Back when President Trump was planning to fill the seat of Justice Anthony Kennedy, I published short bios of all the people on his short list. He has since added to that list and it becomes important again as he plans to replace the late Justice Ginsburg with another woman.
I had planned to do a post on the five women that were on the “short, short” list. However, news broke this evening that the pick will be Judge Amy Coney Barrett.
Amy Coney Barrett
Personal:
48 y.o., married to Jesse Barrett, an AUSA for Northern Indiana, 7 children. Roman Catholic.
Current Position:Judge, 7th Circuit Court of Appeals, appointed by Pres. Donald Trump, confirmed Oct. 31, 2017
Education:
Rhodes College, BA, 1994
Univ. of Notre Dame Law School, JD summa cum laude, law review, 1997
Clerkships:
Judge Laurence Silberman, US Court of Appeals for the DC Circuit, 1997-1998
Justice Antonin Scalia, Supreme Court of the United States, 1998-1999
Previous Positions:Associate, Miller, Cassidy, Larroca & Lewin, Washington, DC., 1999-2001
Adjunct Prof., George Washington University Law School, 2001-2002
John M. Olin Fellow in Law, 2001-2002
Prof. of Law, University of Notre Dame Law School, 2002-2017
Visiting Prof. of Law, University of Virgina Law School, 2007
Scholarship:
Congressional Insiders and Outsiders, U.Chi. L. Rev. (forthcoming 2017).
Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017).
Congressional Originalism, 19 U. Penn. J. of Const. L. 1 (2017) (with John Copeland Nagle)
Countering the Majoritarian Difficulty, 31 Const. Comm. 61 (2017).
Statutory Interpretation in The Encyclopedia of American Governance (2016).
Federal Court Jurisdiction in The Encyclopedia of American Governance (2016).
Substantive Canons and Faithful Agency, 90 B.U. L. REV. 109 (2010).
Federal Jurisdiction in Encyclopedia of the Supreme Court of the United States.
Introduction: Stare Decisis and Nonjudicial Actors, 83 Notre Dame Law Review 1147 (2008).
Procedural Common Law, 94 Virginia L. Rev. 813-88 (2008).
The Supervisory Power of the Supreme Court, 103 Colum. L. Rev. 324 (2006).
Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317 (2005).
Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).
Catholic Judges in Capital Cases, 81 Marquette L.Rev. 303 (1998) (with John H. Garvey)
Judicial Opinions: In the short time Judge Barrett has been on the 7th Circuit Court of Appeals (written in 2018), she has authored eight majority opinions and one dissent. None of these had to do with issues surrounding either the First or Second Amendments.
Opposition:Judge Barrett, a practicing Roman Catholic and mother of seven, is loved by evangelicals and hated by the Left. The former hopes she’ll vote to overturn Roe v. Wade and the latter expect her to do that and thus find her objectionable. According to the left-wing Alliance for Justice, she decried Roe due to the Supreme Court “creat[ed] through judicial fiat a framework of abortion on
demand.” “
Some updates from my original post on Judge Barrett in 2018. Since she has been on the 7th Circuit, she actually had participated in a Second Amendment case. The case was Kanter v. Barr and Judge Barrett dissented.
From the SCOTUS Blog:
In a story in the National Review in August 2020, conservative legal activist Carrie Severino described Barrett as a “champion of originalism” during her short tenure so far on the 7th Circuit. In the 2019 case Kanter v. Barr, the court of appeals upheld the mail fraud conviction of the owner of an orthopedic footwear company. He argued that federal and state laws that prohibit people convicted of felonies from having guns violate his Second Amendment right to bear arms. The majority rejected that argument. It explained that the government had shown that the laws are related to the government’s important goal of keeping guns away from people convicted of serious crimes.
Barrett dissented. At the time of the country’s founding, she said, legislatures took away the gun rights of people who were believed to be dangerous. But the laws at the heart of Kanter’s case are too broad, she argued, because they ban people like Kanter from having a gun without any evidence that they pose a risk. Barrett stressed that the Second Amendment “confers an individual right, intimately connected with the natural right of self-defense and not limited to civic participation.”
From Damon Root at Reason.com about Barrett’s dissent in this case:
The categorical ban on gun possession by people with felony records is therefore “wildly overinclusive,” Barrett noted, quoting UCLA law professor Adam Winkler. “It includes everything from Kanter’s offense, mail fraud, to selling pigs without a license in Massachusetts, redeeming large quantities of out-of-state bottle deposits in Michigan, and countless other state and federal offenses,” she wrote. The ban is also underinclusive, she added, since people may reasonably be deemed dangerous even when they have not been convicted of a felony—for example, when they commit certain violent misdemeanors (another disqualification under federal law).
Given the poor fit between the ban’s scope and its ostensible purpose, Barrett said, it is not “substantially related to an important government interest”—the test under the “intermediate scrutiny” that the majority said it was applying in this case. “Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe,” she wrote. “Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.”
Barrett closed with a warning that will alarm gun control advocates but reassure people dismayed by the failure of federal courts to follow up on Heller and the Supreme Court’s 2010 decision in McDonald v. City of Chicago (which made it clear that the Second Amendment applies to state and local governments) by taking the right to arms as seriously as other constitutionally protected rights. “While both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data, that disarming Kanter substantially advances that interest,” she wrote. “On this record, holding that the ban is constitutional as applied to Kanter does not ‘put[] the government through its paces,’ but instead treats the Second Amendment as a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.'”
All I can say here is that if Judge Barrett had been Justice Barrett at the beginning of the year, we would not have seen the Supreme Court deny certiorari in the multitude of Second Amendment cases before it. Chief Justice John Roberts and his potential negative vote would have been mooted.
Groups, both liberal and conservative, have quickly sent out releases both anti-Barrett and pro-Barrett.
From Aimee Allison of “She The People” which is a San Francisco-based “national network connecting women of color to transform our democracy.”:
“Today’s news is devastating. Judge Amy Coney Barrett in no way fills the immense void Justice Ruth Bader Ginsburg left on our highest court. She is favored among Trump-loyal conservatives, and her judicial record makes it clear she would be solidly opposed to abortion rights and inclined, even eager, to reverse Roe v. Wade, and the Affordable Care Act.
“If confirmed, right-wing judicial activist Barrett would reshape the law and society for generations to come. She is a detriment to our democracy.
Conversely, the Club for Growth is quite pleased.
Club for Growth President David McIntosh praised President Trump’s nomination of Judge Amy Coney Barrett to the U.S. Supreme Court to fill the vacancy left by Justice Ruth Bader Ginsburg’s death.
“In the coming years, the Supreme Court will decide many critical cases on issues that will shape America’s economy. Either the Supreme Court will let the free-market operate without excessive government interference, or it will give the administrative state power it should never have. Judge Amy Coney Barrett is an excellent selection who has shown a rock-solid commitment to originalism and the Constitution.” McIntosh said.
“Yet again, President Trump has nominated an extraordinary judge to the Supreme Court. This choice will shape America’s future, as the Court considers cases relating to issues like the constant unconstitutional growth of government and whether federal agencies should have free reign to enact arbitrary rules without Congressional approval. Judge Barrett is a principled originalist, and we have every confidence that she will rule appropriately on these vital issues. We urge the U.S. Senate to move quickly to confirm Judge Barrett.”
It is going to be a war but a war I think we will win.
One last tidbit that I gleaned this evening from a little research. Judge Barrett and former NRA-ILA Director Chris Cox are both graduates of Rhodes College. I wondered if their times there overlapped and they did. Barrett was a 1994 graduate and Cox was a 1992 graduate. If Rhodes was anything like my alma mater Guilford, they may have had some classes together and most certainly would have seen one another on campus as both are small, liberal arts colleges.
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