On Saturday 26 September 2020, President Trump officially announced that he would be nominating Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg on the Supreme Court. Trump presented her as a champion of conservative judicial principles and ignited a partisan and ideological battle to confirm her before the approaching election. Who exactly is Judge Barrett and how could the deeply conservative jurist shift the balance of the court firmly to the right?
“She is a woman of unparalleled achievement, towering intellect, sterling credentials and unyielding loyalty to the Constitution,” Trump said when making his third Supreme Court nomination in his nearly four years in office.
Barrett is a federal appellate judge and Notre Dame law professor as well as a former law clerk to the late right-wing beacon Justice Antonin Scalia, who died in 2016. At stake in her nomination is the future of public safety, gun rights and religious liberty.
Judge Barrett directly aligned herself with Justice Scalia, “His 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.”
She had been the leading choice throughout last week since Justice Ruth Bader Ginsburg died. One source told CNN that Trump was familiar with Barrett already and had met with her since she was a top contender the last time there was a Supreme Court vacancy when the President chose Justice Brett Kavanaugh instead.
As a conservative with a compelling personal story who has long been atop President Donald Trump’s Supreme Court short list, Barrett could roll back abortion rights and invalidate the Affordable Care Act. Democratic Senator Dianne Feinstein has suggested Barrett’s religious views would influence her rulings, which had previously made her a hero to religious conservatives who denounced what they called unfair attacks on her faith.
In an early 2017 law review essay, when reviewing a book related to the Supreme Court ruling on the Affordable Care Act, Barrett criticised Chief Justice John Roberts’ rationale that saved the law in 2012. “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power,” she wrote.
In 2018, when the full 7th Circuit declined to reconsider a dispute over an Indiana abortion regulation requiring that the post-abortion fetal remains be cremated or buried, Barrett dissented with fellow conservatives. They focused instead on a more contentious provision, which made it unlawful for physicians to perform an abortion because of the race, sex or disability of the fetus.
In 2019, Barrett dissented alone when a 7th Circuit panel majority rejected a Second Amendment challenge from a man found guilty of felony mail fraud and prohibited from possessing a firearm under federal and Wisconsin law.
“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding legislatures did not strip felons of the right to bear arms simply because of their status as felons,” she wrote at the time. Barrett concluded, “Holding that the ban is constitutional does not put the government through its paces, but instead treats the Second Amendment as a second-class right.”
In June 2020, she dissented as a 7th Circuit panel didn’t alter a US district court decision, which temporarily blocked a Trump policy. This policy aimed to disadvantage green card applicants who apply for any public assistance. In dispute were federal immigration regulations regarding when an applicant would be deemed a “public charge” and ineligible for permanent status in the US.
In her dissent, Barrett wrote that the Trump administration’s interpretation of the relevant “public charge” law was not “unreasonable.” The 7th Circuit majority countered that her construction failed to take account of the immigrants who would “bear the brunt of the new rule.”
Should Barrett be confirmed before Election Day or shortly thereafter, one of her earliest cases would be on the latest Obamacare challenge. The court is scheduled to hear that case on 10 November 2020.
On Saturday, Democrats wasted no time announcing their opposition to Judge Barrett, taking aim at both her judicial philosophy and the rushed process to force her confirmation. “Justice Ginsburg must be turning over in her grave up in heaven, to see that the person they chose seems to be intent on undoing all the things that Ginsburg did,” said Senator Chuck Schumer of New York, the Democratic leader.
In a separate statement, he said that making the nomination so close to the election was a “reprehensible power grab” that was “a cynical attack on the legitimacy of the court.” For Trump, replacing Justice Ruth Bader Ginsburg with Judge Barrett gives him the chance to both thrill his conservative base and outrage his liberal opponents.
At a time when the country is already deeply divided, Barrett is bound to touch upon divisive issues like abortion, religion, guns and health care. The debate stemming from this news has allowed Trump to change the focus from the coronavirus pandemic and the way he handled it in the US. On her end, Judge Barrett has compiled an almost uniformly conservative voting record.
If she is confirmed, she would move the court to the right, making compromise less likely and putting the right to abortion at risk. The Senate Judiciary Committee will begin hearings on 12 October when Judge Barrett will have to answer an elaborate questionnaire, which the Senate will then examine.
The 22 members of the Judiciary Committee, which is led by Trump ally Senator Lindsey Graham, will hold confirmation hearings for four consecutive days. That is considerably faster than recent Supreme Court nominations, cutting the time to prepare for the hearings by about two-thirds in order for the new Supreme Court justice to be announced before the presidential elections.
After the hearings, the committee will vote on whether to recommend the nomination to the full Senate, a meeting Republicans have scheduled for 22 October. If that schedule holds, the full Senate will vote on whether to confirm Judge Barrett in the final week of October, just a week before election day.