The Senate voted Tuesday to confirm Notre Dame Law School Professor Amy Coney Barrett to the 7th U.S. Circuit Court of Appeals, ending an awkward confirmation process which evolved into an institutional debate on religious liberty and the Constitution’s ban on religious tests.
The 55-43 confirmation vote largely followed party lines, though three Democrats joined Republicans in supporting her confirmation, namely Sens. Tim Kaine of Virginia, Joe Manchin of West Virginia, and Joe Donnelly of Indiana.
The Barrett confirmation was something of a proxy for widespread anxieties about religious freedom and faith in public life. Barrett, a Roman Catholic, produced scholarship concerning the ethical obligations of observant Catholic judges in capital cases, and spoken generally about Catholic practice in the legal context. Where conservatives saw an accomplished academic and devout religious adherent, liberals saw a budding theocrat lacking judicial temperament.
A coalition of leftwing groups, including the Alliance for Justice, mobilized in opposition to her nomination, claiming that she had endorsed the priority of religious belief over established case law in her academic writings. Legal scholars spanning the ideological spectrum found this representation of Barrett’s writings dubious, though Democratic senators drew questions and talking points from an 11-page dossier generated by the Alliance during her confirmation hearing Sept. 6.
Sen. Dianne Feinstein of California, the ranking Democrat on the Senate Judiciary Committee, sharply questioned Barrett during September’s hearing, and later maintained that Barrett’s religious commitments, as expressed in her scholarship and related public statements, render her unable to discharge the duties of judicial office.
“When you read your speeches, the conclusion one draws is that the dogma lives loudly within you,” Feinstein said. “And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”
Those remarks spurned a cottage-industry of pro-Barrett paraphernalia among Catholic conservatives, which include mugs and tee-shirts.
Senate Minority Whip Dick Durbin of Illinois took issue with Barrett’s use of the term “orthodox Catholics” as it appears in one of her journal articles, to the extent that it brands Catholics who do not hold certain positions on capital punishment or abortion as heterodox or possibly heretical.
“Do you consider yourself an orthodox Catholic?” Durbin asked.
The U.S. Conference of Catholic Bishops roundly condemned these lines of questioning, which were first reported by The Daily Caller News Foundation.
The senator defended that line of questioning on the floor of the Senate Tuesday.
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A New York Times report following Barrett’s hearing purported to raise questions about Barrett’s affiliation with an interdenominational charismatic community called People of Praise.
“Amy Barrett happens to be a nominee who is a Catholic, and who speaks freely and openly about her faith and its importance to her,” the Leader said. “For some on the left, that seems to be a disqualifying factor for her nomination. But I would remind colleagues we do not have religious tests for office in this country.”
Speaking after her confirmation, Carrie Severino of the Judicial Crisis Network (JCN), praised Barrett’s confirmation, the first in a series scheduled for this week. JCN is a political group that organizes conservative advocacy around judicial confirmations.
“Amy Coney Barrett is one of President Trump’s many well-qualified, impressive, experienced judicial nominees who will apply the rule of law fairly,” Severino said. “I look forward to more confirmations from the Senate soon.”
Three more appeals court nominations — Michigan Supreme Court Justice Joan Larsen for the 6th Circuit, Colorado Supreme Court Justice Allison Eid for the 10th Circuit, and University of Pennsylvania Law School Professor Stephanos Bibas for the 3rd Circuit — are expected this week.
The 7th Circuit is the federal appeals court based in Chicago, Ill. Barrett will be formally invested on the court in the coming weeks.
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