Amy Coney Barrett – the Jurist, the Facts, the Woman

On the evening of Saturday, September 26, President Trump announced his nomination of Amy Coney Barrett to succeed Ruth Bader Ginsburg on the United States Supreme Court. Barrett was long a favorite of Trump’s, and by Saturday morning, many news organizations were reporting that she would receive the presidential nod. Ms. Barrett is a judge on the Chicago-based U.S. Court of Appeals for the Seventh Circuit, where she has been for just under three years, having been appointed by Mr.Trump.

As they gathered together in the Rose Garden of the White House, Trump first offered condolences for Justice Ginsburg’s passing on September 19, describing her as a true American legend. The president then proceeded to laud his nominee, Barrett:

“Today it is my honor to nominate one of our nation's most brilliant and gifted legal minds to the Supreme Court. She is a woman of unparalleled achievement, towering intellect, sterling credentials, and unyielding loyalty to the Constitution."

The 48-year-old Judge Barrett was joined for the announcement by her husband and seven children. Barrett left law school and went right to prestigious clerkships, including for the late Justice Antonin Scalia. She has spent near the entirety of her career as a law professor at Notre Dame. She began by thanking the president and saying: "I love the United States and I love the United States Constitution." After paying homage to the woman she will succeed, Barrett went on to address the role of a Supreme Court justice by referencing what she learned from the late Antonin Scalia, for whom she clerked:

"[Scalia's] judicial philosophy is mine too. A judge must apply the law as written. Judges are not policymakers and they must be resolute in setting aside any policy views they might hold."

Saving Her For Ginsburg

The U.S. Senate will now process the nomination. The last Supreme Court nomination they entertained was that of Justice Brett Kavanaugh’s. That confirmation broke down into heretofore unseen levels of vitriol and wild attempts at character assassination. Will Barrett’s be any better?  Well, the stakes are higher this time around – much higher.

Since Kavanaugh was replacing Justice Anthony Kennedy, his nomination was less controversial because Kavanaugh’s views, seen as substantially similar to Kennedy’s, would not alter the balance of right- and left-leaning Justices on the Court. Barrett’s nomination will be the metaphysical opposite, in that it could change everything. Justice Ginsburg was a rock-solid reliable vote for left-wing jurisprudence and politics. She used her considerable legal and rhetorical skills to provide much of the legal intellectual underpinnings of a swath of Supreme Court rulings – many of the hot-button variety.

Justice Ginsburg’s success as legal director at the ACLU’s Women’s Rights Project came from her prowess as both a tactician and a strategist, as well as her legal acumen. She brought that to the Supreme Court, where through case selection and her opinions, even in dissent, she wielded an outsized influence.

If Amy Coney Barrett turns out to be a mirror image of Ruth Bader Ginsburg, the worst fears of the left and hopes of the right will be realized. That is what animates her fervent supporters and opponents. Consider that gay marriage, voting districts, and abortion issues were all just decided by 5-4 opinions, and you see the writing on the wall.

Why They Hate/Love Her: Roe

This latest confirmation battle might be seen as another chapter in the book begun by Ted Kennedy. When Ronald Reagan announced he would nominate Robert Bork to replace retiring Justice Lewis Powell, then-Senator Kennedy (D-MA) launched an immediate and vicious attack on Bork. My search for a definition of the verb “bork” yields “obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them.” That is what Kennedy did to Bork, who he thought might not share the same regard for the Roe v. Wade opinion that Kennedy had.

Kennedy made Bork into a woman-hating neo-segregationalist, hell-bent on the destruction of free speech. At the time, Judge Bork sat on the D.C. Circuit Court of Appeals. He had been a law professor at Yale before his nomination to that court, and his legal thoughts and scholarship were hardly radical. The curious thing is that Ted Kennedy and every other senator voted to confirm Bork to that D.C. seat – the Senate’s decision was unanimous. Why the change? How can he be exceedingly well qualified for one and must be stopped at all costs for the other?

Amy Coney Barrett has seven children, including two adopted from Haiti and one with special needs. A former member of the University of Notre Dame’s Faculty for Life, Barrett signed a 2015 letter to Catholic bishops that affirmed the “teachings of the Church as truth.” During her confirmation hearing for her current position, California Senator Dianne Feinstein (D) told Barrett: “The [Catholic] dogma lives loudly within you.” Trump’s latest nominee is being positioned as the worst nightmare for abortion rights proponents and the saving grace for pro-lifers.

Angel or Demon

As more and more issues find their resolution not in the halls of Congress, but at the Supreme Court, who makes those decisions become ever more important. The right to terminate a human pregnancy or put a prisoner to death, down to which immigrants may be granted visas or which reporters may be admitted to the White House, are now matters for the Supreme Court. While a Justice Barrett is likely to be neither extreme, she may indeed be Ginsburg’s legal nemesis.

Conservatives are convinced that Ms. Barrett shares their values. They are determined to do as liberals do – nominate a candidate they know with certainty shares their views. Feeling burned by Justices Roberts and Souter, for instance, they support Barrett because they see her as someone who will fight for the ideological right the way RBG fought for the left.

We can expect some senators to soil her anyway they might imagine. The nominee can be expected to say not much at all – a tactic very successfully pioneered by Ruth Bader Ginsburg. Judge Barrett is President Trump’s third nominee to the court, and if successful, would be the fifth woman ever appointed.

~

Read more from Scott D. Cosenza.