Senate OKs 7th Circuit Nominee After Fight Over Faith And Jurisprudence

WASHINGTON (CN) – The Senate narrowly confirmed the nomination of a Notre Dame law professor to the Seventh Circuit on Tuesday afternoon, the second Trump nominee lawmakers have confirmed in as many days.

After clearing the Senate in a 55-43 vote, Amy Coney Barrett will take her seat on the Seventh Circuit after spending the past 15 years in academia. Barrett spent most of that time at Notre Dame Law School, but also spent a year at George Washington University Law School after leaving private practice.

Sens. Joe Donnelly, D-Ind., Tim Kaine, D-Va., and Joe Manchin, D-W.Va., were the only Democrats to vote for Barrett. Senate Majority Leader Mitch McConnell, R-Ky., plans to have the Senate confirm three more judges before the week is out.

A former clerk of the late conservative icon Supreme Court Justice Antonin Scalia, Barrett worked at the Washington D.C. law firm Miller, Cassidy, Larroca & Lewin and remained on as an associate after it merged with Baker Botts in 2001.

A member of the conservative legal advocacy group the Federalist Society, Barrett was among the first of a large group of nominees Trump sent to the Senate after taking office.

Barrett’s extensive writings from her time as a law professor proved a trove for Democrats attempting to sink her nomination by portraying her as extremely conservative. During the confirmation process, Sen. Dianne Feinstein, D-Calif., grilled her on essays she wrote that seemed to argue judges should have greater leeway in deciding not to follow precedent of higher courts.

Barrett insisted Feinstein’s interpretation of her essays was not accurate,  and promised she would be mindful of the difference between what a judge does and what a professor does if her nomination were confirmed.

“My role as an academic was to stand outside of the system and to provoke students of the law to think hard about how the system works,” Barrett wrote to Feinstein in responses to questions submitted after her confirmation hearing. “Sometimes that involves critiques of the system. A judge, by contrast, operates within the system and her duty is to apply the law as it exists.”

Democrats also pressed the professor about a 1998 essay she wrote while in law school dealing with how Catholic judges should handle death penalty cases that violate their conscience.

In the essay, Barrett and her co-author, a professor, argued Catholic judges might have to recuse themselves in certain circumstances involving the death penalty.

She told Sen. Mazie Hirono, D-Hawaii, that she would likely recuse herself from capital cases if she were up for a spot on a trial court, but that she would have no such pressure on an appeals court that only has to affirm or overturn a sentence.

At her nomination hearing in September, Democrats repeatedly questioned Barrett about the interplay between her Catholic faith and the job of a judge. Some of the questions raised the ire of conservatives and religious freedom groups. Once such instance occurred after Sen. Dick Durbin, D-Ill., asked Barrett if she considered herself “an orthodox Catholic” and when Feinstein told Barrett “the dogma lives loudly within you.”

In written questions presented to Barrett after her hearing, Feinstein also asked the professor what she meant when she wrote that judges should not “try to align” the legal system with the church, but that they should “conform their own behavior to the church’s standard.”

Barrett insisted this comment meant nothing more than suggesting judges live their private lives as good examples of their faith.

“That passage makes clear the distinction between a judge’s official duty of resolving cases, in which the judge’s personal moral code can have no role and the judge’s personal life, in which it should,” Barrett wrote. “The sentence you quote indicates that judges should live their own lives, as people, consistently with their own moral code. I would think that is something all judges – indeed, all people – seek to do.”

The three Democrats who voted for Barrett all identified as Catholic in a report by the Pew Research Center in 2015.

Republicans quickly attempted to turn Barrett’s nomination into a referendum on religious freedom, though Feinstein insisted that she was simply trying to get a complete picture of how a professor with no judicial record would behave on the bench.

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