Senate Confirmation Hearings Set to Begin for Amy Coney Barrett to Fill Supreme Court Seat Left Vacant by Justice Ruth Bader Ginsburg’s Death

The U.S. Senate is preparing to move forward on October 12, 2020 with confirmation hearings on the controversial nomination of conservative federal appeals judge Amy Coney Barrett to fill the Supreme Court vacancy caused by the death of Justice Ruth Bader Ginsburg. If confirmed, Judge Barrett would shift the center of the Court farther to the right, solidifying the hold of a conservative majority that has become increasingly hostile to constitutional challenges to death sentences and executions. Her nomination also raises questions as to future direction of the Court on a range of social justice issues, including electoral representation, voting rights, access to abortion, and accountability for police and prosecutorial misconduct.

President Donald J. Trump announced Judge Barrett’s nomination on September 26, eight days after the death of Justice Ruth Bader Ginsburg, in a Rose Garden ceremony and reception that has been likened to a COVID-19 “superspreader event.” Participants and guests at the event neither wore masks nor practiced social distancing and, shortly thereafter, the President, numerous top aides, military leaders, U.S. senators, and the President of Notre Dame University, where Barrett attended law school, tested positive for the coronavirus. The Senate Judiciary Committee indicated the outbreak would not affect its timeline for considering Barrett’s nomination.

When Justice Antonin Scalia died in February 2016, nine months before the presidential election, Senate Majority Leader Mitch McConnell refused to conduct confirmation hearings for President Barack Obama’s Supreme Court nominee, federal appeals court judge Merrick Garland. McConnell said at the time that it should be left to voters to decide who should appoint the justice. A Washington Post/ABC News poll conducted September 21–24, 2020 found that 57% of Americans believe that Ginsburg’s replacement should be appointed by the winner of the 2020 presidential election, while only 38% percent say the position should be filled now. McConnell has nevertheless vowed that the Senate will consider Barrett’s nomination on an expedited basis.

President Trump appointed Judge Barrett, a former clerk for Justice Antonin Scalia, to the U.S. Court of Appeals for the Seventh Circuit in 2017. She remains on the faculty of Notre Dame Law School where she has been a professor since 2002. In her circuit court confirmation hearings, Judge Barrett drew scrutiny on her suggestion that “orthodox” Catholic judges who follow the Church’s opposition to the death penalty should recuse themselves from capital cases. She has also been a paid speaker at a summer legal fellowship program that advocates the adoption of a “distinctly Christian worldview in every area of law.”

Barrett clerked for Scalia during the October 1998 Supreme Court term, which ran from the summer of 1998 to the summer of 1999, and has said she was involved in reviewing death penalty cases. Ninety-eight prisoners were executed in the U.S. in 1999 — the most since the Jim Crow era in the early 1950s. A DPIC review of Supreme Court decisions from October 1, 1998 through July 15, 1999 found that the Court denied more than 100 applications for stays of execution during that period and vacated three stays granted by lower federal courts, while granting stays of execution to decide whether to review issues presented by death-sentenced prisoners only three times.

During her tenure on the Seventh Circuit, Judge Barrett has not been involved in any cases involving prisoners sentenced to death in the state courts. However, she did sit on appellate panels in the case of federal death-row prisoner Daniel Lewis Lee in July 2020. Those decisions gave the go-ahead for Lee’s execution, with Barrett voting to deny Lee a stay of execution and against addressing the merits of his claims of ineffective assistance of counsel, suppression of exculpatory evidence, and presentation of false evidence and argument, and voting to vacate a district court injunction that would have temporarily postponed his execution. In the latter decision, Barrett joined an opinion that called the efforts of victims’ family members’ to delay Lee’s execution until after the COVID-19 pandemic “frivolous.” The family opposed putting Lee to death, but wanted to witness the execution. However, their age and medical circumstances put them at high risk of death or severe illness from COVID-19.

When asked to list notable opinions in a questionnaire submitted in preparation for the confirmation hearings, Judge Barrett highlighted her dissenting opinion in a non-capital murder case involving the Sixth Amendment right to counsel. The petitioner had been questioned by a judge at a pretrial hearing from which the petitioner’s counsel was barred, which the panel majority ruled was constitutionally improper. Judge Barrett voted to deny the petitioner federal habeas corpus relief, arguing that the trial court’s ruling had not violated clearly established U.S. Supreme Court precedent. The panel decision was later overturned by the full 7th Circuit with Judge Barrett in the majority.

In 1998, Barrett co-wrote a law review article about the role of Catholic judges in death-penalty cases. She argued that Catholic judges who sign execution warrants and issue death sentences do so in violation of Catholic principles. Barrett argued that recusal would be appropriate in those cases. However, she did not see the decisions of judges on appeals as violating Catholic principles. Her writings were based on Catholic doctrine at the time. She wrote: “The prohibitions against abortion and euthanasia, properly defined, are absolute. Those against war and capital punishment are not.” Pope Francis recently clarified Catholic doctrine, stating that there is an absolute prohibition against capital punishment. In the 2017 confirmation hearings, Barrett stated that she “would not enter an order of execution.” But she did not commit to recuse herself from all capital cases, and she noted that she had assisted with death-penalty cases while clerking for Justice Scalia.

Sources

Marianne Levine, Barrett speaks with key Senate Dems amid calls to delay her hear­ing, Politico, October 7, 2020; Emma Brown and Jon Swaine, Amy Coney Barrett, Supreme Court nom­i­nee, spoke at pro­gram found­ed to inspire a dis­tinct­ly Christian world­view in every area of law’, Washington Post, September 27, 2020; Adam Liptak, Barrett’s Record: A Conservative Who Would Push the Supreme Court to the Right, New York Times, September 26, 2020; Scott Clement and Emily Guskin, Majority says win­ner of pres­i­den­tial elec­tion should nom­i­nate next Supreme Court jus­tice, Post-ABC poll finds, Washington Post, September 25, 2020; Debra Cassens Weiss, A top SCOTUS con­tender, Amy Coney Barrett is like­ly to draw scruti­ny for deci­sions on abor­tion, cam­pus sex assault, ABA Journal, September 21, 2020; Amy Howe, Profile of a poten­tial nom­i­nee: Amy Coney Barrett, SCOTUSBlog, September 212020.

Read Amy Coney Barrett and John H. Garvey, Catholic Judges in Capital Cases, 81 Marq. L. Rev. 303 (1997 – 1998), Judge Barrett’s dis­sent­ing opin­ion in Schmidt v. Foster, and her judi­cial ques­tion­naire.