the law

Trump Didn’t Choose Barrett — She Was Chosen for Him

President Donald Trump and Judge Amy Coney Barrett. Photo: Jabin Botsford/The Washington Post via Getty Images

In Amy Coney Barrett, Donald Trump has found a Supreme Court nominee to atone for his many sins — his unfitness for office, his abuses of power, his disdain for the rule of law and basic decency. Her nomination on Saturday to fill the seat vacated by Justice Ruth Bader Ginsburg is at once a stroke of luck and preordained.

On the one hand, no one was expecting a new vacancy so close to the election, let alone one amid a crippling pandemic and an economy in shambles. For a president who loves to change the subject, Barrett is a distraction like few others. On the other, Barrett, a devout Catholic, was always a favorite among social conservatives and the religious right to ascend to the nation’s highest court — a version of her mentor, the late Justice Antonin Scalia. “The cake was baked,” as one Senate aide put her pre-nomination embrace to Axios.

Together in the Rose Garden, both she and Trump basked in the glory of the moment, a singular opportunity to “dramatically flip the balance of power” on the Supreme Court, as Barrett herself explained during television remarks in 2016, the year Mitch McConnell and Senate Republicans denied President Obama the hearing for his nominee that Trump is now claiming. McConnell’s gambit, arguably, won over conservatives who couldn’t abide the thought of Trump in the Oval Office. Whether it’ll work again will fall to voters. “I’m deeply honored by the confidence that you have placed in me,” Barrett told Trump during brief remarks on Saturday.

With her as the ninth justice, a five-to-four conservative majority with Chief Justice John Roberts as the Supreme Court’s center would become a six-to-three conservative supermajority with Kavanaugh in the middle. At 48, Barrett is also the youngest nominee to the Supreme Court since the rough ascension of Clarence Thomas — who, as Democrats’ luck would have it, also happened to replace a constitutional giant, Thurgood Marshall. Equality under the law, if not Ginsburg’s own mark on the law, now hang in the balance.

But there was no room at Saturday’s coronation for dire predictions. At the White House, Barrett ticked all the boxes. She spoke adoringly of her husband and seven children. She paid tribute to Scalia, boldly proclaiming that “his judicial philosophy is mine.” And, as any woman judge should, she praised Ginsburg’s stature in the law, acknowledging that flags in Washington are still flying at half staff on her behalf. “Should I be confirmed, I will be mindful of who came before me,” Barrett told the crowd. “She not only broke glass ceilings, she smashed them,” she added.

Like other nominees to the federal bench, Trump didn’t choose Barrett; she was chosen for him. Under the Constitution, he may be the appointing authority, the person whose signature adorns the 200-plus judicial commissions he has signed since becoming president. But in the end Trump is only a vessel, an instrument through which the Federalist Society, conservative legal activists, and a pliant Senate have made the judiciary a little bit more Trumpian — the average Trump judge is more conservative, if not ideological, than the median Republican appointee from generations past. A Trump judge bound by Supreme Court precedent can lament abortion as “a moral tragedy” and get away with it. In striking down COVID-19 restrictions, another may resurrect a precedent long ago dead and buried. And yet another may come to Trump’s rescue at every turn.

It is all this winning on judges — by all accounts Trump’s chief legislative achievement — that keeps Republicans beholden to him. The prospect of a Justice Amy Coney Barrett makes even ardent Never Trumpers look the other way. Mitt Romney falls in line. No failure of leadership or moral character — on COVID-19, the scourge of racism, the abuse of the levers of power — is too great for the promise of a federal judiciary remade in Trump’s image. The Senate, with McConnell at the helm, may not move to protect the election, pass new coronavirus relief, extend the deadline for the Census, or bolster the capacity of the U.S. Postal Service. But it’ll move heaven and Earth to ram Barrett through, even as voters are already charting the course of the next four years.

Hearings have already been scheduled for the week of October 12. Short of boycotting them, Democrats have few tools at their disposal. Attacks on Barrett’s religion will fail and should be off limits. The same goes for attacks on her womanhood, her family, or her credentials, which are sterling by any objective measure. Fair game are her views on Roe v. Wade, judicial precedent, and her own record as an appeals judge — which has already shown signs of being even more conservative than other Republican appointees on the U.S. Court of Appeals for the Seventh Circuit, where she has served since 2017.

If Senate Democrats are feeling bold and want to keep Senator Dianne Feinstein from unnecessary gaffes, they’d be wise to follow the Kavanaugh precedent and have appointed counsel lead all the questioning. That worked well during aspects of Trump’s impeachment inquiry. The public will be well served by able cross-examining more than by all the grandstanding and pontification that are typical of Supreme Court confirmation hearings, which can be as chaotic as they are unilluminating. It’s not like Barrett hasn’t expressed views worth addressing. “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” she wrote in a legal journal in 2013.

I asked Stephen Gillers, a New York University law professor who specializes in judicial ethics, what, if anything, Barrett’s acceptance of the nomination, amid so much calamity in American life, says about her character and temperament. He told me in an email that that was beyond his expertise. But he added that he thinks that the law of recusal, which requires judges and justices to step aside in cases where their impartiality might be reasonably questioned by the public, would apply to a Justice Amy Coney Barrett — based on Trump’s own position that he expects a nine-member Supreme Court to deliver for him come Election Day.

“Trump appears to have announced his expectation that she will vote for him if Trump v. Biden reaches the court,” Gillers told me. “It is in the wake of that expectation that she was chosen. Chosen in September, she may [be] on the court that decides Trump’s fate in November or December. In these circumstances, to the public it looks like Trump, facing a court contest, was able to pick the judge who would decide it. Wouldn’t we all like to pick the judge who will decide our fate? I think that’s how the public will reasonably see it.”

Trump Didn’t Choose Barrett — She Was Chosen for Him