[Congressional Record Volume 163, Number 176 (Tuesday, October 31, 2017)]
[Senate]
[Pages S6912-S6913]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                      Confirmation of Amy Barrett

  Just a short time ago, the Senate narrowly voted to confirm a nominee 
who would apply her own ideology to the decisions she makes rather than 
the law or precedent, and this nominee is Amy Coney Barrett.
  As a professor at the University of Notre Dame Law School, Ms. 
Barrett's

[[Page S6913]]

scholarly writings reveal a nominee who questions the need to follow 
precedent and who outlines specific conditions under which a judge does 
not have an obligation to follow precedent.
  In a Texas Law Review article entitled ``Precedent and 
Jurisprudential Disagreement'' she wrote: ``I tend to agree with those 
who say that a justice's duty is to the Constitution and that it is 
thus more legitimate for her to enforce her best understanding of the 
Constitution rather than a precedent she thinks clearly in conflict 
with it.''
  In a University of Colorado Law Review article, ``Stare Decisis and 
Due Process,'' she wrote that the ``rigid application'' of stare 
decisis ``unconstitutionally deprives the litigant of the right to a 
hearing on the merits of her claim.''
  In a third piece, ``Statutory Stare Decisis'' in the Courts of 
Appeal, published in the George Washington Law Review, she goes 
further, saying: ``Whatever the merits of statutory stare decisis in 
the Supreme Court, the inferior courts have no sound basis for 
following the Supreme Court's practice.''
  Her lack of respect for stare decisis is deeply disconcerting and 
raises serious concerns about her future conduct on the court, if 
confirmed.
  Professor Barrett has also expressed a number of highly controversial 
political positions that could influence her ability to fairly hear and 
decide the cases that come before her.
  In criticizing the Supreme Court's ruling upholding the Affordable 
Care Act, for example, she wrote that Chief Justice Roberts had 
``pushed the Affordable Care Act beyond its plausible meaning to save 
the statute.''
  Her views on the rights of detainees are similarly disconcerting. In 
2008, the Supreme Court held that non-U.S. citizens held at Guantanamo 
Bay were entitled to file habeas corpus petitions to challenge their 
detentions. She argued in turn that the Court's decision in that case 
was ``contrary to precedent and unsupported by the Constitution's 
text'' and that the dissenters ``had the better of the argument.''
  During her confirmation hearing, Professor Barrett ignored or 
deflected with nonanswers the concerns I and my colleagues raised about 
her past statements, beliefs, and judicial philosophy. Instead of 
addressing what she wrote head-on, Professor Barrett denied she was 
trying to overturn precedent and insisted she would follow the law. Her 
writings raise serious concerns to the contrary.
  Unfortunately, Professor Barrett's nomination is not the only one we 
will consider this week.
  Before I vote in favor of a lifetime appointment to a Federal court, 
I should be able to conclude that the nominee in question would rule 
without bias or obvious ideology. Amy Barrett's answers and record made 
it impossible for me to draw such a conclusion regarding her 
nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Mississippi.