Judge Amy Coney Barrett is, by most accounts, the frontrunner to receive President Trump’s third Supreme Court nomination. That has elements of the base fired up. If the President does pick Judge Barrett, his supporters should get behind her 100 percent. Despite her extraordinary qualifications and myriad admirable qualities, however, the right must pause to recognize there are serious political reasons for not selecting Judge Barrett less than a month a half before election day.
There is no denying that, on paper, Judge Barrett is close to the ideal candidate. It would not be too great of an exaggeration to say she has engendered, among certain segments of the president’s coalition, something approaching the left’s “Notorious RBG” hagiography. It is easy to see why. Barrett is the anti-Ginsburg. Both women were rock stars from the moment they entered the legal profession. Both rocketed to the federal bench in their mid-40s to the applause of their respective ideological tribes.
Barrett is the old stock New Orleans belle-cum-Midwestern mother of seven answer to Ginsburg’s Brooklyn-born, Ellis-Island-to-Supreme-Court-in-a-generation American Dream. Barrett’s 30s and early 40s spent as a conservative champion in legal academia is analogized to Ginsburg’s decade as a crusader for the abolition of all sex distinctions in American law. Barrett’s abiding Catholic faith takes the place of Ginsburg’s liberal zeal.
Barrett was executive editor of the Notre Dame Law Review while Ginsburg had the rare distinction of having served on both Harvard and Columbia’s Law Review. Her confirmation would break an Ivy League monopoly that, since Justice John Paul Stevens retired in 2010, has held the Supreme Court in its complete grip for the first time in American history. With Justice Ginsburg’s death, every sitting member of the Supreme Court graduated from Harvard or Yale’s law school, and Notre Dame valedictorian Barrett seems just the woman to shake that up.
No potential nominee, however, is perfect. In Judge Barrett’s case, the aesthetic case for choosing her is so exciting that there is a strong tendency to overlook any lurking pitfalls. In her three years on Seventh Circuit, Barrett has done much to assuage the perennial conservative fear of solid-seeming appointees going soft on the bench. In her majority opinion in Doe v. Purdue University, she delivered perhaps the strongest judicial rebuke yet to public universities’ kangaroo sexual assault “courts” where young men’s lives are destroyed without the benefit of due process. Her dissent in Kanter v. Barr took an expansive and originalist view of Second Amendment rights. And most encouragingly, her scathing dissent in Cook County v. Wolf took two fellow judges, including a George H.W. Bush nominee, to task for acquiescing in Chicago Democrats’ attempt to whittle the legal prohibition on admitting immigrants likely to become public charges down to a meaningless nothing.
Yet some concerns from the right remain well-founded. It cannot be dismissed that, immediately before the 2016 election, she was openly skeptical about the future President Trump and his commitment to appointing conservatives. Furthermore, her determination that Catholic judges are “obliged to adhere to their church’s teaching on moral matters” enthuses some, but may put her at odds with the mainstream of conservative legal thought. Most notably, in 1998, she concluded that Catholics must not permit the death penalty, which the Catechism of the Catholic Church now categorically prohibits, unless “absolutely necessary” and that “as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.”
The greatest potential trouble, however, lies not with lingering doubts from the right, but in the reaction Judge Barrett’s nomination would inspire on the center and left. The very same aspects of her life and philosophy that excite her partisans – her deep faith, her moral principledness, even her adoption of two children from Haiti – play directly into the caricature of conservatives “coming for your birth control” that Democrats have been scaring suburban white women with for decades. Six weeks from this all-important election, President Trump risks giving the left an avenue to rile up the enthusiasm Joe Biden cannot deliver while adding little to his already fully engaged social-conservative base.
The moment Donald Trump nominates Amy Coney Barrett, she will become the center of campaign, the third name on the ticket below President Trump and Vice President Pence. Social conservatives may be up for a bareknuckle fight over Judge Barrett, abortion, and Roe v. Wade. The country, and the swing voters Donald Trump is going to need to keep the White House and the Senate, are not nearly so game.
Far too many of Barrett’s supporters believe her to be, as a woman, immune from the kind of slander and scandal-mongering that very nearly sabotaged Brett Kavanaugh, the best Supreme Court pick since Antonin Scalia and Clarence Thomas. Considering how close the left and the still-present squishy GOP came to destroying the life of a good, morally upright family man over evidence-free gossip about what can only be seen as a very normal American college and high school experience, does anyone really think there is not hay to be made about Judge Barrett’s membership in a Charismatic Christian group that advocates speaking in tongues and designates female members “handmaidens?”
With a Democratic Party that has already shown it has no reservations about reaching into nominees’ religious lives to dig up dirt, conservatives ought not buy into any talk Barrett’s confirmation would be uncontroversial or a forgone conclusion, even without the “Merrick Garland question” hanging over the proceedings.
It will be difficult enough to get President Trump reelected in November without having to, in effect, get Amy Coney Barrett to the Supreme Court at the same time. As much as her candidacy excites many of us, we should not let that enthusiasm delude us into believing she is going to have mass democratic appeal outside of conservative circles. As much as we would like to see a justice like Amy Coney Barrett sitting on the Supreme Court, if figuratively adding her to the ticket costs President Trump the White House it will not be worth the exchange.
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