Conservatives Should Unite Behind Judge Amy Coney Barrett for the Supreme Court
Many Americans were blindsided when a Supreme Court vacancy opened up last week. One conservative lawyer has been weighing the President’s list for two years.
Days before celebrating our nation’s 242nd birthday, Americans received a long-awaited gift. Associate Justice Anthony Kennedy announced his retirement last Wednesday. The respected jurist has been controversial as the “swing vote” on the U.S. Supreme Court.
For the first time in two generations, the nation’s highest court could have a solid conservative majority. A compelling case can be made that the next Supreme Court selection will be the single most important decision President Trump will make.
President Trump is deciding on his nominee this week. He plans to announce the nominee on July 9. If this next nomination is a miss, history informs us that another such opportunity may not arise for 30 more years.
This week, most Americans are going to focus on fireworks and barbeque with family and friends. I hope to as well. Yet we cannot be silent in this hour, despite a charged political climate.
Indeed, we must see the Supreme Court as much more than politics. The impact of the nine Justices on culture, ethics and public morality cannot be overstated.
Whether or Not We Like It, The Court Matters
Constitutional conservatives rightly lament how the high court has become the center of national political power.
In June 2015, the Obergefell decision purported to impose same-sex marriage across our land. Dozens of state laws defining marriage as between a man and woman were declared unconstitutional, without any textual support in the Constitution. In a close 5-4 vote, Kennedy “swung” towards the left.
This is one of several controversial cases Kennedy decided. Now he is vacating his seat. Lest we forget, the Supreme Court decisions of Roe v. Wade and Doe v. Bolton in 1973 opened the door to the loss of 60 million American lives in the womb since then. The stakes could not be higher.
One of my dreams in life is to witness judicial renewal. We define it as restoring the Judiciary to the honorable role of deciding cases rather than legislating from the bench.
Accordingly, I have gladly researched all 25 names on the President’s Supreme Court list — especially those in the top tier. At this moment in history, I believe the one nominee all conservative constitutionalists should rally behind is Judge Amy Coney Barrett.
Many informed voices have arrived at this conclusion. On Thursday, eminent legal scholar Professor Robert George shared (but did not author) an article strongly backing Barrett as the nominee. Evangelical leaders praise her record of upholding religious liberty. Contributors at National Review and Washington Examiner have endorsed her.
Let’s review her record, then consider some of the popular objections to selecting her now.
Scalia Law Clerk Takes After Her Former Boss
A former law clerk to the late Justice Antonin Scalia, Judge Amy Coney Barrett, age 46, mirrors his judicial philosophy.
“What we want in a Justice [is] someone who applies the law,” she said in a 2016 lecture. “[A Justice] follows the law where it goes and doesn’t decide simply on the basis of partisan preference.”
Her judicial philosophy, honed at the University of Notre Dame where she served 15 years as law professor, is well known. Barrett has written extensively on the limited role of the judiciary, precedent and judicial intrusion into legislative affairs.
Last year, Barrett was nominated and confirmed to the U.S. Circuit Court of Appeals for the Seventh Circuit. During her Senate confirmation hearing, liberals had a miserable time. They turned to their tired playbook of personal attacks.
She was treated with hostility for her Christian faith, the same tactic used against other recent Trump nominees. Senator Dianne Feinstein famously said to Barrett: “The dogma [of your faith] lives loudly within you.”
Despite the drama, Barrett was confirmed with the votes of all Republicans and three Democrats. Those same three Democrats recently met with President Trump in a meeting to discuss his Supreme Court nominee.
Tonight @POTUS met w/ Senators Grassley, Collins, Murkowski, Manchin, Donnelly, and Heitkamp to discuss the Supreme Court vacancy. @POTUS team also talked w/ more than a dozen other Senators today as part of ongoing outreach to get views and advice from both sides of the aisle.
— Sarah Sanders (@PressSec) June 29, 2018
Less than three weeks after her confirmation, President Trump added her to his Supreme Court prospect list.
Life and the Scales of Justice
Barrett would be a solid constitutionalist on the Supreme Court. “A justice’s duty is to the Constitution,” she once wrote. “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.”
This brings us to one of society’s most contentious issues — that of abortion rights. Roe is surely the most-debated precedent, decided on faulty legal reasoning.
Having a holistic view of life issues brings into focus the compelling, compassionate life story of Amy Coney Barrett. She and her husband have seven children, one with special needs. Several were adopted from Haiti.
One never knows with certainty how a judge will decide a case before them. Yet conservatives must demand that a prospective nominee get the key questions right. One 2013 story from Notre Dame Magazine gives a good example.
It addressed the so-called “right to privacy” upon which Roe and Doe are founded. “Abortion deals with the life of a child, so it differs from the earlier case[s] relating to privacy,” stated Barrett in the article. Such reasoning shows how one may begin to question precedents that have long plagued our society.
Barrett also recognizes how society must uphold conscientious objection. In 2012, the new health care law mandated even Catholic sisters’ insurance cover drugs and devices that may induce abortion. A broad coalition of legal scholars responded. Barrett was one of those scholars.
It described how Obamacare required “purchase of a health insurance contract that provides abortion-inducing drugs, contraception and sterilization.” They responded: “This is a grave violation of religious freedom and cannot stand.” The Little Sisters of the Poor had their day in court and prevailed in the end.
Barrett understands the value of every life, and her view aligns with constitutional principles. She also has shown the courage to maintain these principles once on the Supreme Court.
Answering the Barrett Critics
There is always some degree of risk with any Supreme Court nominee. Yet in this former Scalia law clerk and Notre Dame law professor, we have someone as solid as Justice Neil Gorsuch. In fact, I believe she would be even better. And that’s saying a lot.
Because Barrett is female, talk has turned to Justice Ruth Bader Ginsburg. Some say Barrett should be “held in reserve” to replace Ginsburg, since the 85 year-old Justice might vacate the court soon.
This wager fails to account for the chance that Ginsburg may remain on the court during President Trump’s term. More importantly, if Barrett is the best prospect now — then she should be put on the court now. The chance missed now may never come around again.
Some in D.C. have voiced a concern that Barrett may be “young” or need “more judicial experience.” Another view is that her age and experience are beneficial and historically appropriate.
If confirmed, she would be older than Justice Clarence Thomas was when he was confirmed. Barrett would also have more judicial experience than Justice Elena Kagan had when she was confirmed. By Republican and Democratic standards, she clearly has the age and experience to serve on the Supreme Court.
A Clarion Call of Truth and Justice
We’ve seen this past term what a difference one vote can make. In a 5-4 decision, a California law forcing pregnancy help centers in California to advertise abortion was overturned.
More challenges to free speech — not to mention questions on the value and definition of life itself — will inevitably arrive at the nation’s highest court. Will a voice of compassion, wisdom and courage be there to tip the Supreme Court from activist to constitutional?
Conservative constitutionalists should seek to find the best nominee for the Supreme Court. Then we should humbly but boldly make our voices heard. This is our opportunity, duty and call.
So if headlines come up as you chat around the grill with family and friends this week, remember the name Amy Barrett. And enjoy the fireworks!
Phillip Jauregui serves as president of Judicial Action Group. See his complete analysis of Judge Amy Coney Barrett at their website.