President Donald Trump formally announced Amy Coney Barrett as his nominee to fill the Supreme Court vacancy following the death of Ruth Bader Ginsburg, a move that will solidify the high court’s turn to the right.
An appellate judge since 2017, Barrett appeared at a White House Rose Garden ceremony on Saturday along with her husband Jesse and her seven children.
Her selection is all but certain after reporters staked outside her Indiana home observed her and her family leaving and then tracked a flight from South Bend, IN to Washington.
If confirmed, Barrett will be the sixth conservative on the court, and could be a deciding vote when the justices hear oral arguments on Nov. 10 on a challenge to the Affordable Care Act, a fact that Democrats plan to highlight in the final weeks of the presidential election. She had criticized Chief Justice John Roberts 2012 opinion that upheld the health care law.
At Barrett’s confirmation hearing, expected to start the second week of October, she will likely face questions on whether she would overturn Roe Vs. Wade, as she has previously voted in favor of restrictions. She also is likely to face questions about remarks that she has made about same-sex marriage, after she defended justices who voted against the landmark Obergefell vs. Hodges ruling in 2015. She also has questioned whether federal Title IX protections extend to transgender Americans.
The most contentious flashpoint of her nomination is that she will be appearing at all before Senate hearings, given that Senate Majority Leader Mitch McConnell had blocked President Barack Obama’s nomination on the grounds that a vacancy occurred in an election year. Obama had nominated Merrick Garland to fill a vacancy following the death of Antonin Scalia in February, 2016, but McConnell refused even to give his nominee a hearing.
Trump’s choice of Barrett was widely seen as a way to shore up support among social conservatives, but also women. At the ceremony, he noted that Barrett would be the first female justice on the court who has school age children.
Barrett was a law professor at Notre Dame University from 2002 to 2017 and before that was in private practice and served as a clerk to Scalia, one of her mentors. Like Scalia, she has said that she is an originalist.
In her remarks at the White House, she praised Ginsburg. “Should I be confirmed, I will be mindful of who came before me.”
Ginsburg, however, dictated a statement to her granddaughter several days before her death that “my most fervent wish is that I will not be replaced until a new president is installed.”
On CNN, Jeffrey Toobin said that the differences in judicial philosophy between Barrett and Ginsburg “could not be more different.” Although he said that Barrett’s record and personal story are impressive, so too was that of Garland.
Democrats signaled that they planned to focus their opposition to her nomination by focusing on the threat to the Affordable Care Act. The Trump administration is backing the challenge to the law, and overturning it in its entirety would jeopardize its protections for preexisting conditions.
“A vote for Judge Amy Comey Barrett is a vote to eliminate health care for millions in the middle of a pandemic,” Senate Minority Leader Chuck Schumer (D-NY) wrote on Twitter shortly after her nomination was announced.
Democratic nominee Joe Biden also focused his comments to the potential impact on healthcare.
“The American people know the U.S. Supreme Court decisions affect their everyday lives,” Biden said. “The United States Constitution was designed to give the voters one chance to have their voice heard on who serves on the court.”
Recent polls show that a majority of the public wants to seat to be filled by the winner of the Nov. 3 election. But Democrats still face potential fault lines in how they frame the opposition to Barrett. Republicans have already been accusing opponents of the nomination of being anti-religious or anti-Catholic, even though they base their claim largely on a comment that Sen. Dianne Feinstein made during Barrett’s confirmation hearing for the appellate court in 2017. Questioning her over Roe Vs. Wade, Feinstein said, “The dogma lives loudly within you.”
But others have pushed back against the idea that criticism of Barrett’s views is anti-Catholic, especially given that practicing Catholics in the country run the ideological spectrum. Biden, for example, would be only the second Catholic president in history if he is elected.
James Martin, a Jesuit priest and editor at large of America magazine, wrote, “Something bound to be discussed as the Senate questions #AmyConeyBarrett. On the one hand, anti-Catholicism is very real. On the other, not every question directed to a Catholic or every critique of the church is anti-Catholicism.”
Trump predicted that Barrett’s confirmation is “going to be easier than you might think.” He wants a confirmation before the election, and even suggested that the court needed all nine members in case of a challenge to the results.
What is getting less attention is Barrett’s views of business and regulation, as the conservative bent of the court has favored the corporate world and chipped away at the power of unions.
Barrett does not have a long judicial record, so it is unclear how she views issues such as net neutrality. The long debate over rules of the road for internet service could wind up at the high court, as the Justice Department is challenging a robust net neutrality law passed in California.
The Trump administration, however, has wanted to take a heavier hand when it comes to dictating how social media platforms moderate third-party content, arguing that sites have been biased against conservative voices, even as rightward sites consistently top traffic on Facebook. The administration has proposed changes to Section 230 of the Communications Decency Act that would strip platforms of some of the immunity they enjoy on how they handle third-party content. Any change in that law likely would face a First Amendment challenge that ultimately could make its way to the Supreme Court.