President Trump’s pick to fill the Supreme Court seat left vacant by Justice Ruth Bader Ginsburg is one that will elate social conservatives. If she is confirmed, as expected by the Republican Senate in the coming weeks, Amy Coney Barrett could cement the court’s conservative lean for years.
Barrett is a federal judge on the U.S. Court of Appeals for the 7th Circuit in Chicago. She’s had a swift rise in the judiciary, from being a law professor at the University of Notre Dame in 2017, to a seat on one of the highest federal courts, to now being the president’s nominee for the Supreme Court.
Here are four political takeaways from her nomination.
1. This is a pick designed to avoid a Kavanaugh-like controversy
Republicans already have a political fight on their hands to push through her confirmation this close to an election. The last thing they want is a nominee who will run into controversy of a personal nature, like the one over sexual assault allegations against Justice Brett M. Kavanaugh.
That drove Barrett’s pick. She is Trump’s first female nomination for the court. She is a mom of seven children, two of whom are adopted from Haiti and one of whom has Down syndrome.
Trump dedicated significant time to her family in his remarks: “If confirmed, Justice Barrett will make history as the first mother of school-aged children ever to serve on the U.S. Supreme Court,” he said to applause.
So did Barrett: “While I am a judge, I’m better known back home as a room parent, carpool driver and birthday party planner.”
As Trump handed over the mic to Barrett, he ad-libbed to uneasy laughter: “This should be a straightforward and prompt confirmation. Good luck. It’s going to be very easy. It should be very quick. I’m sure it will be extremely noncontroversial. Well, we said that last time.”
2. It’s not immediately clear what her nomination means for abortion rights
Barrett personally opposes abortion and has talked openly about her Catholic religion with language that has irked some Senate Democrats. Judicially, she’s in line with the late conservative Supreme Court justice Antonin Scalia, for whom she clerked, in interpreting the Constitution as she thinks the founders originally intended.
But her social conservative convictions and the fact her nomination would tilt the court 6-3 conservative-to-liberal don’t automatically mean abortion rights’ days are numbered in America.
She could play a part in overturning Roe v. Wade, should the right court case come before the justices — and abortion opponents are certainly trying to grab the court’s interest by passing laws in states that ban abortion before most women know they’re pregnant.
But Barrett has previously acknowledged that the legal right to abortion is settled law. “The fundamental element, that the woman has a right to choose abortion, will probably stand,” she said as a major abortion case was before the court in 2013.
As The Fix’s Aaron Blake wrote in 2018, when Barrett was a contender for that open Supreme Court seat, those comments suggest she abides by a commonly accepted legal doctrine, stare decisis, that suggests long-settled court cases are just that — settled.
More immediately, Barrett will be under political pressure not to say in her confirmation hearing that she’s going into this job with an ideological bent, particularly on abortion. She previewed how she might do that Saturday: “The president has nominated me to serve on the United States Supreme Court, and that institution belongs to all of us. If confirmed, I would not assume that role for the sake of those in my own circle, and certainly not for my own sake. I would assume this role to serve you.”
There are two Republican senators in particular she’ll have to keep in mind — Susan Collins of Maine and Lisa Murkowski of Alaska — who side with protecting abortion rights. (Those two have also suggested they could vote against Trump’s nominee because it’s coming too close to an election.)
3. Health-care coverage is going to be a major political issue in her confirmation fight
If Barrett gets confirmed before the election, it’s possible she’ll be seated in time to help decide if the Affordable Care Act should effectively stand, a monumental case scheduled to be heard about a week after the election.
The challenge brought by Republican attorneys general and supported by the Trump administration argues the law shouldn’t stand after Congress zeroed out the tax penalty for people who don’t have health insurance when it passed its tax overhaul in 2017.
Barrett doesn’t have a long judicial record to scrutinize. But she has written critically of a decision by the Supreme Court to uphold Obamacare.
“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote of the 2012 case, arguing the decision did not show judicial restraint.
She’s expressed concern about legislatures in language that matches conservative orthodoxy about government overreach. She’s argued the courts have a role to play in protecting Americans from that: “They provide the forum in which citizens seek protection of their natural rights from legislative infringement,” she wrote in 2017 as a law professor.
Expect Democrats, who see health care as a winning political issue, to use these comments to frame Barrett as a threat to Americans’ access to it.
Democratic presidential nominee Joe Biden’s main criticism of Barrett was framed that way: “She has a written track record of disagreeing with the U.S. Supreme Court’s decision upholding the Affordable Care Act,” he said in a statement.
4. This doesn’t appear to change the politics of confirming a nominee
While confirming any justice this close to an election is politically controversial and against public opinion (57 percent of Americans said in a Washington Post-ABC News poll that they want the winner of the November presidential election to nominate Ginsburg’s successor), the opportunity to cement the court’s conservative lean is too good for Republicans to pass up.
Plus, Senate Republicans don’t need bipartisan support or even all 53 members of their caucus to get Barrett on the court. Just 50 Senate Republicans voting yes, plus Vice President Pence casting the tie-breaking majority vote, will be enough.
During Barrett’s Senate nomination in 2017 to her current seat, Democrats questioned how she has spoken about her Catholic faith. Sen. Dianne Feinstein (D-Calif.) drew huge backlash from conservatives over saying to Barrett, “The dogma lives loudly within you.”
Republicans pointed to that as bias, and accused Democrats of applying an unconstitutional religious test to potential judges. Barrett got confirmed with 55 votes. The point is that she has been vetted and through a tough process before.
On Saturday, Barrett received immediate praise from perhaps the person most important to getting this nomination through, Senate Majority Leader Mitch McConnell (R-Ky.). “President Trump could not have made a better decision,” he said in a statement. A potential swing vote, Sen. Mitt Romney (R-Utah), described her in a statement as a “highly-respected jurist with distinguished legal and academic credentials.”