On The 'Predilections' of Judge Amy Coney Barrett

Meaning of predilection (countable and uncountable, plural predilections)

1. Condition of favoring or liking; tendency towards; proclivity; predisposition.

-Wiktionary

I want to focus here on one particular line of questioning during the course of Day 3 of the US Senate Confirmation Hearings for Trump nominee to SCOTUS Judge Amy Coney Barrett. In doing so, I wish to illuminate how the glossing over of unconscious bias can unfold.

Senator Mike Lee's Questions for Judge Barrett C-SPAN video: at 2:12:29

https://youtu.be/LQsEny8zOmw

Non-lawyers might find it harder to identify the "fine print" of the confident and seemingly-reasonable exposition by Judge Barrett of fine, uncontroversial and settled legal principles elicited by her Republican questioners. They can lull one into a false sense of security as they sound so impeccably irreproachable and normative. Smoothly facilitated by a partisan interviewer, they can come across as anodyne, reasonable and laudable. But the devil is in the details -the layers beneath; the different emphases and weight given to certain values over others; the subtle focus on procedural preferences that might nudge towards the result one wants.

The Republican senator from Utah Mike Lee asked the Judge about religious liberty and religious persecution cases, in particular. He caught my attention when he asked her about ministerial exceptions: the discretion to hire teachers who are ministers; the decision turns on who is a minister (Grussgott and Our Lady of Guadalupe cases).

Her reply that it was a "multi-factor test where no one factor is determinative" sounded reasonable enough. Her emphasis where there are several limbs to any test is what interests me. She made reference in passing to elements that might restrict her and gave attention to those that might empower her to obtain the result she wants.

Barrett: "We have to be careful of the Establishment clause [Me: token acknowledgement], BUT religious institutions cannot be discriminated against or excluded from public programs simply because they are religious."

The illustrative case used, Espinoza vs Montana Department of Revenue (reinforcing the Trinity Lutheran case), is one clearly dear to Judge Barrett's heart given her membership of the People of Praise Christian charismatic community.

Holding: The application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the free exercise clause.

https://www.scotusblog.com/case-files/cases/espinoza-v-montana-department-of-revenue/

When confirmed 'Justice' Barrett will tip the balance of 5:4.

See: In 5-4 decision [Espinoza], Supreme Court rules states cannot ban public funding for religious schools.

The ruling was written by Chief Justice John Roberts, who sided with the conservative justices.

https://www.nbcnews.com/politics/supreme-court/5-4-decision-supreme-court-rules-states-cannot-ban-public-n1231389

Note: RBG dissented in Espinoza.

Senator Lee: The Congressional Research Service (CRS) could not find a pattern in [Judge Barrett's] decisions as a Judge in the 7th Circuit of the US Court of Appeals:

"evince case by case consideration of the relevant law and facts without any clear overarching trend either expanding or narrowing 4th Amendment protections".

But it's what Senator Lee goes on to say that is most interesting about that, as it hints at the biggest worry for Republicans: the prospect of a liberal activist Supreme Court that might threaten conservative and evangelical Christian positions - or Christian charismatic communities such as People of Praise - her own group https://peopleofpraise.org/about/who-we-are/.

[Discrimination against gays is apparently OK however: https://www.theguardian.com/us-news/2020/oct/14/amy-coney-barrett-people-of-praise-expel-members-gay-sex ]

Senator Lee: .....Exactly what I would expect to see from a textualist originalist....a commitment to following the law as written rather than on the basis of some external objective.

A number of cases were then paraded that were designed to show her lack of bias and willingness to make findings against her own views.

However, her focus was always on SCOTUS not disrupting state law unless it must follow "clearly established" Supreme Court law." (Schmitt v Foster, a decision driven by federalism and the instruction that federal courts give deference to state courts").

She is looking for opportunities. The words "clearly established" imply a preference (predilection?) for state laws. The nuisance-value of SCOTUS overturning conservative brethren judges in southern states is a big worry for evangelicals and fringe religious groups. Sure, they have protection under the Constitution. However, they are looking to withdraw protections for and rights of others (ACA, and Roe v Wade to name the most notorious and disliked by them).

Abortion:

This all drives us (and them) towards Roe v Wade being driven back to the states (and the South's restrictions) as an overriding goal as it is an ultimate issue for Deep South conservatives and religious zealots.

Senator Lee went on to extol the virtues of Judge Barrett's decisions and opinions on the 7th Circuit as "following the law as written - a textualist originalist" [meaning: not allowing the law to evolve in meaning].

Where there is a conflict between the rule of law and personal convictions, Barrett affirmed the principle that it was the rule of law that must be the focus. An example given was her joining of the majority in Price v Chicago affirming the legality of the "buffer zone law" ( a case where protesters were exercising their First Amendment rights to protest outside abortion clinics) because there was an existing binding precedent (Hill vs Colorado).

Sen. Lee: "You followed that case without following any personal predilections that might otherwise have got at you...."

Oops, did Senator Lee just admit that ACB has predilections? I think he did and she does. The evidence is clear in her decisions on the Court of Appeals to date and in her careful evasive refusal to give any hints at all to her Democrat questioners about her personal views or positions under the guise of maintaining her judicial 'virginity'; whereas she talked much more freely to Republican questioners, obviously far more comfortable with their views, thus exposing the real thinking patterns beneath her flat and even-toned sparring with those whom she knows to be adversaries.

Definition of predilection (Merriam-Webster)

https://www.merriam-webster.com/dictionary/predilection

an established preference for something

a predilection for spicy food

… a wonderfully spunky heroine with a smart mouth, a bad attitude and a predilection for trouble. [=a tendency to get into trouble]

— Publishers Weekly

Barrett is clearly looking for gaps in the law where she can:-

1. Drive cases back to the states;
2. Categorise cases she doesn't like (and wants overturned) as not being "superprecedents" (as she has already categorised Roe v Wade); or
3. Categorise cases she doesn't like (and wants overturned) as not having an existing binding precedent.

As Melissa Gira Grant wrote for The New Republic on October 14, 2020:

Amy Coney Barrett’s Gentle Deceptions

The Supreme Court nominee would have us believe she’s just a vessel for the law, but her rise to conservative power tells the real story.

https://newrepublic.com/article/159779/amy-coney-barrett-femininity-roe-impartial?utm_source=newsletter&utm_medium=email&utm_campaign=tnr_daily

"That is the big conceit of the hearings, wrapped in paper-thin layers of motherhood and faith. It is only more galling because you can clearly find evidence of Barrett’s beliefs. She was a member of a faculty anti-choice group at Notre Dame. She signed an advertisement stating that the legacy of Roe v. Wade was “barbaric.” Yet on Tuesday, Barrett told a struggling Senator Dianne Feinstein that she has been “forthright” about her views on abortion. Feinstein even fed her the “forthright” line. Her disclosure questionnaire for the Senate may not have stated that she had an opinion one way or another on Roe. But that’s only accurate because she did not disclose the ad, placed by a group that wants to criminalize abortion providers, until The Guardian disclosed it for her."

She concludes: "It may not matter how successful Barrett’s performance of nonthreatening, perfected femininity is, given how much precedent Republicans are willing to blow past to confirm her nomination. And even if this was a fair fight, convincing anyone that Barrett is who she presents herself to be isn’t the intention. It’s meant to lend others around her plausible deniability, to claim she doesn’t have an agenda and, by extension, neither do they."

This was a very interesting and revealing interview.

Pamela Williamson ? All Rights Reserved

Sky Canopy Consulting Daily Blog: https://skycanopy.wordpress.com/blog/

Pamela Williamson LL.B MCTS is a New Zealand consultant and founder of Sky Canopy Consulting, a former lawyer, executive coach and psychotherapist; based in Auckland, she is now a writer and researcher on strategic narrative, analyst, synthesiser and satirist, with a Masters in Conflict and Terrorism Studies from the University of Auckland.

?Image: Venezia Commedia Del 'Arte Colombina Mask