clock menu more-arrow no yes

Filed under:

Federal appeals judge in Chicago may be front-runner for Supreme Court

It’s not the first time Amy Coney Barrett seemed on the cusp of ascending to the high court. She was among those considered to be favored by conservatives after Justice Anthony Kennedy announced his retirement in 2018. 

This 2017 photo provided by the University of Notre Dame Law School in South Bend, Ind., shows Judge Amy Coney Barrett.
This 2017 photo provided by the University of Notre Dame Law School in South Bend, Ind., shows Judge Amy Coney Barrett.
AP Photos

A federal appeals court judge sitting in Chicago appeared to skyrocket to front-runner status Saturday as President Donald Trump considered who he will nominate to replace the late Supreme Court Justice Ruth Bader Ginsburg.

It’s not the first time Amy Coney Barrett seemed on the cusp of ascending to the high court. The one-time law clerk for the late Justice Antonin Scalia was among those considered to be favored by conservatives after Justice Anthony Kennedy announced his retirement in 2018.

But multiple news outlets reported Saturday that Barrett was among those being seriously considered by Trump after Ginsburg’s death Friday at age 87. Republicans have vowed to move forward with a nomination. Democrats said Republicans should follow the precedent they set in 2016 by not considering a Supreme Court choice in the run-up to an election.

U.S. District Judge Martha Pacold is another Chicago-based judge that has previously been mentioned by Trump for a possible Supreme Court nomination.

Barrett spent most of her career as a law professor at Notre Dame Law School in Indiana, home state of Vice President Mike Pence. She graduated Rhodes College in 1994 and Notre Dame Law School in 1997. She worked for a week on Bush v. Gore, doing research and briefing for a firm that represented George W. Bush.

Her judicial career began in May 2017, when Trump picked her for the 7th U.S. Circuit Court of Appeals in Chicago, where she now sits. The Senate confirmed her for the position in October 2017. Now in her late 40s, she could remain on the Supreme Court for decades if confirmed.

Earlier this month Barrett joined two of her colleagues, Judges Diane Wood and Amy St. Eve, in shooting down a challenge brought by Illinois’ Republican Party against Gov. J.B. Pritzker’s COVID-19 orders. The GOP challenged an exception Pritzker carved into his orders for the exercise of religion, insisting it was unconstitutional for Pritzker to not offer the same exception to other types of speech.

Barrett and St. Eve signed on to an opinion by Wood that batted down the Republicans’ arguments. It said “there can be no doubt that the First Amendment singles out the free exercise of religion for special treatment.” It also rejected an argument that Pritzker, through his actions, had carved out an additional exception for Black Lives Matter protesters.

Though Barrett’s confirmation to the 7th Circuit generated some controversy, she managed to attract the votes of some Democratic senators.

Among those critical of Barrett was the progressive Alliance for Justice, which called her “a judicial nominee the likes of which we have rarely seen: a person who believes and has stated that judges can and should put their personal beliefs ahead of the law and Constitution when carrying out their duties.”

When asked during her confirmation hearing how judges should weigh their faith against the law, Barrett said, “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.”

In the most memorable moment of her confirmation, Sen. Dianne Feinstein, D-California, told Barrett, a Catholic, that, “dogma lives loudly within you.”

A Notre Dame University publication in 2013 cited Barrett’s belief that “life begins at conception.” That same article also quotes Barrett saying it is “very unlikely” the court would ever overturn Roe v. Wade’s core protection of abortion rights.

In a 2013 Texas Law Review article, Barrett wrote about “superprecedents,” — “cases that no justice would overrule.” Barrett’s list of examples “on most hit lists” included Marbury v. Madison and Brown v. Board of Education, but not Roe v. Wade.

In a footnote, she explained that scholars “do not put Roe on the superprecedent list because the public controversy about Roe has never abated.”

A 1998 Marquette Law Review article Barrett co-authored argued that “Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty.” Still, the article said a judge’s mere identification as a Catholic is not sufficient for recusal.

Feinstein took heavy criticism for her “dogma” comment from people who took the senator’s remark as evidence of anti-Catholic bigotry.

When the Senate finally voted to confirm Barrett, three Democratic senators voted in her favor: Joe Donnelly of Indiana, Tim Kaine of Virginia and Joe Manchin of West Virginia.

Contributing: AP