Barrett recalled as a ‘joy’ as law school freshman
WithU.S. Supreme Court nominee Judge Amy Coney Barrett going through her Senate confirmation hearings thisweek, I didn’t need to knowif “the dogma lived loudly within” her, or if she were or had ever been an “Orthodox Catholic.”
All that had already been asked by Democratic Sens. Diane Feinstein of California and Dick Durbin of Illinois when they attacked her Roman Catholic faith in a hearing when shewas confirmed to theU.S. Court of Appeals.
What Iwanted to knowis this: Whatwas the impressive ACB like as a student, in that first exhausting and terrifying year of lawschool atNotreDame?
Whatwas the cut of her mind, in those years before she got married, began a family that grew to seven children, clerked for the late Supreme Court Justice Antonin Scalia, become a lawprofessor atNotreDame and then a federal judge?
Her first-year lawprofessor, former Ambassador Douglas Kmiec— appointed as ambassador toMalta by former President Barack Obama— had written me an email about his first impressions while teaching the youngAmy Coney Barrett at the NotreDame school of law.
He said the first thing you noticed about herwas “the light of her intellect and the joy of her soul.”
And so I asked Kmiec to be a guest onmy podcast, “The ChicagoWay.”
“I remember her,” Kmiec. said “I used theword ‘joy.’ Shewas not afraid to take on rigorous intellectual challenge. She embraced it. She embraced the unknown
and all the challenges and hard historical digging that it sometimes takes to identify a provision in the Constitution or elsewhere. Teachers remember students in differentways. One of the things I’m haunted with is that I can remember where people sat in a particular classroom.
“And I can remember teaching a rule that all students come to detest: The Rule Against Perpetuities.”
Ah, the loathsome Rule Against Perpetuities, which I had avoided up to now. I’m told it is an arcane bit of doctrine that traces back to ancient common lawand prevents people fromtying up real property with covenants and restrictions.
It is detested by many students. If you knowlawyers, ask them. It’s the kind of thing thatwould driveme crazy and compel me to gowork for a newspaper and learn to drink whiskey while
covering greasy Chicago politicians and criminals.
But notAmy Coney Barrett. “There are few late-night TV programs with real property at the center of scriptwriting,” said Kmiec. “The succession of ownership, title, all determined by laws that go back centuries. And many students say, ‘Why do I have to learn this?’ ‘Where’s this going?’ With the Rule Against Perpetuities there is a very complicated formula determining what interests survive and what interest can’t.”
I nodded as if I had a clue. But I didn’t and still don’t.
“ButAmy figured all that out,” Kmiec said. “Not only that, she identified in the case book where the author, a very distinguished author— and I’m happy to say it wasn’tme— had made a mistake. He’d offered an answer (in the textbook) thatAmy demonstrated conclusively it could not be.”
And after that, thewordwent out among professors who hadn’t already learned of her qualities: Keep an eye on this one.
Barrett is not an activist liberal judge. She doesn’t see herself as a legislator pushing policy. Working for the conservative Scalia helped shape her views, and for this, she’ll be attacked. It has become a partisan habit of Democrats to attack the character of those nominated for the Supreme Court by Republican presidents.
“And that is reason in itself as a revelation as towhy Judge Barrett’s confirmation is so needed,” Kmiec said. “The reason behind the hatred and partisanship is that, for too long, people have gotten into the habit of thinking of judges as an additional policymaking body as opposed to those who interpret the laws that the legislature— the real policymaking body— makes.”
Most Americans see the partisanship and tribalism. But where does it come from? Many argue that for decades and decades now, a bipartisan Congress hasn’t made lawas much as it has sent guidelines to the federal bureaucracy to be filled in as law. And these unelected federal bureaucrats not accountable to the people wield great power and fight to protect their fiefdoms and their control over the Administrative State.
Adding to the tension is general misinterpretation in America that judgesmay invent rights and shape the Constitution to the political whims of the moment.
Kmiec doesn’t plan on going to Washington to be close to the confirmation hearings. He is concerned that Barrett will be attacked for her faith. But wise Democrats knowthat everyweek, her popularity rises, and they might notwant to anger swing state suburban Catholics before the election.
“I’m going to stay safely here in South Bend behindmy mask and watch on TV,” Kmiec said hoping to see reasoned judgment and fair-minded questions.
“I think the countrywould feel better about itself if, having found thiswonderful lawyer and mother and contributor to her community, that instead of tearing the person down or finding somemysterious witness that says, ‘Well, she didn’t tie her shoes properly on some day,’ that insteadwe rejoice thatwe can still produce people of this quality, even people who can figure out arcane property issues from the rule of perpetuities.”
Thank you, Ambassador Kmiec.
Good luck, Judge Barrett.