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 7^th 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.