In this May 19, 2018 file photo, Amy Coney Barrett, United States Court of Appeals for the Seventh Circuit judge, speaks during the University of Notre Dame’s Law School commencement ceremony at the University of Notre Dame in South Bend, Indiana. (Robert Franklin /South Bend Tribune via AP, File)
If Barrett is confirmed, as expected, the 48-year-old will give conservatives a 6-3 majority on the Supreme Court—a majority that could endure for a generation.
She’s a favorite of social conservatives and anti-abortion activists, who hope she might give the court the majority needed to overturn the half-century-old Roe v. Wade decision that made abortion legal nationwide. Barrett, who has been on Trump’s shortlist for potential Supreme Court nominations for a few years, was a clear favorite and emerged as the immediate front-runner when Ruth Bader Ginsburg died last Friday.
Since then, Republicans have indicated they’ll ram through any confirmation before Election Day. No previous Supreme Court justice has ever been confirmed so close to an election.
That means Barrett’s first task could turn out to be acting as the deciding vote on any post-election court battles over voting. It’s a potentially crucial fight in a year that’s seen the most voting-related litigation in recent history—and one that both parties are gearing up for if the election winds up being close. It appears Barrett would also be on the court in time for its Nov. 10 hearing of oral arguments in a GOP attempt to overturn Obamacare as unconstitutional.
Senate Judiciary Committee Chairman Republican Lindsey Graham has signaled that he’ll start committee hearings in early October ahead of a confirmation vote planned for late October, potentially just days before the election. Barrett is expected to begin meeting privately with judiciary committee members next week, though it’s unclear if Democrats will agree to participate in that tradition.
It looks like the GOP will have the votes to confirm Barrett, barring a major bombshell that didn’t come up in her 2017 confirmation hearings. Republicans have a 53-47 majority in the Senate, and with a tie-breaking vote in Vice President Mike Pence, the party can afford to lose three votes and still confirm her.
Only two Republican senators—Sens. Susan Collins, from Maine, and Lisa Murkowski, from Alaska—have expressed any misgivings about confirming a justice before the election. On top of that, Barrett was confirmed to the U.S. Court of Appeals for the Seventh Circuit by a 55-43 vote in 2017, with every Republican voting for her.
Republicans’ decision to rush a confirmation, without letting the American people decide who they want picking the crucial lifetime appointment, comes just four years after Republican Senate Majority Leader Mitch McConnell and the rest of the GOP refused for nearly a year to give a hearing to President Obama’s choice for the Supreme Court after Justice Antonin Scalia’s 2016 death.
And while the outcome of the vote on Barrett’s confirmation isn’t that much in doubt, how the fight over her nomination plays out could have major ramifications on the election, especially in the battle for Senate control.
Polls show that a solid majority of Americans want Republicans to wait to confirm Ginsburg’s replacement. A Friday poll from ABC and the Washington Post found that 57% of Americans wanted whoever wins the 2020 election to pick her replacement, while just 38% wanted Trump’s nominee to be confirmed.
But the poll also showed that the Supreme Court fight wasn’t a top voting issue for most Americans. And since Democrats’ road to the Senate majority runs mostly through conservative-leaning states like Iowa, Montana, and North Carolina, it’s unclear exactly how the confirmation process will impact the fight for the upper chamber of Congress.
Barrett clerked for Scalia and spent a few years at white-shoe law firms in Washington, D.C., before leaving for academia.
She’s also a proponent of originalism, the conservative doctrine that the Founding Fathers’ original intent must be adhered to unless the Constitution has been amended.
“The Constitution’s meaning is fixed until lawfully changed; thus, the court must stick with the original public meaning of the text even if it rules out the preference of a current majority,” she wrote in a 2017 law review article.
In that same article, she suggested that she would have ruled Obamacare unconstitutional and that “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Barrett has also been critical of the concept of stare decisis—the idea that past Supreme Court precedent couldn’t be challenge —a sign that she might not have any problems overturning past rulings like Roe.
She’s said she believes life begins at conception, and in her short time on the bench has made two rulings that curtailed abortion rights.
Barrett’s also a deeply religious Catholic whose membership in the Catholic-Pentecostal organization People of Praise drew scrutiny during her confirmation to the Seventh Circuit. The close-knit organization’s members swear a lifelong loyalty oath and get a same-sex adviser who they’re accountable to, known as the “head” for men and until 2018 the “handmaid” for women. The New York Times reported in 2017 that those advisers weigh in on who their charges should date or marry, where to live, whether to take a job or buy a home, and how to raise children.
During her contentious 2017 confirmation hearing, conservatives accused Democratic Sen. Dianne Feinstein, from California, of anti-Catholic bigotry for telling Barrett, “The dogma lives loudly within you.”
Republicans hope they can bait their foes into doing so again, turning the Supreme Court hearing into a culture war. That could potentially help them in some key Senate races—even if it’s a wash for the presidential fight—and distract from the ongoing coronavirus crisis and ensuing economic recession.
But Democrats have strongly signaled that they want to avoid similar missteps this time and keep the focus on three things: their view that the GOP is stealing a Supreme Court seat without giving the American people a voice in the matter, the possibility that Barrett could overturn Obamacare and threaten Americans’ healthcare in the middle of the coronavirus pandemic, and the threat she poses to abortion rights.