One of the exchanges, namely Sen. Diane Feinstein’s (D-Calif.) statement “the dogma lives loudly within you,” became so notorious that it continues to live on t-shirts and mugs. Feinstein’s line of questioning and comment aimed at getting to the bottom of whether Barrett was able to separate her religious views from her legal opinions.
To the California senator’s question, Barrett calmly and prudentially responded, “I would faithfully apply all Supreme Court precedent.”
But that wasn’t the only instance in which Barrett was grilled about whether her faith would affect her impartiality as a judge. The hostile questioning by senators, in particular those on the Democratic side, engendered frustration among religious leaders and conservatives as to whether an unconstitutional religious test was being applied to judicial nominees.
To uncover clues about what kind of a judge Barrett would be, her academic record was placed under the microscope and repeatedly dissected during the hearing. Even a lecture she gave for Alliance Defending Freedom’s (ADF) Blackstone Legal Fellowship program drew intense scrutiny.
Role of Faith in Deciding CasesBarrett was repeatedly pressed by senators on both sides of the aisle about a law review article she co-authored with one of her professors in 1998 (pdf), as a third-year student. The paper explored the conflict of a Catholic judges’ faith and his or her judicial responsibility in death penalty cases.
In the paper, she and her co-author suggested that Catholic judges were “morally precluded from enforcing the death penalty” and that “judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.”
They suggested the best course of action to such a conflict would be “the recusal of judges whose convictions keep them from doing their job.”
During the hearing, Barrett was asked whether her stance had changed since then and to explain how her religious views would affect her jurisprudence as a judge by multiple senators, including then-committee Chairman Sen. Chuck Grassley (R-Iowa).
She then explained the context of how the paper was written, adding that some of her views on the issue had changed since writing the paper 20 years ago. She then went on to stress that a judge is never permitted to follow their personal convictions when deciding a case.
“I continue to stand and vehemently believe the core proposition of that article, which is that if there is ever a conflict between a judge’s personal conviction, and that judges duty under the rule of law, that it is never ever permissible for that judge to follow their personal convictions and the decision of a case rather than what the law requires,” she said.
Later in the hearing, when asked about whether she would recuse herself in death penalty cases, she indicated that she wouldn’t and that she had “routinely participated in capital cases” when she clerked for Justice Antonin Scalia.
PrecedentsBarrett fielded a number of questions about her stance on how Supreme Court rulings, usually called precedents, apply to lower courts. Most of the questions appeared to test whether Barrett would overrule decisions that she didn’t agree on, in particular ones relating to important social issues such as abortion.
Throughout the hearing and in her written answers to the committee, Barrett made it clear that as an appeals court judge, she would be obligated to follow Supreme Court precedent and precedent from her own circuit.
“I understand circuit judges to be absolutely bound by the precedent of the Supreme Court and the Supreme Court has held on a case called Rodriguez de Quijas that that obligation is absolute that circuit court judges are not permitted, for example, to anticipate overrulings of the court and jump the gun,” Barrett told Grassley.
She also added that “circuit courts are bound to follow the precedent of their own circuit” meaning that “judges follow precedent unless there are extraordinary circumstances that justify its overruling.”
Her Views on Roe v. WadeThe senators throughout the hearing pressed Barrett’s views over the 1973 Roe v. Wade, the Supreme Court ruling that legalized abortion in all 50 states, seeking to understand how the professor would apply the precedent in any potential cases.
Barrett repeatedly reiterated that if she was confirmed as an appeals court judge, all Supreme Court decisions would be binding on her. But throughout the hearing, she did not address whether Roe would be reviewable by the Supreme Court, which she is now nominated to.
Senators were quick to question her decision for doing that.
During questioning by Sen. Mazie Hirono (D-Hawaii), Barrett was asked whether she would include Roe on the list if a different definition of “super-precedent” was used.
Given that Barrett has been nominated to the Supreme Court, where she has the ability to influence precedents in the country, it’s likely that the topic would be raised again in the October hearing.
On the Issue of RecusalBarrett was asked several times whether she would recuse herself from any cases, especially in relation to the death penalty.
During the hearing, she responded, “I can’t think of any cases or category of cases in which I would feel obliged to recuse on grounds of conscience,” while adding that she will act according to relevant law.
She replied: “I will recuse from any cases in which applicable law requires me to do so, including cases in which I have a financial interest; cases in which my husband, Jesse Barrett, participated; and, for a period of time, from cases in which my current employer, the University of Notre Dame, is a party.
Controversial LectureFormer Sen. Al Franken (D-Minn.) in 2017 pressed Barrett about her decision to speak to the Blackstone Legal Fellowship program, which is affiliated to Alliance Defending Freedom (ADF), a religious liberty non-profit organization.
The left-wing Southern Poverty Law Center, which maintains a list of what they claim are hate groups, had classified ADF as a hate group for its LGBTQ and marriage views. It had also classified many churches across the country as hate groups for the same reason.
“I actually wasn’t aware until I received the honorarium and saw the ADF on the check, or maybe when I saw an email and saw the signature line. But, yes, ADF is the organization that sponsors the Blackstone,” she said.
Franken then pressed her on whether she was aware of the Southern Poverty Law Center’s classification of ADF and the religious rights group’s policy positions.
“I’m invited to give a lot of talks as a law professor and ... I don’t know what all of ADF’s policy positions are and it has never been my practice to investigate all of the policy positions of a group that invites me to speak,” Barrett said.
In written responses to the Senate committee, Barrett clarified her response.
“At the time I gave a lecture at the Blackstone Legal Fellowship Program, I was generally aware that the program supported a traditional view of marriage,” she said. “I did not know what positions the Alliance Defending Freedom took in litigation or as a matter of public policy, and if the Alliance Defending Freedom was working to end same-sex marriage or recriminalize homosexuality abroad, I did not know it.
On Judges Who Align With Views, Judicial ApproachIn a written question to Barrett, Sen. Sheldon Whitehouse (D-R.I.) asked her (pdf) to identify judges who she thought aligned with her view or judicial decision making.
Barrett named three Supreme Court justices, adding that there are many more judges and justices who she would seek to emulate. The three were Justice Antonin Scalia, who she clerked for, Chief Justice John Marshall, who was chief justice from 1801 to 1835, and Justice Elena Kagan, who is currently on the bench.
“Justice Antonin Scalia, for whom I clerked, is the justice I know best, and I admire the fluidity of his thought, the clarity of his writing, and his careful attention to statutory and constitutional text,” she said.
She also said she admired Marshall for his “commitment to consensus and collegiality, which manifested itself in both the resolution of cases and his personal relationships with colleagues.”
Her admiration for Kagan is due to the “way in which she is able to bring the knowledge and skill she acquired as an academic to the practical resolution of disputes.”