In a vacuum, Amy Coney Barrett would be seen by all as a highly capable, fully qualified choice to serve as a justice of the U.S. Supreme Court. She has been a Supreme Court clerk to the late Antonin Scalia, a law professor at George Washington University and Notre Dame, and, since 2017, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals. Her credentials are impeccable.
But her nomination by President Donald Trump doesn’t come in a vacuum. It comes as the result of the unexpected death of Justice Ruth Bader Ginsburg. The vacancy gave the president the chance to try to get his third Supreme Court appointee confirmed, possibly before the presidential election — and, if not, in the lame duck session of Congress that will follow, even if he should lose to Joe Biden.
We think his decision to make a selection now and the Republican-controlled Senate’s evident eagerness to proceed are unwise. In 2016, Senate Republican Leader Mitch McConnell refused to allow hearings, much less a vote, on Barack Obama’s nomination of Merrick Garland — contending that an election year was the wrong time for a president to fill a vacancy. Today it’s Democrats making a version of that argument, while Republicans have abandoned it.
But those who have power can use it to get their way, and nothing in the Constitution says the president or the Senate must take into account the electoral calendar when it comes to Supreme Court appointments. So we took it as given that whomever Trump chose would soon be confirmed.
That being the case, and based on what we know so far, Barrett, 48, appears to be an excellent choice. We hope the Judiciary Committee will provide a platform for her to explain how she approaches constitutional and statutory issues and address any questions or criticisms that senators may have. The hearings should serve as an opportunity for both lawmakers and the public to consider what she would bring to the court, not a political dog and pony show of gotcha questions from senators who are supposed to be public servants, not TV stars. Too much to wish for? Probably.
We don’t expect grave accusations to surface, as they did when Brett Kavanaugh was nominated, but it’s better to learn all pertinent information before a nominee is on the court, not after.
One topic that will be on many minds is the 1973 Roe v. Wade decision that established constitutional protection for the right to abortion. There appear to be at least four votes on the court for rolling back that decision, and Barrett could be the fifth.
How she would rule, though, is by no means certain. In 2013, she said it was “very unlikely” that the court would reverse itself: “The fundamental element, that the woman has a right to choose abortion, will probably stand.” But she has indicated that not all precedents deserve equal deference. “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 2013.
The issue of her Catholic faith arose when she was nominated to the appeals court. Some senators distastefully grilled Barrett about an article she co-wrote more than 20 years ago, arguing that a Catholic judge who could not in good conscience impose the death penalty should recuse herself and let another judge take over. That sounded to us like a sound recommendation, not a platform for criticism. In her confirmation hearings, she said: “It is never appropriate for a judge to impose that judge’s personal convictions, whether they arise from faith or anywhere else, on the law.” But it was clear several senators, including Sen. Dick Durbin, considered her faith-based conservatism a drawback, not an attribute. That’s a questionable bridge these hearings ought not cross.
Democrats would obviously prefer a judge with a more liberal view of the Constitution and a more expansive conception of the court’s role. But the outcome of the 2016 presidential election, the GOP’s dominance of the Senate, and the vagaries of fate have combined to make Barrett the likely next justice. We look forward to learning more about her.
