Judge Thomas Griffith says Judge Barrett will not let religious worldview color Supreme Court decision


Sen. Ted Cruz, R-Texas, left, speaks with Sen. Mike Lee, R-Utah, during the confirmation hearing for Supreme Court nominee Amy Coney Barrett, before the Senate Judiciary Committee, Thursday, Oct. 15, 2020, on Capitol Hill in Washington. | Bill O’Leary, Associated Press

Griffith was one of eight witnesses to testify on the fourth and final day of the committee’s Barrett confirmation hearings

Judge Amy Coney Barrett is a kind, decent woman and powerful legal analyst who would not allow her politics and religious views to influence her decisions as a Supreme Court justice, former BYU general counsel and federal judge Thomas B. Griffith told the Senate Judiciary Committee in Washington, D.C., on Thursday.

Griffith retired last month after 15 years on the U.S. Court of Appeals for the D.C. Circuit. The former judge, a member of The Church of Jesus Christ of Latter-day Saints, said Barrett, who is Catholic, would not permit her faith to dictate her decisions.

He said the federal judicial oath is intended to transform a citizen into an impartial judge loyal to the Constitution and law and “not to any president, party or religion.”

“For a person of faith, the judicial oath is a promise to the nation and to God that she will not do the one thing her secular critics most fear, reach for outcomes based on her religious worldview,” Griffith said. “When wearing the robe, there is no conflict between following God and Caesar. It’s Caesar, all the way down.”

Griffith was one of eight witnesses to testify on the fourth and final day of the committee’s Barrett confirmation hearings. The committee decided Thursday to vote on Barrett’s nomination on Oct. 22 at 11 a.m. Mountain time.

If confirmed by the committee, the full Senate will take up her nomination on Oct. 23 and could vote as soon as Oct. 26.

Democrats called half of Thursday’s witnesses, who spoke against Barrett on the basis of concerns about how they think she might vote on cases regarding the Affordable Care Act, voting rights and abortion.

The judiciary committee’s Republican majority called Griffith and the other witnesses.

Griffith served as the Senate’s chief legal officer in the late 1990s, then was BYU’s general counsel from 2000-05, when the Senate confirmed his nomination to the D.C. Circuit bench.

Griffith said he is deeply disturbed by increasing partisan wrangling over judicial nominations, citing a recent survey that showed two-thirds of Americans believe Supreme Court justices primarily base decisions on law and not politics. He said political leaders and pundits who reduce the court’s decisions to partisan lines harm the institution.

“They undermine public confidence in an independent judiciary, which is the cornerstone of the rule of law. The rule of law is a fragile possibility that should be more carefully safeguarded by our leaders,” he said.

Senate Judiciary Committee
Former federal judge Thomas B. Griffith testifies remotely in the confirmation hearing for Supreme Court nominee Amy Coney Barrett before the Senate Judiciary Committee, Thursday, Oct. 15, 2020. Griffith is a former Brigham Young University general counsel and previously served as the Senate’s chief legal officer.
The Barrett hearings concluded Thursday afternoon with members of the judiciary committee from both parties lauding the civil nature of the hearings two years after the contentious nomination of Justice Brett Kavanaugh.

The two sides discussed potential bipartisan judicial reform during Thursday’s hearing and, after the hearing adjourned, there was a hug between the committee chairman, Sen. Lindsey Graham, R-South Carolina, and the leading Democrat, Sen. Dianne Feinstein of California.

Griffith recently published an opinion piece defending Barrett, whom he called his friend and said “is supremely well-qualified” to sit on the Supreme Court.

The panel of witnesses waited more than two hours to testify Thursday morning as the committee wrestled over setting its vote on Barrett and then a motion to delay Barrett’s nomination indefinitely.

During debate on the motion, Democrats renewed their frustration that President Donald Trump nominated Barrett, 48, a mother of seven and member of the Seventh Circuit Court of Appeals based in Chicago, during a presidential election that is underway. As many as 15 million Americans have voted so far, according to The Washington Post.

Sen. Mike Lee, R-Utah, told the committee the hearings are the consequence of previous elections that gave Republicans a majority in the Senate and its judiciary committee.

“We had the authority to do this,” he said, referring to filling the opening on the Supreme Court created by the death last month of Justice Ruth Bader Ginsburg.

Sen. Cory Booker, D-New Jersey, argued that waiting until after the election would arrest growing American division when he said he still believed Republicans and Democrats have more that should unite them than what divides them.

“Some of the greatest acts in American history are when people had the authority to do something and they showed the restraint of power and didn’t use that authority,” he said. “This is one of those moments where that is the kind of grace that can stop the tumbling of this institution further toward what I think will be a real constitutional crisis and will help us begin to rise together to save this nation. We are now at a point, what we’re about to do here, unless my colleague’s resolution somehow passes, where we are going to set another firm foot to the erosion of our institutions.”

The motion to suspend the hearings failed on a vote along partisan lines.

Representatives of the American Bar Association testified about its role in reviewing Barrett’s background by gathering information on her from hundreds of professionals and colleagues.

The ABA’s standing committee on judicial nominations gave Barrett a rating of “highly qualified,” the ABA’s Randall Noel said.

The four witnesses who appeared for the Democrats against Barrett were Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, who expressed concerns about Barrett statements and past writings and rulings on voting rights and gun rights; and three witnesses who said it is important that the Affordable Care Act not be struck down by the Supreme Court. Also:

Crystal Good, who had an abortion as a teenager via a legal order provided by the ACA that allows teenagers to have an abortion without parental permission.
Dr. Farha Bhatti, chief executive of a Michigan nonprofit clinic, who called the ACA a lifeline for his patients.
Stacy Staggs, an advocate for families facing complex medical situations and mother of 7-year-old twins with preexisting medical conditions.

In addition to Griffith, Republicans also called Saikrishna Prakash, a University of Virginia law professor; Amanda Rauh-Bieri, a former clerk for Barrett; and Laura Wolk, a former student of Barrett’s at Notre Dame and the first blind woman to clerk at the Supreme Court.

Here are Griffith’s full remarks, as delivered Thursday morning:

Mr. Chairman, Ranking Member Feinstein and members of the committee, from 2005 until last month I was a judge on the U.S. Court of Appeals for the D.C. Circuit, but before that I spent several years and many long hours in the hearing room where you are now as the nonpartisan senate legal counsel. I’m appearing to you virtually, but it’s good to be back in a room where I spent so much time working with such great senators.

I’m honored by the invitation to speak in support of the confirmation of my friend, Amy Coney Barrett, to the Supreme Court of the United States. As you and the nation have seen during these hearings, Judge Barrett is supremely well-qualified to join the other esteemed members of the court. A recent survey found that over two-thirds of the American people believe that Supreme Court justices base their decisions primarily on the law and not on politics. In light of that, there’s something deeply disturbing about much of the debate surrounding judicial nominations in our nation. Many political leaders and pundits assume that a judge will cast her vote based on partisan preference. Such explanations, typically made for short-term political gain, do much harm. They undermine public confidence in an independent judiciary, which is the cornerstone of the rule of law. The rule of law is a fragile possibility that should be more carefully safeguarded by our leaders. I agree with the chief justice. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Having served 15 years on the D.C. Circuit, alongside judicial appointees of every president from Carter to Trump, I have seen firsthand that judges can and do put aside party and politics in a good-faith effort to correctly interpret the law. Justice Kagan made the same point at her confirmation hearing. She flatly rejected the idea that difficult cases turn on “What’s in a judge’s heart.” Instead, as she put it with her characteristic wit, “It’s law, all the way down.”

That is precisely the type of jurist Judge Barrett has been. In Price v. City of Chicago, she ruled against pro-life litigants who challenged an ordinance that barred them from approaching women near abortion clinics for the purpose of leafleting, protesting or counseling. Even though there were substantial arguments that the ordinance violated the First Amendment under an aggressive reading of recent Supreme Court precedent, Judge Barrett joined an opinion that followed binding precedent and upheld the ordinance. She displayed the same impartial approach in rulings that allowed the first federal executions in 17 years to proceed, regardless of her personal views on the death penalty.

As constitutional scholar Jonathan Adler pointed out, “These decisions certainly are not in line with church teaching and further suggest that Judge Barrett applies the law whether or not that coincides with her personal beliefs.” Judge Barrett brings something else to her work as a judge that is especially vital to our nation at a time when many regard those with differing views as enemies, not friends. In the words of Judge Laurence Silberman my friend and distinguished former colleague on the D.C. Circuit, for whom Judge Barrett clerked, “Amy combined a powerful analytical ability with an innate kindness and sense of decency.”

The public record makes clear Judge Barrett’s powerful analytical ability. I don’t think we can overstate the importance of her kindness and decency. Judge Barrett’s colleague at Notre Dame, O. Carter Snead, says of her, “She genuinely seeks to understand others arguments. Time and again, I have seen her gently reframe a colleague’s arguments to make them stronger, even when she disagreed with them.”

Professor Lisa Grow Sun of Brigham Young University observes, “Amy, always welcomes the opportunity to learn more from people whose perspectives differ from her own. She’s always very generous to other people’s arguments.”

Finally, some of the discussion about Judge Barrett’s faith has been tinged with bigotry. Some of it comes from a sincere desire to know whether her faith will dictate her decisions as a justice. As a person of faith who served on the D.C. Circuit, let me assure you it will not. The oath that every federal judge must take is intended to transform the citizen into an impartial judge, whose loyalty while performing her judicial role is to the Constitution and laws in the United States and not to any president, party or religion.

In taking the oath the judge makes a solemn promise, with God as witness, that when acting as a judge, she will be a different person than when she’s not acting as a judge. Robert Bolt’s portrayal of Thomas More in “A Man for All Seasons” captures this point simply and powerfully. “What is an oath,” More asks, “but words we speak to God.” In other words for a person of faith, the judicial oath is a promise to the nation and to God that she will not do the one thing her secular critics most fear, reach for outcomes based on her religious worldview. When wearing the robe, there is no conflict between following God and Caesar. It’s Caesar, all the way down.

I thank you for this opportunity and look forward to any questions that you might have.