With U.S. Supreme Court nominee Judge Amy Coney Barrett going through her Senate confirmation hearings this week, I didn’t need to know if “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 she was confirmed to the U.S. Court of Appeals.
What I wanted to know is this:
What was the impressive ACB like as a student, in that first exhausting and terrifying year of law school at Notre Dame?
What was 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 law professor at Notre Dame and then a federal judge?
Her first-year law professor, former Ambassador Douglas Kmiec — appointed as ambassador to Malta by former President Barack Obama — had written me an email about his first impressions while teaching the young Amy Coney Barrett at the Notre Dame school of law.
He said the first thing you noticed about her was “the light of her intellect and the joy of her soul.”
And so I asked Kmiec to be a guest on my podcast, “The Chicago Way.”
“I remember her,” Kmiec. said "I used the word ‘joy.’ She was 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 different ways. 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 law and prevents people from tying up real property with covenants and restrictions.
It is detested by many students. If you know lawyers, ask them. It’s the kind of thing that would drive me crazy and compel me to go work for a newspaper and learn to drink whiskey while covering greasy Chicago politicians and criminals.
But not Amy 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.
“But Amy 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’t me — had made a mistake. He’d offered an answer (in the textbook) that Amy demonstrated conclusively it could not be.”
And after that, the word went 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 to why 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 law as 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 judges may 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 know that every week, her popularity rises, and they might not want to anger swing state suburban Catholics before the election.
“I’m going to stay safely here in South Bend behind my mask and watch on TV,” Kmiec said hoping to see reasoned judgment and fair-minded questions.
“I think the country would feel better about itself if, having found this wonderful lawyer and mother and contributor to her community, that instead of tearing the person down or finding some mysterious witness that says, ‘Well, she didn’t tie her shoes properly on some day,’ that instead we rejoice that we 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.
Listen to “The Chicago Way” podcast with John Kass and Jeff Carlin — at www.wgnradio.com/category/wgn-plus/thechicagoway.
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