This analysis begins in 2016 when Associate Justice Antonin Scalia was found dead in a Texas hunting lodge cabin. President Obama, then in the final year of his second (and final) term submitted to the Senate his nomination of Federal Appeals Court Judge Merrick Garland. Fast forward to September 18, 2020 and the death of Associate Justice Ruth Bader Ginsburg. President Trump, then in the final year of his first (and probably final) term submitted to the Senate his nomination of Federal Appeals Court Judge Amy Coney Barrett. What Obama did in 2016 and what Trump did in 2020 are pretty much the same. The difference is within the Senate.
I have previously written that President Obama had a duty in 2016 to seek the advice of the Senate in selecting a SCOTUS nominee. He did not discharge that duty. I have previously written that Senate Majority Leader Mitch McConnell had a duty in 2016 not to confirm Judge Garland but to afford him an up-or-down vote. He did not discharge that duty. The McConnell theory in 2016 was that no SCOTUS vacancy should be filled in the final year of a presidential term. That was McConnell’s rule for 2016, not to be confused with McConnell’s rule for 2020 respecting the nomination of Amy Coney Barrett.
There is a quote from on or about September 7, 2016 attributed to the late Ruth Bader Ginsburg, to-wit: “Senators refusing to vote on President Obama’s nominee in the Supreme Court should recognize that a president is elected for four years not three.” Just as the McConnell rule evolved from 2016 to 2020 the RBG rule evolved as well. According to a surviving relative, the late Justice Ginsburg’s “most fervent wish” was not to be replaced until the “installation of the next president,” presumably Joe Biden. In a similar vein, Senate Democrats who complained in 2016 about the absence of a confirmation vote now complain that a confirmation vote will be taking place. Political hypocrisy abounds.
But what of the nominee? 7th Circuit Court of Appeals Judge Amy Coney Barrett graduated from the Law School at Notre Dame with highest honors (summa cum laude) in 1997. She spent the next year clerking for Judge Laurence Silberman of the Court of Appeals for the D.C. Circuit and then a year clerking for the late Antonin Scalia of the Supreme Court. Such clerkships are both prestigious and temporary. After such a clerkship the young law graduate is expected to move on to the actual practice of law. Known then as Amy Coney-Barrett, our nominee practiced law in a District of Columbia law firm from 1999 to 2002. While practicing law with the D.C. firm in late 2000 she had the opportunity to work on Bush v. Gore.¹ Her contribution was described as “research and briefing assistance.” While such work is important it is very far from being lead counsel or even getting your name on a SCOTUS brief. I ran the name Amy Coney-Barrett and variations of it in an online database for published opinions in the D.C. District Court and D.C. Circuit Court of Appeals for 1999 through 2002. The search produced no hits, no published opinions listing Ms. Barrett as counsel. In my view Justices of the Supreme Court should have experience including the actual practice of law. The actual practice of law involves walking into a courtroom alongside a client who is relying upon you and you only. My research may be less than complete but uncovered no examples of Ms. Barrett engaged in the actual practice of law as lead counsel in litigation. Even if she assumed such a lead counsel role sometimes over three (3) years of “practice,” that is still deficient (in my view) for qualification to the SCOTUS.
On the other hand, there is no deficit in the academic aspect of Judge Barrett’s qualifications. She returned to Notre Dame in 2002 to teach law until her 2017 ascension (per President Trump’s nomination) to the 7th Circuit Court of Appeals. While back at Notre Dame those 15 years, did she take the Indiana bar exam? Judge Barrett was never admitted to the practice of law in Indiana. She could have taken the Indiana bar exam while finishing her studies at Notre Dame or after graduation. She could have taken the Indiana bar exam during those 15 years of teaching law at Notre Dame. It appears that Judge Barrett’s interests did not include the actual practice of law.
Three (3) years on the 7th Circuit Court of Appeals will always produce a record of opinions, concurrences, and dissents. Judge Barrett has drawn attention for positions taken on the Second Amendment, immigration, employment discrimination, and due process as applied to a Title IX case from Purdue. I will look at a single case in which Judge Barrett wrote the Court Opinion. The case is Casillas v. Madison Ave Associates, Inc., 926 F.3d 329 (7th Cir. 2019). Casillas was an FDCPA case involving a debt collector’s failure to follow a statutory mandate of advisements in a debt collection letter. The Fair Debt Collection Practices Act authorizes the recipient of a noncompliant debt collection letter to sue for actual damages or “liquidated” damages that are recoverable without evidence of actual, demonstrable damages. Paula Casillas sued the debt collector for the statutory liquidated damages. Her suit was dismissed. She appealed to the 7th Circuit where the dismissal was affirmed on Article III Sec. 2 “case or controversy” grounds.
The Barrett Opinion explained that the mere grant of a statutory cause of action for liquidated damages independent of actual demonstrable harm still requires proof of such harm according to the Constitutional requirement of a “case or controversy” to invoke judicial jurisdiction. The position of the Barrett Opinion is elitist and devoid of any deference to acts of Congress. It ignores the point of law that standing to sue (which Paula Casillas was said to have lacked) may be conferred by statute.
There seems to be a split between the 6th and 7th Circuits on the issue of standing to sue for a “barely procedural” FDCPA advisement violation linked to no actual harm. The hope here is that the SCOTUS (with or without Judge Barrett) will reverse the Casillas holding.² I do not expect any SCOTUS nominee to share all of my legal views. A mistaken elitist position as expressed in Casillas is cause for some concern but would not be a deal-breaker if I were somehow given a confirmation vote.
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¹ Remember pregnant chads and hanging chads? The case was essentially about whether there should be a recount of presidential votes in parts of Florida . The 5/4 SCOTUS decision in favor of George W. Bush sealed the election.
² A practice tip to attorneys is to keep your FDCPA claims (mostly counterclaims to a collection suit) in Indiana State court where there is no “case or controversy” prerequisite and where the statutory standing will be recognized.
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