Judge Amy Coney Barrett spells out her textualist judicial approach in lengthy hearings before the Senate Judiciary Committee. Editor’s note: This article is available for members only.
10/14/2020 15:00
Timing served as a common thread in the discussions during Judge Amy Coney Barrett’s nomination hearings before the Senate Judiciary Committee that will conclude Thursday, Oct. 15.
“Courts have a vital responsibility to enforce the rule of law, which is critical to a free society,” Barrett said in her Oct. 12 opening statements before the committee that is considering her nomination as associate justice of the U.S. Supreme Court. “But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try. That is the approach I have strived to follow as a judge on the 7th Circuit. In every case, I have carefully considered the arguments presented by the parties, discussed the issues with my colleagues on the court, and done my utmost to reach the result required by the law, whatever my own preferences might be. I try to remain mindful that, while my court decides thousands of cases a year, each case is the most important one to the parties involved. After all, cases are not like statutes, which are often named for their authors. Cases are named for the parties.”
During questioning on day two of the hearings, U.S. Sen. Chris Coons, D-Del., also asked Barrett if she would recuse herself from any presidential election case that should arise in the Supreme Court after Nov. 3. There is also a question of whether Barrett would have to recuse herself from the Facebook v. Duguid oral arguments slated for Dec. 8 because of her previous work on these issues in the 7th Circuit.
“What I will commit to every member of this committee, to the rest of the Senate and to the American people, is that I will consider all factors that are relevant to that question that requires recusal when there is an appearance of bias,” Barrett said.
Recusal requires a look at actual bias and the appearance of a conflict of interest, she explained, and it is a “difficult” legal issue.
Barrett’s nomination hearings conclude Oct. 15, and the Senate Judiciary Committee will have an executive business meeting on Barrett’s nomination, and several others at the district court level, on Friday, Oct. 16. Her nomination is expected to be considered on the Senate floor later this month.
ACA International Outlook
Front and center for ACA International and the accounts receivable management industry is Barrett’s narrow reading of the TCPA in past 7th Circuit cases, including Gadelhak v. AT&T Services Inc., which paints a favorable picture for the Facebook v. Duguid outcome if she is confirmed to serve on the U.S. Supreme Court.
ACA expects a Senate vote on Barrett’s nomination by the end of October. On this timeline, Barrett would be a part of the oral arguments in Facebook v. Duguid, a case that could have significant impact on defining what is considered an automatic telephone dialing system under the TCPA.
Meanwhile, ACA and industry trade groups are supporting Facebook’s appeal in the case.
A total of 13 groups filed briefs supporting Facebook’s appeal in the case.
Duguid’s response to the briefs is due Oct. 16, and amicus briefs in support of Duguid are due Oct. 23.
The nomination and confirmation process for Barrett could impact the timing of the decision in the Facebook v. Duguid case.
The Republicans need a majority vote to confirm the nominee, which is close with their 53-47 majority in the U.S. Senate. Vice President Mike Pence would vote in the event there is a 50-50 tie.
Circuit courts remain split on the issue and the Facebook v. Duguid case could settle the outcome.
Politics and timing aside, Barrett’s case record on industry statutes, including the TCPA and Fair Debt Collection Practices Act, proves to be in line with industry priorities on modernizing the laws and compliance guidelines for businesses to meet consumers’ expectations for technology and communication while ensuring protections are in place.
Barrett’s confirmation would also mean a vacancy of her seat on the 7th Circuit that likely would not be filled by the president until 2021. Given the important TCPA rulings out of the 7th Circuit, Barrett’s potential replacement will be one to watch and followed by ACA.
For more insights on Barrett’s nomination and a preview of the oral arguments in Facebook v. Duguid, ACA members may listen to the ACA Huddle with Leah Dempsey, ACA’s vice president and senior counsel of federal advocacy, Tara Morrissey, deputy chief counsel at the U.S. Chamber of Commerce Litigation Center, and Jeffrey R Johnson, a partner at Jones Day’s Issues and Appeals practice.
ACA also recently reported on the possible impacts of the nomination and changes at the U.S. Supreme Court in an article for members, Breaking Down What’s Next for the TCPA.
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Photo Credit: University of Notre Dame