Amy Coney Barrett: the conservative judge set to be Trump’s most important legacy
If you are a Democratic Senator, desperate to prevent a conservative takeover of the US Supreme Court, you have a serious problem with President Trump’s nominee, Amy Coney Barrett.
Aged just 48 and likely to be on the bench for at least the next 25 years, Barrett is one of the brightest and most qualified judges in America. She has clerked for a federal judge and a Supreme Court justice. She has worked in chambers in the Mid-West and in Washington as both prosecutor and defender, resulting, in 2017, in her appointment to the Chicago-based seventh circuit of the US Court of Appeals.
Her scholarly writings, as well as her judgments, have featured in numerous academic journals. She is recognised as an authority on the Constitution and on the interpretation of statutory law. As a teacher, she has enjoyed a loyal and unbroken following by both peers and students. She won “Distinguished Professor of the Year” three times at Notre Dame University, from which, decades earlier, she graduated first in her class at every stage of her legal education.
She is also, by all accounts, an extremely nice woman, a faithful and loving wife and a devoted mother. She and her husband have five children of their own, one of whom has Down’s Syndrome. The couple later rescued two children from Haiti and adopted them as their own. If she doesn’t bake apple pie for her family each evening, it is only because she is too busy doing good.
Nor is she a daughter of privilege. Born in New Orleans on January 28, 1972, she was one of seven children to an attorney working for the Shell Oil Corporation and his wife, a teacher of French. After high school and college in Tennessee, where she was a standout student, she went on study at Notre Dame Law School, from which she emerged, summa cum laude, in 1997. Thereafter, her rise, professionally and academically, was dizzying, culminating in the moment when the President’s talent scouts identified her as perfect in terms of gender, legal achievement and political and religious outlook to complete their realignment of the Supreme Court along lines laid down by the libertine Donald J Trump.
You would have to say, based on all of the above, that she would make a near-perfect candidate for the highest court in the land, who in normal circumstances would sail through the confirmation hearings with flying colours. Indeed, it would not be stretching a point to argue that the Amy Coney Barrett I have just described could more easily have been proposed by none other than former Vice President Joe Biden, Trump’s Democratic rival for the Oval Office
This, however, is where it gets complicated. Leaving aside the clear impropriety of a rushed nomination just weeks in advance of a Presidential election, there is also the small matter that Judge Barrett could plausibly have been lifted from the pages of The Handmaid’s Tale, the dystopian novel by the Canadian writer Margaret Attwood.
The fact that she is a convinced Catholic is not the issue. The same is true of Biden, a mass-goer all his life. It is her membership of The People of Praise, a small, tightly-knit charismatic group, founded in South Bend, Indiana, that raises the hackles of those who insist on the separation of Church and State.
Barrett is that rare thing: a Catholic pentecostalist who believes in speaking in tongues and the literal truth of biblical prophecy. She endorses the sect’s teaching that marriage and the family are founded on the indissoluble commitment of one man and one woman. Most controversially – and this is where Attwood comes in – she accepts that the highest religious office to which her sex can aspire is that of “handmaiden,” a woman who in supporting religious orthodoxy within the family and community, acknowledges her husband as both head of the household and spiritual guide.
“Always keep in mind,” she told law graduates at her alma mater in 2006, “that your legal career is but a means to an end … that end is building the Kingdom of God.”
It almost goes without saying that Barrett – an enduringly beautiful woman who looks in repose as if she had been painted by Titian, or just possibly Caravaggio – is vehemently opposed to abortion and same-sex marriage. While she has yet to vouchsafe her views on transgender rights, it seems safe to say that she is not in the liberal camp. No wonder, then, that LGBTQ activists across America are mobilising to protest her nomination.
The biggest issue on which she could be called upon to pronounce in the years that would follow her accession to the Supreme Court is – what else? – that hardy annual of American jurisprudence, Roe v. Wade. Dating back to 1973, Roe v. Wade is the foundational judgement that underscores what in the US is referred to as a woman’s right to choose. Barrett is opposed, root and branch, to abortion, just as she is to artificial contraception, and for much the same reason – that it separates sex from procreation and the right to life. But it is the possibility that she might add her voice to the right-wing, fundamentalist clamour for a revocation of the 1973 ruling that has liberals everywhere up in arms.
The Senate hearings are expected to turn on this. It is an odd fact that Barrett – who would be the only Supreme Court Justice not to have been educated at Harvard or Yale – has never been called on to rule on abortion. The closest she came was in 2018, when as an Appeals Court judge she voted against an attempt by secularist supporters of abortion rights in Indiana to throw out a law requiring that foetal remains should either be cremated or buried. But back in 2013, she wrote that Roe v. Wade had, “by way of judicial fiat,” created a framework for abortion on demand that has since affected everything from federal and state elections to the federal judicial nominations process.
What cannot be said with any certainty is that Barrett, sitting as the eleventh member of a court chaired by Chief Justice John Roberts, with an inbuilt 6-3 conservative majority, would seek to bring Roe v. Wade to a head, or even vote for its displacement.
The risk, indeed the likelihood, is that events would take a hand, which is when the trouble would start.
On a number of occasions, Barrett has said that judges must vote on statutes as reposed in law and not on the presumed motives of those who secured their passage through state assemblies or Congress. We are asked to take from this that while she might find Roe v. Wade morally repugnant, she would vote in accordance with the the law as laid down, not her personal feelings. What her interpretation of the law might, in extremis, prove to be remains unknown.
As it happens, there have already been indications that right-wing judges do not invariably follow their instincts. Justices Brett Kavanaugh and Neil Gorsuch – both controversial Trump nominees – have on several occasions surprised those who expected them to be the hardest of hardliners. Barrett might be expected to follow this pattern, setting her private morality to one side so long as the Constitution and relevant legal statutes appeared to her to demand it.
The question Democratic Senators will be asking themselves is, can they afford to take the chance? Ought they to give the benefit of the doubt to a woman whose personal and Christian convictions are so dramatically at odds not just with Woke America but with the settled opinions of at least two generations of the electorate? Barrett’s elevation would transform the balance of the court. The court, in turn, could transform what passes for societal consensus on abortion and marriage while also, perhaps, reinforcing the second amendment on the right to bear arms and the right of rich individuals and corporations to influence the legislative process.
Judge Barrett will almost certainly undergo a baptism of fire when the Senate hearings take place. The Democrats will oppose her from every possible angle, starting with the unseemly nature of her nomination, with Justice Ginsburg barely in her grave, before moving on to a forensic dissection of her religious convictions intended to reveal her as more in keeping with the America of the Salem witch trials than with a twenty-first century liberal democracy.
In the end, it will come down to the numbers. The only way Barrett’s candidature will be rejected, short of Trump pulling his nomination, will be if three or more Republican Senators can be convinced to vote with the minority. And how likely is that? With the polls pointing to a Biden victory on 3 November, Republicans in 2020 are concerned with little beyond their own survival, which means, above all, playing to their far-right ideological base.
In pursuit of this, Amy Coney Barrett turns out to be Trump’s unlikely ace in the hole: a brilliant jurist and a woman of impeccable moral character. There can be few in public life more unlike the President than this small-town fundamentalist. But there can also be few who will owe him more. Long after Trump has entered folk lore, she could be his most enduring legacy.