” he said.
All the
while, Judge Barrett was settling into the daily rhythms of her new job. She
set up her chambers on the second floor of the federal bankruptcy court in
downtown South Bend. She christened it with a gift from Judge Don R. Willett, a
fellow Trump appointee to another federal appeals court with a history of
reveling in his uncompromising conservatism. He gave her a sign reading “Judge
like a champion today,” a play on a sign that Notre Dame football players slap
as they run on to the field.
For
hearings, Judge Barrett drove her gray minivan the roughly 90 minutes to
Chicago, where the Court of Appeals for the Seventh Circuit is based. She
joined the Union League Club to stay overnight when necessary, according to the
latest biographical details she submitted to the Senate.
Last fall,
at a black-tie gala hosted by the Federalist Society, Mr. McGahn celebrated the
Trump administration’s two Supreme Court appointees as well as the confirmation
of dozens of new appeals court judges with rock-solid conservative credentials
like Judge Barrett and Judge Willett.
“In the
last 25 years, we have seen our views go from the fringe — views that in years
past would inhibit someone’s chances to be considered for the federal bench —
to being the center of the conversation,” Mr. McGahn said. “Now, we are the
mainstream.”
On the
bench and in a mounting number of public appearances, Judge Barrett has
consistently embraced Justice Scalia’s approach to the law. “His judicial
philosophy is mine, too,” she said last month when Mr. Trump announced his
second nomination of her.
But legal
experts said there were important differences between the two judges, starting
with their demeanor. “Given the graciousness and charm that we all saw at the
Rose Garden ceremony, she potentially could be very influential behind the
scenes in ways that her mentor, with his sharper elbows, might not have been,”
Ilya Shapiro, a lawyer with the Cato Institute, a libertarian group, said at a
Heritage Foundation briefing.
On the
appeals court, Judge Barrett compiled a largely conservative record, expressing
repeated misgivings about rulings striking down laws restricting abortion. She
argued for an expansive view of gun rights, and she has voted to allow
executions to proceed, which was telling.
“Her
opinions in death penalty-related cases certainly are not in line with church
teaching,” Jonathan H. Adler, a law professor at Case Western Reserve
University, said at the Heritage event, “and further suggest that she
understands the oath she gives as a jurist is to apply the law before her
whether or not that coincides with her personal moral or other beliefs.”
But Judge
Barrett’s broad commitments to originalism and textualism do little to predict
how she will vote on the Supreme Court, and some legal experts said they did
not expect her to join decisions like the court’s ruling in June that a
landmark 1964 civil rights law prohibited job discrimination against gay and
transgender people. The majority opinion was written by Justice Gorsuch,
perhaps the court’s leading textualist.
“In
contrast to Justice Gorsuch, who seems to have more of Scalia’s libertarian
bent than does Barrett, her style of conservatism doesn’t seem to hold any
promise for L.G.B.T.Q. rights,” said Ms. Wydra, of the liberal Constitutional
Accountability Center. “In fact, unlike some corners of the Federalist Society
world, Barrett’s record doesn’t reflect really at all the type of conservative
libertarianism that we’ve seen come out in decisions from Chief Justice
Roberts, Justice Gorsuch or the late Justice Scalia.”
Judge
Barrett has acknowledged that judges using Justice Scalia’s methods do not
always agree, and she has broken from some Republican-appointed colleagues on
the bench.
Ms.
Severino, the head of the conservative Judicial Crisis Network, praised a
particularly provocative dissent of 2019, in which the judge disagreed with two
Reagan appointees and argued that a felon ought not have his gun rights taken
away unless he had a history of violence. “It’s subtly brave,” Ms. Severino
said of Ms. Barrett’s willingness to express an unpopular position.
Ms.
Severino was in the audience last month as conservatives gathered in the White
House Rose Garden for Mr. Trump’s announcement of the nomination. So were other
members of the conservative legal establishment, and 18 faculty and staff members
from Notre Dame.
But the
process itself, a race to fill a Supreme Court seat weeks before a presidential
election and in the middle of a pandemic, has already cost her some support.
While the Notre Dame law faculty and her former fellow Supreme Court clerks
generally supported her for the appeals court, some have said they will not
line up behind her this time.
That
includes Pat Hackett, the Democratic nominee for Congress in Indiana’s Second
Congressional District and an adjunct professor of law at Notre Dame who is
among the school’s progressive minority.
“My concern
is not that Judge Barrett is Catholic,” she said, going on to criticize what
she called extreme originalism. “There’s a presumption of correctness or moral
propriety,” she said. “There’s an effort to undermine the rich diversity of the
American people.”
With her
husband and children in the front row at last month’s White House ceremony,
Judge Barrett suggested she would try to bridge the bitter divides, invoking
the friendship between Justice Ginsburg and Justice Scalia, who had “disagreed
fiercely in print without rancor in person,” she said.
“If
confirmed, I would not assume that role for the sake of those in my own circle
and certainly not for my own sake,” she said, directly addressing the American
people. “I would assume this role to serve you.”
Elizabeth
Dias reported from Washington, Rebecca R. Ruiz from South Bend, Ind., and
Sharon LaFraniere from New Orleans. Adam Liptak contributed reporting from
Washington. Kitty Bennett contributed research.
Elizabeth
Dias covers faith and politics from Washington. She previously covered a
similar beat for Time magazine. @elizabethjdias
Rebecca
Ruiz is an investigative reporter based in New York. She previously worked for
the Washington Bureau, the sports section and the business section.
@rebeccaruiz
Sharon
LaFraniere is an investigative reporter. She was part of a team that won a
Pulitzer Prize in 2018 for national reporting on Donald Trump’s connections
with Russia. @SharonLNYT
A version
of this article appears in print on Oct. 12, 2020, Section A, Page 1 of the New
York edition with the headline: Court Nominee Is Conservative Rooted in Faith.
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