If confirmed, she will make an excellent Justice
Originally published at First Things online edition, 7.4.2018.
It has become something of a ritual among legal junkies and Supreme Court watchers: After nine months of experts’ telling all who ask about this-or-that hot-button, big-ticket case that “a decision is expected in late June,” late June finally arrives, and the Justices release a raft of highly anticipated—and often highly controversial—closely divided rulings.
This year, however, even the Court’s anxiously awaited rulings on the Trump administration’s “travel ban,” the free-speech rights of crisis pregnancy centers, the constitutionality of partisan gerrymandering, and the ability of public-sector unions to require financial support from non-members faded quickly from the conversation. That is because, on June 27, after more than thirty years at the center of many of the Supreme Court’s most famous (and infamous) decisions, Justice Anthony M. Kennedy announced his retirement.
Selecting Kennedy’s replacement could turn out to be one of the current administration’s most consequential tasks. A Court that seemed likely, after Justice Antonin Scalia’s death in 2016, to shift in a “liberal” direction could well embrace a more “conservative” approach, not only to statutory and constitutional interpretation, but also with respect to its own role in our government, our policies, and our culture.
Because candidate Trump compiled and released a list of his potential nominees to the Court, and because as president he not only chose Scalia’s replacement from that list but has affirmed that Kennedy’s replacement will come from it as well, journalists and citizens alike feel confident about the names, resumes, and records of the leading contenders. One jurist who is consistently mentioned by all the mentioners is my friend and longtime colleague, Judge Amy Coney Barrett.
I met Barrett more than twenty years ago, when she came to Washington, D.C. after graduating with highest honors from Notre Dame Law School to clerk for one of the country’s most distinguished federal judges, Laurence Silberman of the United States Court of Appeals for the District of Columbia Circuit. During the 1998-99 term of the Supreme Court, Barrett and my wife, Nicole Stelle Garnett, clerked together—the former for Scalia and the latter for Justice Clarence Thomas. (As I heard several times from other Justices’ clerks that year, Barrett was widely recognized as—after Garnett, of course!—one of the most talented and intelligent clerks in the building.) After her clerkship, I helped recruit Barrett to the small but heavy-hitting Washington, D.C. law firm where I worked, and a few years later I was delighted to welcome her as a faculty colleague at my adopted home and her alma mater.
Judge Barrett is my colleague, friend, and neighbor. She is the godmother to one of my daughters, and we have children who have been friends since birth. I know her scholarly and professional work well; I have observed her speak and teach; I am familiar with her generosity in her academic, local, and parish communities. Barrett is careful, conscientious, civil, and charitable, and blessed with an unusual combination of decency, grace under pressure, kindness, rigor, and judgment. If nominated and confirmed, she would be an outstanding justice, committed to the rule of law and to the faithful performance of her judicial duty.
As First Things readers almost certainly know, now-Judge Barrett became something of a celebrity, even a symbol, during her confirmation hearings last year before the Senate Judiciary Committee. A mother of seven who is no doubt used to managing unruly behavior, she impressed all honest observers with her patient and clarifying handling of several senators’ confused and clumsy questions about her academic writings. One focus of attention was an article she had co-authored during her student years on the moral obligations of Catholic judges in death-penalty cases. Barrett deftly fielded aggressive, staffer-and-activist-supplied questions that distorted her work. And when several senators—most notably Dianne Feinstein—descended into insinuations about Barrett’s Catholic commitments and the threat they allegedly posed to her judging, her calm and her courage impressed and inspired many.
But Judge Amy Coney Barrett is not a symbol or a meme. She is not merely the nominee to whom Senator Feinstein, Yoda-like, said, “The dogma lives loudly within you, and that’s a concern.” Her Catholic faith is deep and animating but, contrary to what was insinuated in a suspiciously timed news report, her participation in the ecumenical Christian community People of Praise is not so different from the lived religious experiences of millions of Americans. As is detailed in powerful supporting letters from the entire Notre Dame Law School faculty, from every living clerk who worked with her at the Supreme Court, from an ideologically and methodologically diverse array of prominent legal scholars, and from hundreds of her former students, she is a respected scholar, an award-winning teacher, a razor-sharp lawyer, a disciplined and diligent jurist, and a person of the highest character. And, if she were nominated and confirmed, she would be not just an excellent, but a great, Justice.
Richard W. Garnett is professor of law and concurrent professor of political science at the University of Notre Dame. He is also a member of the Rover’s faculty advisory board. He can be reached at email@example.com.