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26 October 2020

New York City Bar voices 'significant concerns' about Barrett

City Bar questions Supreme Court Justice nominee's judgement, integrity and temperament 

By Ben Edwards

Protestors gather outside the Supreme Court to protest the nomination of Amy Coney Barrett. Stephanie Kenner; Shutterstock

The New York City Bar Association has expressed reservations about Supreme Court Justice nominee Judge Amy Coney Barrett’s judgement, integrity and temperament ahead of her expected confirmation today (26 October).

The City Bar said that while Barrett has exceptional legal ability, extensive knowledge of the law and outstanding intellectual talent, it has ‘significant concerns’ about other criteria it uses to evaluate the suitability of judicial candidates.

The evaluation, which was published on Friday (23 October), is in contrast to the unqualified approval of the American Bar Association (ABA), which gave Barrett its highest rating in evidence before the Supreme Court nomination hearing earlier this month. The Senate is expected to confirm Barrett's nomination today.

While the ABA was unequivocal in its endorsement of Barrett, with its testimony highlighting her ‘staggering academic mind’, the City Bar questioned her maturity of judgment and her integrity and independence, citing her refusal to say whether she believes in climate change as an example of this.

It also said that while Barrett has shown respect for precedent during her time on the Seventh Circuit appeals court, her record leaves some uncertainty about her understanding of the Supreme Court’s role under the constitution where it relates to the personal rights of individuals. The City Bar noted that Barrett’s scholarly writings suggest an 'eagerness to overrule long-settled Supreme Court precedents guaranteeing individual rights', including Roe v. Wade. 

Those writings, her Seventh Circuit opinions and Senate testimony – as well as being a self-described ‘originalist’ – also cast doubts about her temperament to search for a fair resolution of cases that come before her, the City Bar said. 

It added: “[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 individualised search for a fair resolution of each case.”

The City Bar also said it has concerns about whether Barrett meets its criteria for appreciating the historic role of the Supreme Court as the final arbiter of the meaning of the US constitution, including a sensitivity to the powers and responsibilities of the different branches of government.

It said: “Judge Barrett refused to take any stand or answer any question that might reflect a disagreement with President Trump… [and] 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 concluded that Barrett is qualified to serve as a Supreme Court judge but with reservations, therefore failing to secure its highest rating. 

In his testimony to the nomination hearing on 15 October Randall Noel, chairman of the ABA’s Standing Committee on the Federal Judiciary, said its highest rating of ‘well qualified’ was based on “interviews with judges, lawyers, law professors and community representatives from across the United States”.

He said those consulted had described her variously as “an intellectual giant” and a “brilliant writer and thinker” with a “calm, scholarly temperament” .

“In conclusion, Judge Barrett meets the highest standards of integrity, professional competence, and judicial temperament,” he said.

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