Reservations on Judge Amy Coney Barrett’s Qualifications for Supreme Court
While the New York City Bar Association finds that Judge Amy Coney Barrett meets several of its evaluation criteria, due to “unique concerns” the City Bar has found Judge Barrett to be “qualified to serve as a Supreme Court Justice, with reservations.”
The City Bar finds Judge Barrett to be “an extremely talented lawyer and judicial writer” who “unquestionably” meets the first three of the City Bar’s evaluation criteria: (1) exceptional legal ability; (2) extensive experience and knowledge of the law; and (3) outstanding intellectual and analytical talents.
However, “we have significant concerns over the remaining evaluative criteria,” the City Bar states in its report on Judge Barrett. Those criteria are (4) maturity of judgment; (5) unquestionable integrity and independence; (6) a temperament reflecting a willingness to search for a fair resolution of each case before the court; (7) a sympathetic understanding of the Court’s role under the Constitution in the protection of the personal rights of individuals; and (8) an appreciation for the historic role of the Supreme Court as the final arbiter of the meaning of the United States Constitution, including a sensitivity to the respective powers and reciprocal responsibilities of the Congress and Executive.
“Judge Barrett’s refusal during her Senate confirmation hearing to answer whether she believed climate change was happening, responding instead that she would not address the topic because it was ‘politically controversial’ and a ‘very contentious matter of public debate,’ raises concerns as to whether she meets criteria 4 through 6,” states the report. “Judge Barrett’s rejection of settled science calls into question not only whether she has ‘maturity of judgment,’ but also whether she has ‘unquestionable integrity and independence’ and lacks the ‘temperament … to search for a fair resolution of each case….’ Judge Barrett’s rejection of accepted science on the grounds that it was controversial also raises concerns that she is not independent from the Executive Branch that nominated her and held and aggressively advocated the same views.”
Further, the City Bar writes that while Judge Barrett has shown respect for precedent in her time on the Seventh Circuit, “the entirety of her record leaves room to doubt whether she meets criterion 7”: a sympathetic understanding of the Supreme Court’s unique role in the protection of the personal rights of individuals. “A decade of Judge Barrett’s scholarly writings suggests an eagerness to overrule long-settled and revered Supreme Court precedents guaranteeing individual rights in Loving v. Virginia, Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, and Obergefell v Hodges, the report states. “Then-Professor Barrett’s refusal to include, at a minimum, Loving, Griswold, and Roe in her list of super precedents—i.e., Supreme Court decisions that ‘no serious person would propose to undo even if they are wrong’—was a warning that those individual-rights protections were at risk. Her deflection that super precedents were not at risk because the issues presented in them were procedurally unlikely to make it back to the Court was hardly reassuring.”
The City Bar finds Judge Barrett’s self-described originalist judicial philosophy, as demonstrated in her scholarly writings, Seventh Circuit opinions and Senate testimony, raises questions as to whether she meets criterion 6: a temperament reflecting a willingness to search for a fair resolution of each case. Judge Barrett’s “willingness to question the correctness of even the Supreme Court’s oldest and most venerated decisions protecting individual rights calls into question whether she would decide constitutional questions solely by employing her originalist philosophy to the exclusion of an individualized search for a fair resolution of each case” the City Bar writes.
Finally, the City Bar questions whether Judge Barrett meets criterion 8: an appreciation for the historic role of the Supreme Court as the final arbiter of the meaning of the United States Constitution, including a sensitivity to the respective powers and reciprocal responsibilities of the Congress and Executive. In her Senate testimony, “Judge Barrett refused to take any stand or answer any question that might reflect a disagreement with President Trump,” the City Bar writes, citing among other instances that “Judge Barrett refused to answer whether voter intimidation was a crime, whether a president can unilaterally delay an election, and whether a president could pardon himself.”
The City Bar has been evaluating judicial candidates for approximately 150 years in a non-partisan manner based on the nominees’ competence and merit. Although the City Bar had evaluated several Supreme Court candidates over the course of its history, in 1987, it determined to evaluate every candidate nominated to the Supreme Court. The City Bar uses a three-tier evaluation system:
“Highly Qualified.” The nominee is qualified, to an exceptionally high degree, such that the nominee is likely to be an outstanding Justice of the United States Supreme Court. This rating should be regarded as an exception, and not the norm, for United States Supreme Court nominees.
“Qualified.” The nominee possesses the legal ability, experience, knowledge of the law, intellectual and analytical skills, maturity of judgment, common sense, sensitivity, honesty, integrity, independence, and temperament appropriate to be a Justice of the United States Supreme Court. The nominee also respects precedent, the independence of the judiciary from the other branches of government, and individual rights and liberties.
“Not Qualified.” The nominee fails to meet one or more of the qualifications above.
For its evaluation, the City Bar gathered and analyzed Judge Barrett’s written opinions from her nearly three years serving on the Seventh Circuit; her speeches and articles; her testimony from her 2017 confirmation hearings concerning her nomination to the Seventh Circuit; the confirmation hearings on her nomination to become a Supreme Court Justice taking place during the week of October 12, 2020; the Senate questionnaire she completed for this nomination; interviews with practitioners who appeared before her during her tenure on the Seventh Circuit; and comments received from the City Bar’s members and committees.
“Despite attributes that would undoubtedly serve Judge Barrett well on the Court, including her intellect, knowledge, experience, work ethic, and collegiality, Judge Barrett’s legal scholarship, Seventh Circuit opinions, and testimony at her Senate confirmation hearings do not, as discussed herein, foreclose uncertainty as to whether Judge Barrett meets evaluation criteria 4 through 8. While Judge Barrett’s record does not dispel doubt, these stated concerns do not demonstrate that she will not rise to the level of these evaluative goals,” the City Bar writes.
Read the City Bar’s evaluation of Judge Amy Coney Barrett here: https://bit.ly/3jn2p4E
About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has 25,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org
