Amy Coney Barrett

Meet the Shortlisters: Amy Coney Barrett

Judge Amy Coney Barrett has undergone a meteoric rise.  On the bench for less than a year and having practiced law for only two, Barrett is now a leading contender for the U.S. Supreme Court.  In the jockeying among various candidates on the shortlist, Barrett is the favorite of social conservatives, which may both hurt and assist in the nomination process.

Vital Statistics

Name: Amy Vivian Coney Barrett

Age: 46

Current Position: Judge on the U.S. Court of Appeals for the Seventh Circuit (since 2017)

Education: B.A. from Rhodes College; J.D. from Notre Dame Law School

Clerkships: Judge Laurence Silberman, U.S. Court of Appeals for the D.C. Circuit; Justice Antonin Scalia, U.S. Supreme Court

Prior Experience: Professor of Law at Notre Dame Law School from 2002 to 2017

Jurisprudence

Of all of Trump’s shortlist picks, Barrett has the least amount of judicial experience.  She has served on the U.S. Court of Appeals for the Seventh Circuit since October 2017, and has never been a judge before.  In her eight months on the bench, Barrett has authored just nine opinions, only one of which drew a dissent. Her opinions are outlined below:

Criminal

  • Schmidt v. Foster – This was a collateral challenge to the defendant’s murder conviction.  At his trial, the defendant had sought to use a provocation defense. To ensure that the defendant had an evidentiary basis for the defense, the trial judge interviewed him in an ex parte hearing, with the defense attorney present but unable to participate.  On habeas review, the majority of the Seventh Circuit overturned the conviction, finding that preventing the defendant from accessing his counsel during the ex parte hearing violated his rights under the Sixth Amendment.  Barrett dissented, arguing that there was no evidence that the defendant’s rights were violated.
  • Perrone v. United States – The defendant sought to withdraw a plea agreement he had made, arguing that his counsel had been deficient.  The defendant argued that his counsel should have informed him that the government needed to show that his distribution of cocaine was the but-for cause of the victim’s death.  Barrett rejected this argument, noting that, under the Strickland standard, the defendant would be unable to show that his deficient counsel prejudiced him.
  • United States v. Barnes – The defendant, in this case, sought to challenge his sentence, arguing that the court incorrectly used his local marijuana conviction to enhance his sentence.  Barrett rejected this argument, noting that the defendant failed to properly object to the enhancement, and, as such, forfeited the claim.

Civil

  • Wisconsin Central Ltd. v. TiEnergy, LLC. – This case involved a suit to recover demurrage (statutory fees imposed when rail cars are unduly detained).  After a Wisconsin Central car was detained at TiEnergy’s facility, Wisconsin Central filed suit to recover the demurrage incurred.  Barrett wrote for the panel in finding that TiEnergy needed to reimburse the demurrage fees.
  • Goplin v. WeConnect, Inc. – This case turned on whether the plaintiff-employee was bound by an arbitration agreement in resolving his Fair Labor Standards Act (FLSA) claim against defendant-employer.  Barrett ruled that the arbitration agreement did not control, as the company mentioned in the agreement was AEI, not WeConnect. Barrett also rejected the defendant’s argument that AEI was merely the former name of WeConnect.
  • Fiorentini v. Paul Revere Life Insurance Co. – The plaintiff, a business owner, received total disability coverage through insurance while undergoing cancer treatment.  After being cancer-free for five years, the plaintiff returned to work, and the total disability coverage ceased. Plaintiff filed suit for breach of contract, arguing that the side effects from the cancer treatment still left him disabled under the insurance agreement.  Barrett disagreed, finding that the plaintiff was able to conduct most of the essential functions of his position, and, as such, he was not totally disabled.
  • Dalton v. Teva North America – The plaintiff sued the manufacturer of an intrauterine device (IUD) after it broke during its removal.  Barrett affirmed the dismissal of the plaintiff’s claims, noting that Indiana law requires the use of expert evidence to prove causation, and the plaintiff had failed to present expert evidence.
  • Boogard v. Nat’l Hockey League – This was a wrongful death action brought by parents of a NHL player who died of a drug overdose.  Barrett affirmed the dismissal of plaintiffs’ claims, noting that the plaintiffs had failed to respond to the defendant’s 12(b)(6) motion, and had, in doing so, forfeited their claims.
  • Webb v. Financial Indus. Regulatory Auth. – This case involved a breach of contract action brought against FINRA based on the failure to train arbitrators.  Barrett wrote for the panel majority in dismissing the claim, finding that the amount in controversy requirement was not satisfied for diversity jurisdiction.  Judge Kenneth Ripple dissented, arguing that, accepting the plaintiffs’ claims, the amount had been satisfied.
  • Walton v. EOS CCA – This suit challenged a debt collector’s practices under the Fair Debt Collection Practices Act.  Barrett held that the collector had met their requirements under federal law.

 

Academic Writing

As a law professor for sixteen years before she joined the bench, Barrett was fairly prolific in detailing and explaining her view of the law.  In her academic writings, Barrett occasionally took on controversial positions.

Most notably, in 2003, Barrett published an article in the University of Colorado Law Review calling into question the application of stare decisis in certain cases.  The article, titled Stare Decisis and Due Process argues that, just as the due process clause limits the application of issue preclusion (or collateral estoppel), it should similarly limit the application of stare decisis.  Barrett argues that a more flexible application of stare decisis is not only consistent with history, but would not impair the appropriate value of precedent.  Barrett was questioned on this “flexible” view of stare decisis during her confirmation hearings, and the issue is likely to come up again if she is elevated.

Additionally, in an article titled Catholic Judges in Capital Cases, Barrett debates whether a Catholic judge would be required to recuse themselves in capital cases based on their religious objections to the death penalty.  Barrett’s ultimate conclusion in the article is as follows:

“Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge.  They should, however, conform their own behavior to the Church’s standard.”

This conclusion led to criticism suggesting that Barrett was advocating that a judge base their decisions on church policy rather than the law.  Such criticism was, in turn, dismissed by some commentators as anti-Catholic.

Why Trump Could Choose Barrett as His Nominee

In his nominee, Trump is seeking someone with Ivy League credentials and a long academic record.  While Barrett is not an Ivy League alumnus, as a Supreme Court clerk, her credentials rival those of any Yale or Harvard graduate.  Furthermore, Barrett has a wider and stronger academic record than any of Trump’s other finalists.

Furthermore, Barrett’s selection makes sense politically.  First, Barrett is a woman, and thus, harder to caricature as a conservative extremist.  Second, Barrett has strong support from social conservatives, a key constituency in the Supreme Court fight.  Third, Barrett is from Indiana, putting Sen. Joe Donnelly (D-Ind.) in an impossible position.  If he opposes Barrett, he risks alienating the center-right voters he needs to win re-election.  If he supports Barrett, he risks alienating his own base, who he also needs.  In other words, a Barrett pick would vastly increase the chances of Donnelly losing re-election, and, as such, of Republicans holding the Senate.

Why Trump Would Not Choose Barrett as His Nominee

There are three main reasons why Barrett may not be chosen as the nominee.  First, Barrett does not yet have the requisite level of experience for the Supreme Court.  Republicans are still wary from the nomination of Justice David Souter (an expected conservative who became a reliably liberal vote) and may seek stronger confirmation of Barrett’s jurisprudence before elevating her.  Second, Barrett risks fracturing the Republican caucus.  Republican Sen. Susan Collins has already indicated that she will not back any nominee who opposes Roe v. Wade or who does not commit to stare decisis.  Given Barrett’s writings on the subject, her confirmation may end up being much more difficult than those of other shortlisters.  Third, given the comparative paucity of female Supreme Court candidates on the right, Trump may choose to “save” Barrett for a seat vacated by a female Justice (e.g. Justice Ruth Bader Ginsburg).

Expected Lines of Attack

Barrett has already undergone one grueling confirmation process, receiving just three Democratic votes.  If she is nominated again, expect emphasis on Barrett’s view on Roe v. Wade, given her status as the likely fifth vote on rehearing the case.

Likelihood of Nomination

Had the nomination come out this week, I’d have expected Barrett to be the nominee.  However, a brutal series of attacks by social conservatives on expected frontrunner Brett Kavanaugh may have had the side-effect of weakening Barrett as well.  Nevertheless, given the political benefits of nominating Barrett,a Barrett nomination should be no surprise.

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Thoughts on the Sept. 6th Judiciary Committee Hearing

Today, the Senate Judiciary Committee held a hearing on two circuit court nominees, two district court nominees, and one executive nominee.  Here are my preliminary thoughts on the proceedings, which can be watched here.  (I’ll focus on the first panel, as Parker and Campbell skated through and will be confirmed easily).

DISCLAIMER:  These are just my opinions.  Reasonable observers of the hearing can obviously disagree on any of these points.

  1. Two Circuit Court Nominees Will Not be The Norm – Chairman Chuck Grassley (R-IA) started the day by recognizing that the hearing will be the second with multiple circuit court nominees, a fact that had drawn liberal criticism.  Grassley’s statement acknowledged that the hearing was “unusual” and suggested that he would go back to having only one circuit court nominee per hearing.
  2. Joan Larsen Will Be Confirmed – Republicans really want Justice Larsen on the circuit court bench; running ads to influence home state senators, threatening to ignore blue slips, and double-booking her with another controversial nominee.  Over the course of the hearing, it was clear why.  Larsen was poised and comfortably conversed with senators on several legal issues.  She assured Democrats that she would be willing to rule against Trump, and emphasized the importance of judicial independence.  She also blunted another line of criticism by confirming that she had no role in the controversial “torture memos” which came from the Office of Legal Counsel (OLC) during her tenure there.  As I’ve noted before, the strongest argument against Larsen is a procedural one based on lack of consultation.  Now that the blue slips are in, it’s a question of when, rather than if, Larsen will be confirmed.
  3. Amy Barrett Will Be Strongly Opposed – As Sen. Dianne Feinstein (D-CA) noted early in the hearing, Barrett is “controversial.”  Her writings on Catholic judges and the death penalty and stare decisis have drawn criticism.  For much of the hearing, Barrett carefully navigated her old writings, assuring the Committee that she would follow precedent and that judges could not let their religious views supersede the law.  However, much of the posturing was undone by two key missteps.  First, under questioning from Sen. Mazie Hirono (D-HI), Barrett declared that, had she been nominated as a trial judge, rather than as an appellate judge, her Catholic faith would compel her not to enter orders of execution.  Sen. Hirono balked at the answer, but did not ask the obvious follow-up: why does Barrett feel compelled to recuse herself from entering orders of execution as a trial judge, but not from affirming such orders as an appellate judge?  Second (and much more damaging from a PR perspective), in an exchange with Sen. Al Franken (D-MN), Barrett acknowledged that she had accepted $4200 from the controversial anti-LGBTQ group Alliance Defending Freedom (ADF).  When Franken pointed out that ADF held many extreme views, including supporting the sterilization of transgender persons, and had been designated as a hate group by the Southern Poverty Law Center (SPLC), Barrett inexplicably tried to defend ADF.  She argued that as ADF had filed as co-counsel at the Supreme Court with Wilmer Hale and that, as she herself had experienced no discrimination while interacting with them, they could not be a hate group.  It was an unnecessarily defensive performance and undermined her careful answers until that point.
  4. Franken Remains the Minority’s Best Questioner – In the last “big” hearing,  Franken helped lead the Democrat’s charge against John Bush and Damien Schiff.  This time, he shone in his exchange with Barrett, honing in on inconsistencies in her answers, pressing for follow ups, and stepping back when needed.  Despite not having a law degree, Franken’s performance was one any trial attorney would be proud of.
  5. Sen. Kennedy Remains the Majority’s Toughest Questioner – During the Bush-Newsom-Schiff hearing, Sen. John Kennedy (R-LA) hammered the latter for his inflammatory blog posts and refused to question Bush at all.  This time, Kennedy started off his questioning by noting that some Republicans had suggested he “go easy” on the Trump nominees.  He declined to do so, pushing Barrett and Larsen to engage with him on legal philosophy, and criticizing them when they refused to do so.  Sen. Mike Lee (R-UT) was forced to come to their defense, noting that the nominees were ethically barred from answering some of Kennedy’s questions.  Nevertheless, an unchastened Kennedy maintained the same tempo of questioning in his second round.  At any rate, while Kennedy will likely support both Barrett and Larsen, his desire to engage in real legal debate is refreshing and makes him a welcome presence on the committee.
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Professor Amy Coney Barrett – Nominee to the U.S. Court of Appeals for the Seventh Circuit

The Seventh Circuit is known for attracting academics.  Three of its most prominent judges, Richard Posner, Frank Easterbrook, and Diane Wood, served as law professors before being elevated to the bench.  If confirmed, Prof. Amy Coney Barrett will continue that trend.

History of the Seat

Barrett has been nominated for an Indiana seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened in February 2015 with the retirement of Judge John Daniel Tinder.[1]  Even though Tinder’s plans were leaked almost a year before his actual retirement,[2] the Obama Administration did not submit a nominee to the Senate until January 2016, when Myra Selby, a former justice on the Indiana Supreme Court, was nominated.[3] 

While Selby’s nomination was strongly supported by Sen. Joe Donnelly (D-IN), Sen. Dan Coats (R-IN) opposed the nomination, arguing that the nominee should be selected by a bipartisan commission for the state.[4]  With Coats declining to return a blue slip, the Senate Judiciary Committee did not take any action on Selby’s nomination, and it was returned unconfirmed at the end of the 114th Congress.  As such, the vacancy was left open for Trump to fill.

Background

Barrett was born as Amy Vivian Coney on Jan. 28, 1972 in New Orleans, Louisiana.  After getting a B.A. from Rhodes College, Barrett attended Notre Dame Law School, where she was executive editor of the Notre Dame Law Review.  After graudating from law school, Barrett clerked for Judge Lawrence Silberman on the U.S. Court of Appeals for the D.C. Circuit, and obtained a prestigious Supreme Court clerkship with Justice Antonin Scalia.  

After her clerkship, Barrett joined the D.C. office of Miller, Cassidy, Larocca & Lewin LLP, which merged into Baker Botts LLP.  While at Baker, Barrett was a part of the legal team representing then-Governor George W. Bush in Bush v. Gore.  

As an attorney at Baker, Barrett started working as an adjunct faculty member at the George Washington University Law School, co-teaching a class with fellow Baker attorney John Elwood (himself a distinguished Supreme Court practitioner).  Shortly after, Barrett joined the Law School as a John H. Olin Fellow in Law.  In 2002, Barrett moved to become a Professor of Law at Notre Dame Law School, her alma mater.  Other than a short stint as a Visiting Associate Professor of Law at the University of Virginia, Barrett has served at Notre Dame ever since.  

In February 2017, Barrett was contacted by the Office of Sen. Todd Young (R-IN), and asked about her interest in a Seventh Circuit opening.  After confirming her interest, Barrett completed an application, met with the Senator, the White House and the Department of Justice.[5]  On May 8, President Trump formally nominated Barrett to the Seventh Circuit.[6]

Legal Practice

Because Barrett has spent the vast majority of her professional life as a law professor, she has relatively little experience in litigation.  During her two years at Baker Botts, Barrett worked on cases in the trial and appellate courts, including the second-chairing of an accounting malpractice case in Virginia state court.[7]  As noted earlier, Barrett was also part of the legal team in Bush v. Gore.  

In 1999, Barrett assisted the appellate counsel for two individuals convicted of conspiracy to defraud several government agencies.[8]  Barrett, working with other attorneys, raised several challenges to the convictions and sentence, including challenges to the sufficiency of the evidence, and the jury instructions.  Ultimately, the Second Circuit affirmed the convictions and the sentences.[9]

In 2000, Barrett was part of the legal team representing the National Council of Resistance of Iran in challenging their designation as a “foreign terrorist organization” by the State Department.[10]  The D.C. Circuit sided with Barrett, holding that the designation violated the Council’s due process rights, reversing and remanding.[11]  The designation was eventually lifted by Secretary of State Hillary Clinton in 2012.[12]

Writings

As a law professor, Barrett has written exhaustively on a range of legal issues, often taking legal positions that call into question established legal doctrines.  For example, in one article, Barrett argues that the traditionally held view of the Supreme Court’s supervisory power over lower courts is flawed.[13]  In her confirmation, Barrett is particularly likely to face questions about her writings challenging the principle of stare decisis.

The legal doctrine of stare decisis is the foundation of a common law system.  The doctrine asks courts to generally follow the precedent made by previous courts, even where a judge may disagree with the previous outcome.  As Justice Louis Brandeis once noted, “it is more important that the applicable rule of law be settled than that it be settled right.”[14]  While stare decisis is not inflexible (Brandeis goes on to note that courts have an obligation to reverse incorrect constitutional rulings),[15] judges generally will follow rulings from previous panels, even where they might have ruled differently.[16]

For her part, Barrett has repeatedly questioned stare decisis, and whether the doctrine should be applied as broadly as it is.  In a 2013 article, Barrett argued that a weakened form of stare decisis in constitutional cases helps promote pluralism on the Supreme Court and mitigates disagreements.[17]

Most notably, in 2003, Barrett published an article in the University of Colorado Law Review calling into question the application of stare decisis in certain cases.  The article, titled Stare Decisis and Due Process, posits that, in many instances, the application of stare decisis violates the due process rights of litigants, as it denies them the opportunity to litigate the merits of their own claim.[18]  Specifically, Barrett argues that, just as the due process clause limits the application of issue preclusion (or collateral estoppel), it should similarly limit the application of stare decisis.[19]  Barrett notes that a more flexible application of stare decisis is not only consistent with history, but would not impair the appropriate value of precedent.[20]  In other words, as Barrett notes, she suggests using precedent in a way analogous to the way it is used in civil law systems, as a “shortcut” in figuring out how to reach a decision.[21]

Barrett also questions stare decisis in the statutory context in a separate article, where she urges that the doctrine is “an ill fit in the inferior courts.”[22]

Overall Assessment

As an academic, Barrett is paid to push the envelope on legal thought and theory.  While this makes her a prolific and talented writer, it leaves little sign of how she would rule on the bench.  Barrett’s experience in litigation is fairly limited.  By her own admission, Barrett has never tried a case as first chair, never argued an appeal, and never been counsel of record in an appellate case.  This may cause critics to suggest that she is unqualified for the federal bench.

On the other hand, Barrett’s academic credentials are beyond question.  Her clerkships to two legal luminaries, Judge Silberman and Justice Scalia, are enough to put to rest any questions about her legal ability.  While she may lack litigation experience, the Seventh Circuit is full of former academics who have distinguished themselves on the bench.

A bigger question is Barrett’s commitment to following precedent that she disagrees with.  Given her repeated questioning of stare decisis, it is reasonable to expect Senators to explore her willingness to abide by it.  

Another point which may hurt Barrett is her likely status as a future Supreme Court nominee.  Barrett is young (only 45), a woman, and has impeccable academic credentials.  It remains to be seen if Democrats will attempt to handicap her ascent by attacking her appellate confirmation.  

Provided Barrett manages to allay concerns about her experience and her views on precedent, there is little reason to oppose her nomination.  In all likelihood, Barrett will avoid the fate of Myra Selby and be confirmed in due course to the Seventh Circuit.

[1] Dave Stafford, Tinder Departs 7th Circuit, The Indiana Lawyer, July 29, 2015, http://www.theindianalawyer.com/tinder-departs-7th-circuit/PARAMS/article/37799.

[2] Dave Stafford, Judge Tinder’s Retirement Plans Leaked, The Indiana Lawyer, Mar. 12, 2014, http://www.theindianalawyer.com/judge-tinders-retirement-plans-leaked/PARAMS/article/33639.  

[3] Press Release, White House Archives, President Obama Nominates Two to Serve on the United States Court of Appeals (January 12, 2016) (on file at https://obamawhitehouse.archives.gov/the-press-office).  

[4] Press Release, Office of Sen. Dan Coats, Coats Responds to President’s Nominations for Indiana Judicial Vacancies (Jan. 12, 2016) (on file at www.legistorm.com).  

[5] There are no indications of any meetings or consultations with Sen. Joe Donnelly (D-IN).

[6] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[7] Tassi Drywall Construction Co., Inc. v. Turner Jones & Assoc., P.C. et al., No. L190384 (Va. Cir. Ct.).

[8] United States v. Berger, 224 F.3d 107 (2d Cir. 2000).

[9] Id. at 111.

[10] Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001).

[11] Id.

[12] Shane Scott, Iranian Dissidents Convince U.S. to Drop Terrorist Label, N.Y. Times, Sept. 21, 2012, http://www.nytimes.com/2012/09/22/world/middleeast/iranian-opposition-group-mek-wins-removal-from-us-terrorist-list.html.

[13] Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324 (2006).

[14] Burnet v. Coronodo Oil & Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J., dissenting).

[15] Id. at 407.

[16] See, e.g., United States Inter. Revenue Serv. v. Osborne, 76 F.3d 306 (9th Cir. 1996).  

[17] Amy Coney Barrett, Symposium: Constitutional Foundation: Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1737 (2013).

[18] Amy Coney Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).

[19] See id. at 1035.

[20] Id. at 1074 (“To the extent, however, that precedent is well-established in a court of appeals, it is unlikely that many litigants would press for overruling it, even with a flexible system of stare decisis in place.”).

[21] Id. at 1069.

[22] Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317, 351 (2005).

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