President Trump has yet to name his choice to replace retiring Supreme Court Justice Anthony M. Kennedy, but already the vultures are circling.
Proponents of judicial activism — those who see the High Court as just another political branch of government, rather than a neutral arbiter of the law — are particularly focused on smearing Judge Amy Coney Barrett, whom President Trump reportedly interviewed this week. Opponents of Judge Barrett have unfairly attempted to paint her as controversial. Nothing could be further from the truth.
Barrett is clearly qualified for the Court. A judge on the U.S. Court of Appeals for the Seventh Circuit in Chicago, Barrett graduated with highest honors from the University of Notre Dame Law School (where she was a member of the law review), clerked for judges on the D.C. Circuit and the U.S. Supreme Court, practiced law with an elite law-firm, and was a highly respected professor at Notre Dame Law School before joining the bench. The Washington Post summarizes the case for Barrett this way:
“She’s young (46), good on her feet, telegenic, unmistakably conservative and, with seven children, has the kind of family you want sitting behind you during tense confirmation hearings.”
With this kind of record, you would expect feminists to rally behind Judge Barrett. After all, this is a woman who seems, literally, to have found a way to have it all — an incredibly successful career and a large and thriving family.
And yet, the National Women’s Law Center opposed Barrett’s nomination to the Seventh Circuit, calling her a threat to “civil, constitutional and reproductive rights.” On July 2, NWLC tweeted: “Someone like Amy Coney Barrett has no place on the bench of our country’s highest court.” Apparently, the organization, which boasts the motto, “expanding the possibilities for women and girls since 1972,” only wants to expand opportunities for certain kinds of women and girls. Women “like Amy Coney Barrett” not included.
So, what is it about Judge Barrett that has much of the sisterhood in a tizzy? Her religion: Judge Barrett is a devout Catholic.
At the time of Barrett’s nomination to the Seventh Circuit, Sen. Diane Feinstein (D-Calif.) declared that she had a “very uncomfortable feeling” about Barrett’s faith and inappropriately questioned Barrett’s ability to serve impartially. “The dogma lives loudly within you,” Feinstein famously quipped. “And that is of concern.”
While many on the left attempt to minimize Feinstein’s remarks as simply “inelegantly” put, they nevertheless find her concerns “just.” But it is hard to see why Barrett’s Catholicism warrants special concern.
After all, progressives have long said that “empathy” is one of the most important qualities in a judge. Does empathy that flows from religious conviction not count? And do those “concerned” about Barrett’s religion actually believe that a president should never consider a person of faith for the federal judiciary?
Barrett has been clear that her personal views (whatever they may be) will not impact her judicial decisions. Long before she was nominated to the bench, then-Professor Barrett wrote that litigants and the public are entitled to “impartial justice” — irrespective of a judge’s moral or religious views. Barrett is also firmly committed to originalism and textualism — twin tenets of interpretation that constrain the ability of judges to impose their own moral values.
In truth, much of the hysteria from the left boils down to one case: Roe v. Wade. Progressives are concerned that Barrett might provide the fifth vote to overrule the controversial decision that created a constitutional right to abortion on demand.
But Barrett’s views on stare decisis — the idea that sometimes it is better that the law be settled than it be right — are well within the mainstream. Barrett has expressed the widely-held view that constitutional decisions are entitled to a weaker form of stare decisis because, unlike statutory decisions, Congress cannot change a constitutional ruling. Legal scholars of all political stripes acknowledge that a constitutional precedent is not absolute. If it were, the Plessy v. Ferguson and Korematsu decisions would still be law of the land.
Of course, demanding guarantees from judicial nominees that they will vote a certain way on cases that may come before them violates the principle of impartiality that is the cornerstone of an independent judiciary. But the attacks on Barrett also reveal as utterly disingenuous the feminists’ purported goal of breaking the “glass ceiling” in order to allow more women to succeed at the very highest levels of government.
We don’t know who President Trump will select to replace Justice Kennedy. But he should not let a well-organized, well-funded and bigoted attack on a potential nominee influence his decision.
Jennifer C. Braceras is a senior fellow with Independent Women’s Forum. Since graduating from Harvard Law School in 1994, Braceras has served as a law clerk to two federal judges, practiced employment law at a major Boston law firm, and taught and conducted research on education law and federal anti-discrimination law.
Erin Hawley is a legal fellow with Independent Women’s Forum, an associate professor of law at the University of Missouri, and a former law clerk to Chief Justice John G. Roberts Jr.