[Congressional Record Volume 163, Number 175 (Monday, October 30, 2017)]
[Senate]
[Pages S6861-S6862]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. McCONNELL. Mr. President, for the past 8 years, we had a 
President who selected nominees for our Nation's judiciary based upon 
what became known as the ``empathy standard,'' an ideological litmus 
test designed to find judicial nominees who would favor certain groups 
or individuals over others. It is a great standard if you are the party 
in a case for whom the judge has empathy. It is not so great if you are 
the other person. Not only does this standard deny every litigant a 
fair shake, but it also disregards our Nation's bedrock legal tradition 
of dispensing equal justice under the law.
  President Trump, on the other hand, selected nominees who would help 
ensure that the judiciary is true to its role in our democracy. Later 
today, the Senate will vote to confirm one of those nominees, Trevor 
McFadden, as a district court judge for the District of Columbia. His 
nomination was approved by the Judiciary Committee without a single 
vote in opposition. Democrats needlessly delayed his vote on the floor 
anyway.
  We have seen many delay tactics from them already this year. We have 
pushed through every time. We are going to push through again today. We 
are going to confirm the impressive judicial nominee before us, and we 
are going to confirm more judicial nominees in the coming days as well.
  Our effort to confirm qualified judicial nominees this year would not 
be possible without the tireless work and effective leadership of our 
Judiciary Committee chairman, Chuck Grassley. To build on the excellent 
work of his committee, I filed cloture last week on four well-qualified 
circuit court nominees. These nominees understand that their role as a 
judge is to put aside their personal preferences and instead decide 
cases based on what the law says. We will confirm all of them this 
week, no matter how long that takes.
  The first of these four circuit court nominees that we will confirm 
this week is Professor Amy Barrett, who was nominated by the President 
to serve on the U.S. Court of Appeals for the Seventh Circuit. A mother 
of seven, Professor Barrett began her

[[Page S6862]]

legal career by clerking for Judge Laurence Silberman of the DC Circuit 
and then for Justice Antonin Scalia. These prestigious clerkships gave 
her the opportunity to work closely with two giants of the legal field. 
Today, she is a respected professor at the University of Notre Dame, 
where, by the way, she was honored as Distinguished Professor of the 
Year twice. Professor Barrett will bring a wealth of knowledge to the 
bench.
  Professor Barrett happens to be a Catholic. Her faith is important to 
her. She has spoken freely about it and its impact on her life. But she 
also understands the role of a judge, which is not to let personal 
beliefs dictate how cases are decided.
  Unbelievably, some on the political left, including some of our 
Democratic colleagues, are criticizing her because as a law student she 
cowrote a law journal article that argued just that. Her coauthor of 
the article, John Garvey, is now the president of Catholic University. 
He recently wrote the following:

       Amy Barrett, a law professor at Notre Dame, was grilled on 
     Wednesday by Democrats on the Senate Judiciary Committee 
     about an article she and I wrote together in 1998 when I was 
     a law professor and she was my student. In that article we 
     argued that the death penalty was immoral, as the Catholic 
     Church teaches (in common with Quakers, Episcopalians, 
     Presbyterians, Methodists, and the 38 member communions in 
     the National Council of Churches). We went on to say that a 
     Catholic judge who held that view might, in rare cases, have 
     to recuse herself under . . . [the] federal statute that asks 
     a federal judge to step aside when she has conscientious 
     scruples that prevent her from deciding a case in conformity 
     with the facts and the law.

  President Garvey went on to write:

       Perhaps the Alliance for Justice, which has mounted a 
     campaign to discredit Professor Barrett, didn't get that far 
     in reading the article. Its website says this: ``Stunningly, 
     Barrett has asserted that judges should not follow the law or 
     the Constitution when it conflicts with their personal 
     religious beliefs. In fact, [this group claimed] Barrett has 
     said that judges should be free to put their personal views 
     ahead of their judicial oath to faithfully follow the law.''

  President Garvey noted, however:

       Barrett (and I) said no such thing--

  No such thing--

       We said precisely the opposite.

  This opposition to Professor Barrett is so upside down that it leaves 
people like President Garvey wondering whether there is something else 
going on here. President Garvey concluded:

       The case against Prof. Barrett is so flimsy that you have 
     to wonder whether there isn't some other, unspoken, cause for 
     their objection.

  The president of Notre Dame also weighed in about these criticisms of 
Professor Barrett. Here is some of what he said in his letter to the 
ranking member of the Judiciary Committee:

       Your concern, as you expressed it, is that ``dogma lives 
     loudly in [Professor Barrett], and that is a concern when you 
     come to big issues that large numbers of people have fought 
     for years in this country.''
       I am one in whose heart ``dogma lives loudly,'' as it has 
     for centuries in the lives of many Americans, some of whom 
     have given their lives in service to this nation. . . . It is 
     chilling to hear from a United States Senator that this might 
     now disqualify someone from service as a federal judge. I ask 
     you and your colleagues to respect those in whom ``dogma 
     lives loudly''--which is a condition we call faith.

  A condition we call faith.

       For the attempt to live such faith while one upholds the 
     law should command respect, not evoke concern.
       Professor Barrett has made it clear that she would ``follow 
     unflinchingly'' all legal precedent and, in rare cases in 
     which her conscience would not allow her to do so, she would 
     recuse herself.

  I will say that again:

     . . . in rare cases in which her conscience would not allow 
     her to do so, she would recuse herself.
       I can assure you that she is a person of integrity who acts 
     in accord with the principles she articulates.

  Let me remind colleagues that article VI of the Constitution provides 
that ``no religious test shall ever be required as a qualification to 
any office.'' That is the U.S. Constitution. According to the Founders, 
this was done to ensure that ``the people may employ any wise or good 
citizen in the execution of the various duties of the government.''
  Professor Barrett of Notre Dame is just such a wise and good person, 
and when the Senate confirms her to the Seventh Circuit, our judiciary 
and our Nation will be better off.
  I strongly support her nomination and would urge my colleagues to do 
the same.

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