Sen. Dick Durbin, D-Ill., and Judge Amy Coney Barrett talked for about 25 minutes last week in advance of the kickoff Monday of her Supreme Court confirmation hearing. Near the end of their phone call, Durbin told me, he wanted to address a lingering issue.
Barrett will be appearing before the Senate Judiciary Committee — Durbin is a member of the panel — for the second time.
During her 2017 confirmation hearing for a seat on the Chicago-based 7th Circuit Court of Appeals, Durbin and Sen. Dianne Feinstein, D-Calif., were criticized for questions relating to her Catholic faith.
Feinstein famously said to Barrett, “The dogma lives loudly within you.” A quote from that hearing following Durbin around is “Do you consider yourself an orthodox Catholic?”
His question didn’t come out of the blue. Here’s the context.
Barrett used the term “orthodox Catholic” in an article she wrote while a law student about Catholic judges, and that article had already been mentioned by the time it was Durbin’s turn to grill her.
Sen. Chuck Grassley, R-Iowa, then the chair of the committee and the leadoff questioner, brought up Barrett’s religion at the very start of the hearing, pegged to the article she wrote while a third–year law student at Notre Dame.
“You have been outspoken about your role and your Catholic faith and what that plays in your life. And you’ve thought and written about the role your faith should play in your profession. So I’d like to specifically discuss a law review article you wrote during law school entitled, quote, ‘Catholic Judges in Capital Cases,’ end of quote,” Grassley said.
“In this article, you seem to suggest that Catholic judges are, quote, ‘morally precluded from enforcing the death penalty,’ end quote. However, you also wrote that, quote, ‘Judges cannot and should not try to align our legal system with the church’s moral teachings whenever the two diverge.’ “
When “is it proper,” Grassley asked her, “for a judge to put their religious views above applying the law?”
Replied Barrett to Grassley, “Let me start with your very last question and say never. 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. “
Other senators — now-retired Sen. Orrin Hatch, R-Utah, Sen. Ted Cruz, R-Texas and Sen. Mazie Hirono, D-Hawaii — also asked about her faith and that article, though Durbin and Feinstein’s quotes are the ones that remain in the spotlight.
When I asked Durbin during our Friday interview if, in his conversation with Barrett, anything came up about their common Catholic faith, this was his reply:
“I said to her at the end of the conversation, that the article she wrote that raised so many questions in an earlier hearing, she had written as a law student...
“...And I just said to her, five [other] senators asked her about that article; only two of them had been highlighted afterwards, myself and Sen. Feinstein.
“So I said, ‘There were questions we had about that article, and what it meant.’ And I said to her, ‘I’m Catholic and my questions of you, I hope you understand, did not evidence any disrespect for your religious belief. I respect, whatever it may be.
“‘And I realize the Constitution makes it clear, there is no religious test for public office. And I just want to clear the air: I have no, I meant no disrespect to your religious beliefs.’ “
I asked Durbin what Barrett said in response.
Said Durbin, “She said, ‘Thank you.”’
DEMOCRATIC HEARING STRATEGIES: Sen. Kamala Harris, D-Calif., Joe Biden’s running mate, is on the panel and the former prosecutor’s questioning of Barrett — in style and substance — will be calculated to do no harm to the Biden campaign.
Republicans control the Senate and the Judiciary Committee and likely have the votes to confirm Barrett before the Nov. 3 election. President Donald Trump and Senate Majority Leader Mitch McConnell, R-Ky., are pushing for a pre-election Senate vote.
The Monday hearing will be devoted to opening statements. Senators will get to question Barrett on Tuesday and Wednesday. Outside witnesses, picked by GOP members and Democrats on the committee, will testify on Thursday.
Democrats will avoid questions about Barrett’s faith.
Instead, Democrats will highlight a Texas case the Supreme Court will hear on Nov. 10 that could overturn the landmark Affordable Care Act. The Trump administration has refused to defend the law.
A key Obamacare provision is coverage for people with pre-existing conditions. Democrats believe that Barrett’s track record suggests she would join with justices who would invalidate the law, and they will focus on that in their first round of questions.
Even if Democrats don’t have the votes to block Barrett’s confirmation, jeopardizing pre-existing condition coverage — especially during the COVID-19 pandemic — is a potent presidential election issue that plays against Trump and for Biden.
“I think you’re going to hear every Democratic senator raise that, because it really is looming over this nomination,” Durbin told me.
Health insurance was the first thing Durbin asked Barrett about when they talked last Wednesday.
She told him about health challenges some of her children faced.
Durbin said he asked her if she had health insurance, and, “She said yes. And I said, ‘Do you know of anybody who faced something like that and didn’t have health insurance?’ And she didn’t.” He said he pressed that point “to try to see if she knew someone who had been through that and what it does to you.”
BARRETT’S OPENING STATEMENT: Released on Sunday, Barrett, in her statement will mention all seven children, including Benjamin, who has Down syndrome, and John Peter, a native of Haiti, who, she will say, was shocked “when he got off the plane in wintertime Chicago.”
The South Bend, Ind., resident will also pay tribute to the late Justice Antonin Scalia, for whom she clerked.
“His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were. Sometimes that approach meant reaching results that he did not like.”
Scalia taught her to be “fearless of criticism.”
She added, “I might bring a few new perspectives to the bench,” noting that if confirmed, she would be the first mother of school-age children to be a Supreme Court justice.