As expected, President Trump selected Amy Coney Barrett as his third nominee to the U.S. Supreme Court, and now the Judicial Branch Ragnarök and Related Festival of Catholic-Bashing is upon us.
It was outstanding. Trump is at his best in such settings, when he really has no choice but to be on his best behavior. As for Barrett herself, she is truly an inspired choice — a distinguished professor and jurist who is a deeply grounded originalist and, everything suggests, a composed and winsome public speaker.
She hit the right notes today. She honored the legacy of Ruth Bader Ginsburg, made her judicial philosophy crystal clear, and movingly introduced her incredible family. The high point may have been when Trump brought her family up on the stage with her. Her personal life shouldn’t strictly matter, but in the current context — when confirmations are political wars and there will be a determined attempt to portray her as a moral monster — it obviously does.
Democrats and the Left would be well-served to not wage a campaign of personal destruction against her and instead focus on the process and the supposed threat to the ACA, but they won’t be able to help themselves.
Senate Democrats could argue that based upon Barrett’s past decisions, they don’t agree with her legal philosophies and perspective on the law and don’t want her on the Court and leave it at that. Perhaps Senate Democrats will take that path, but judging by the preemptive discussion of Barrett, we’re likely to see more criticisms along the lines of Dianne Feinstein’s “the dogma lives loudly within you.” In the past week, we’ve already seen an effort to paint Amy Coney Barrett as a brainwashed Handmaid’s Tale religious drone, with those attacks debunked here, here, here, here, and here. Democrats and their allies will attempt to paint Barrett as a dangerous, unhinged extremist and also some sort of ill-informed theocratic maniac. Anyone who has watched a Barrett speech will know that she is sharp-minded, eloquent, and compelling.
On Friday Caitlin Flanagan of The Atlantic, who wrote that she believed Christine Blasey Ford and opposed the Brett Kavanaugh nomination, warned Democrats that they were in danger of “failing the Amy Coney Barrett Test.” It is unlikely that Senate Democrats will heed Flanagan’s warning. We have already seen criticism of Barrett’s adoption of minority children, the number of children she has and questions about whether she could adequately raise her children while being on the court, and whether her Catholic faith is incompatible with a role on the Supreme Court.
Also note that Senator Josh Hawley declared last month that he would “vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided. By explicitly acknowledged, I mean on the record and before they were nominated.” Last week, the senator told CNN’s Manu Raju he believes Barrett has met that standard.
The nomination of Barrett for the Supreme Court is a milestone in a number of ways. It would, if she is confirmed, plausibly give conservative, constitutionalist Justices a 6-3 majority on the Court for the first time since at least the 1930s, and move the center of gravity on the Court away from Chief Justice Roberts — a major swing, given that just two years ago, Justice Anthony Kennedy was still the deciding vote in many of the Court’s hot-button cases.
She would also be the first conservative academic on the Court since Justice Scalia, for whom she clerked, and whose judicial philosophy she again publicly embraced in her Rose Garden remarks today. Coming from Notre Dame Law School and Rhodes College, she would break the monopoly of the Ivy League on the current Court, but do so as a woman who spent nearly two decades as a full-time law professor. While Justices Kagan and Breyer were academics, too, the academic tilt of her résumé is somewhat unusual on the modern Court in not being balanced by experience in politics. Judge Barrett did not work in government before joining the bench, other than as a law clerk. By contrast, six of the eight current justices worked in the Justice Department in one capacity or another, and of the other two, Justice Thomas worked in the Education Department and the EEOC, and Justice Sotomayor worked for the Manhattan District Attorney’s Office and for various other agencies in state government. Justices Roberts and Kavanaugh also worked for the White House, and Justices Breyer and Kagan worked on Capitol Hill (in Kagan’s case, for Joe Biden). On balance, some diversity of professional experience on the Court is healthy — there is also one Justice (Sotomayor) who has worked as a trial judge, one (Thomas) who has worked in a corporate legal department, and two (Alito and Breyer) who have served in the military.
With three years under her belt on the Seventh Circuit, Judge Barrett has already spent more time on the bench than Chief Justice Roberts, Justice Thomas, or multiple past Justices. Justice Kagan, who was Dean of Harvard Law School, never served as a judge.
Generationally, Judge Barrett would be the first Justice born in the 1970s. This is an unusually young Court, as Justice Breyer is now the only Justice older than 72. Justice Gorsuch was born in 1967, Justice Kavanaugh in 1965. As a Justice, Barrett would also, as President Trump noted, become the first mother of school-age children ever on the Court, with seven children between the ages of eight and 19. In fact, she would be the only mother on the current Court, as Justice Kagan is single, Justice Sotomayor is divorced, and both are childless. If Judge Barrett, as expected, rules — as any judge with a decent respect for the written Constitution should — against Roe v. Wade, that would make her the first anti-Roe woman to sit on the Court (Roe, of course, was originally handed down by seven men).
Judge Barrett would inherit a distinguished seat on the Court from Ginsburg. Justice Ginsburg’s predecessors included Noah Swayne, the first Republican on the Court; Stanley Matthews, who wrote the landmark opinion in Yick Wo v. Hopkins against laws that are enforced in a discriminatory manner (in Yick Wo, against Chinese immigrants); George Sutherland, a resolute anti-New Deal conservative who wrote several landmark majority opinions on a variety of topics; Robert McLean, who was one of the two dissenters in Dred Scott; David Brewer, who but for a death in the family would likely have been one of two dissenters in Plessy v. Ferguson; and Byron White, who was one of two dissenters in Roe. One hopes that, as Justice Barrett, she will have more company when she takes a righteous stand than did some of her predecessors.