WASHINGTON — Many Republicans have hailed Amy Coney Barrett, a favorite to be President Trump’s nominee to the Supreme Court, as a dream candidate: a relatively young woman of impeccable conservative credentials. The federal circuit court judge believes that life begins at conception. She is a critic of the Affordable Care Act, the Obama-era health care law that Trump wants badly to dismantle. She has upheld restrictive immigration statutes while protecting corporations from lawsuits.
But she has also been consistently against injecting politics into the business of judging, presenting a potential problem for those who see the Supreme Court as a means of achieving ends not possible through legislation.
“I would have had no interest in the job if the job was about policymaking and about making policy decisions,” she said last year in an address at conservative Hillsdale College. “If we reduce the courts to mere politics, then why do we need them? We already have politicians,” Barrett added a little later. “Courts are not arenas for politics.”
If she is indeed nominated, and if that conviction — expressed long before she became a Supreme Court favorite — holds, Barrett’s tenure could lead to a profound disenchantment.
Progressives are not so sure about Barrett’s aversion to politics. “Candidates don’t get on the Trump shortlist without having passed all the litmus tests, which boil down to ‘I will rule for the Republican Party,’” a staffer for a Democratic member of the Senate Judiciary Committee told Yahoo News.
Barrett was recommended to Trump by the Federalist Society, a conservative judicial activist organization. Her backers include the Susan B. Anthony List, which fervently opposes abortion rights.
Yet lifetime tenure comes with immunity to political pressure. That, and the enormous import of each case heard by the Supreme Court, can uncouple judges from the very political forces that helped install them on the high court.
The right has recently experienced this with Chief Justice John Roberts, whom George W. Bush nominated to the Supreme Court in 2005.
Writing in the New York Times shortly after the nomination, legal scholar Jeffrey Rosen described how Republicans hoped Roberts would use “his intelligence and charm on behalf of his deeply conservative views to move the court far to the right.”
It didn’t turn out that way. On abortion, immigration and health care, he has issued opinions that handed victories to the court’s liberals. Each time he has done so, the howls from the right have grown louder, despite the fact that he has sided with conservatives in major cases on voting rights and campaign finance.
“Chief Justice John Roberts has been a disappointment to conservatives,” Vice President Mike Pence said in August.
There is no way to know whether Barrett would be a similar disappointment. For one thing, she hasn’t been selected yet, though she does appear to be the frontrunner (Trump said he will announce his selection on Saturday afternoon). And past is rarely prologue for the Supreme Court, whose uncommon pressures can reshape seemingly solid convictions. Much as progressives may loathe Brett Kavanaugh, who won a seat to the high court in 2018 despite testimony accusing him of sexual assault, some now see him as a backfield tackle keeping an emboldened conservative bloc at bay.
This much is clear: Barrett plainly believes that judging is a sacrosanct business upon which the unseemly reality of politics should never intrude. It is a belief she held long before she appeared on President Trump’s list of potential Supreme Court nominees. And she has maintained that belief even after being one of the finalists for the nomination that eventually went to Kavanaugh.
(Trump was especially impressed by Kavanaugh’s pedigree, which includes degrees from both Yale University and Yale Law School. Barrett earned her undergraduate and law degrees from Notre Dame; people familiar with the matter say her interview with Trump in 2018 was a disastrous affair, with the president apparently unconvinced that she looked the part. That has been an important criterion in his nominations to top government posts.)
“I conceive of justices as being driven by first-order commitments to constitutional methods rather than solely by partisan political preference,” she wrote in a 2013 article for the Texas Law Review. Later in the same article, she wrote that “partisan politics are not a good reason for overturning precedent. But neither are they a good reason for deciding a case of first impression.”
The word “precedent” is especially loaded when it comes to abortion. Precedent, on that issue, is Roe v. Wade and Casey v. Planned Parenthood of Pennsylvania, both of which outlined conditions under which an abortion could be performed. Republicans’ judicial nominees worried that they will be depicted as abortion foes often make overtures about respecting precedent. They usually do so when pressed in a congressional hearing room, not in their own academic writings.
Barrett clerked for two conservative legal icons: Antonin Scalia of the U.S. Supreme Court and Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit, often known as the second-most-important court in the country. The careers of both men are marked by an adherence to conservative principle — but not necessarily to conservative politics. (Scalia died in 2016; Silberman is now a senior judge on the D.C. circuit court.)
Barrett has written and spoken admiringly of Scalia’s conservatism on many occasions. Paradoxically, that could prove a problem to conservatives, since that conservatism was rooted in a philosophical understanding of the law, not a desire to achieve the policy goals of political conservatives.
David M. Dorsen, the author of a book on Scalia’s liberal undercurrents, wrote in the Washington Post in 2017 that “Scalia was personally a committed conservative and originalist,” much as Barrett is. “Yet Scalia’s commitment to his jurisprudence led him to write many important liberal opinions, although they are less well-known than his conservative decisions, with their often provocative language.”
An attorney who was formerly a senior staffer in the West Wing argued that it was liberals, not conservatives, who sought to “import questions of politics into the task of judging.” He said Barrett has displayed a “commitment to a conservative jurisprudential approach.”
Some of the president’s supporters have pushed him to instead select Barbara Lagoa, a conservative judge on the 11th U.S. Circuit Court of Appeals. But others on the right worry that Lagoa has not shown a sufficient commitment to overturning Roe.
Barrett has not issued major abortion-related opinions in her brief time as a circuit court judge. But she has said that Roe is unlikely to be overturned, while at the same time allowing that greater state-level restrictions are possible.
The question is how any personal beliefs she has would translate into a judicial philosophy, as some hope and others fear.
More than most other judges, Barrett has thought deeply about the intersection of belief and jurisprudence. In 1998, she co-authored a Marquette Law Review article titled “Catholic Judges in Capital Cases,” in which she discussed how Catholic judges could square the opposition of the church to the death penalty with their duty to rule fairly in a death penalty case.
She noted that Jewish and Quaker jurists could have the same objections. In a complex argument that touched on Catholic doctrine, legal history and moral philosophy, Barrett concluded that judges “cannot — nor should they try to — align our legal system with the Church’s moral teachings whenever the two diverge.”
The complex and sometimes contradictory ways in which political realities, judicial arguments and personal beliefs overlap have continued to consume Barrett in recent years. In 2016, for example, she presented a complex argument in the Penn Law Review that drew a distinction between the courts, which may well decide to leave precedent alone, and Congress, whose “political actors” can take legislative action whenever they sense the will of the people pressuring them to do so. The courts are immune to such pressure, she suggested.
That same year, she spoke at a symposium at Jacksonville University. The presidential election was then a week away. There was an empty seat on the Supreme Court, that of her mentor Scalia, who had died unexpectedly earlier that year. President Barack Obama had tried to nominate Merrick Garland, the chief judge of the D.C. circuit court — a colleague of Silberman, for whom Barrett clerked — to that seat, but congressional Republicans prevented him from doing so.
(Speaking shortly after Scalia’s death, Barrett argued on CBS News that it would be improper to have his seat go to a left-leaning Obama nominee. Now, of course, Barrett herself stands to take the seat of the consistently liberal Ginsburg.)
Barrett was asked to comment on the ideological requirements for a potential justice that both Trump and Hillary Clinton had outlined.
Such requirements “are what’s wrong with our nomination process,” Barrett answered, criticizing politicians who she said were eager to appoint judges who would accomplish their policy objectives, whether on abortion or racial matters. “The candidates are talking to the bases and talking to the electorate and saying, ‘Signal: I’m going to put people on the court who share your policy preferences.’”
That, Barrett said, is “not the right qualification for a justice. We shouldn’t be putting people on the court that share our policy preferences. We should be putting people on the court who want to apply the Constitution.”
For progressives, an originalist or textualist approach to the Constitution espoused by Barrett would accomplish precisely the same conservative policy goals she says have no business in the courtroom.
“Trump and others have a belief that they will deliver for them,” said Lena Zwarensteyn, who directs judicial campaigns at the Leadership Conference on Civil & Human Rights. “If they’re on that list, it’s because of that. That is what they’re being put there to do.”
Barrett’s supporters insist it is not so and that she is not merely espousing the careful arguments every judge has learned to deploy since the failed nomination of Robert Bork.
“Any of President Trump’s three Supreme Court finalists have a proven track record of following the law, without fear or favor,” said conservative activist Mike Davis of the Article III Project, which works to confirm conservatives to federal judgeships. The other two finalists are Lagoa, a Florida judge of Cuban heritage, and Joan Larsen, a former University of Michigan legal scholar who now sits on the Sixth Circuit Court of Appeals.
Barrett has continued to voice her no-room-for-politics stance even after coming close to being nominated in 2018.
“The law simply does not align with a judge’s political preference, or personal preference, in every case,” she said last year at Hillsdale, in remarks she likely knew would be scrutinized were she to be eventually nominated to the Supreme Court. “And so it will be the case that judges have to make hard decisions, and that they have to decide cases in ways that yield outcomes that are not the outcomes they would prefer.”
Progressives were steadfastly unimpressed by Barrett’s assurances of intellectual independence. “If I had a nickel for every Republican nominee who made a similar promise and then went on to overturn precedent,” says Alliance for Justice founder Nan Aron, “I’d be one rich lady.”
Cover thumbnail photo: Photo illustration: Yahoo News; photos: Reuters, Getty Images
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