With Republicans eager to pick a Supreme Court replacement for Ruth Bader Ginsburg while they still have the power to do it — no matter how obvious the hypocrisy — Amy Coney Barrett has once again moved to the top of many a shortlist.
The 48-year-old judge was considered by (the people who control) Donald Trump for the SCOTUS opening that later went to Brett Kavanaugh, and no doubt the GOP would love to replace Ginsburg with another woman. Even Russia wants her nominated.
Barrett, who once clerked for Justice Antonin Scalia, was appointed to the 7th U.S. Circuit Court of Appeals in 2017. In that time, to quote Slate’s Mark Joseph Stern, she’s written or supported decisions that “harm unpopular and powerless individuals who rely on the judiciary to safeguard their rights.”
More to the point: She’s almost certain to overturn Roe v. Wade given the opportunity, someone who said Notre Dame shouldn’t cover contraception for students, and was already pre-approved by the Federalist Society as a justice who would side with conservatives for decades to come.
Another reason she’s a perfectly Trumpian pick is that she’s almost guaranteed to bait liberals who dare to question her faith. Barrett is a self-described Roman Catholic, though she belongs to a specific group called People of Praise that’s unaffiliated with the Church. (Her involvement with that group was unknown when she was confirmed to the appellate court.)
Some of the group’s practices would surprise many faithful Catholics. Members of the group swear a lifelong oath of loyalty, called a covenant, to one another, and are assigned and are accountable to a personal adviser, called a “head” for men and a “handmaid” for women. The group teaches that husbands are the heads of their wives and should take authority over the family.
They also believe in “prophecy, speaking in tongues and divine healings.” Is it weird? Hell yes. Is it any more weird than believing a wafer turns into the body of Christ, that Jesus died then came back to life, or that a literal Devil exists? Not at all.
Raising questions about how her faith might influence her Court decisions is almost guaranteed to backfire, as conservatives will just claim the questions themselves are a form of religious persecution. That’s already what happened during her 2017 confirmation hearings when we didn’t even know about her specific religious beliefs. Sen. Dianne Feinstein created easy fodder for Republicans when she said of Barrett, “the dogma lives loudly within you.” (She was suggesting, not unfairly, that faith would influence Barrett’s decisions, but it was widely seen as a knock on Barrett’s faith itself.)
There are much better ways to get to the heart of how religion influences her thinking, anyway.
For example, in 2005, as a law student, she co-wrote an article for the Marquette Law Review about Catholic judges involved in death penalty cases. If the Church opposed capital punishment, but the law allowed for it, what should a Catholic judge do?
… we believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death. Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving.
(That last bit is a convenient cop-out for someone who may soon be in that very position.)
She said in the conclusion:
Judges cannot — nor should they try to — align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard. Perhaps their good example will have some effect.
It’s not hard to see how Barrett would find harmony between the Church’s anti-abortion stances and a Supreme Court decision to overturn what many conservatives have referred to as another “Holocaust.” In fact, in that same article, Barrett referred to abortion as “always immoral” and said that abortion “take[s] away innocent life.”
Would she distance herself from that position? Not necessarily:
The article also noted that, when the late Justice William Brennan was asked about potential conflict between his Catholic faith and his duties as a justice, he responded that he would be governed by “the oath I took to support the Constitution and laws of the United States”; Barrett and [co-author John] Garvey observed that they did not “defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”
Another disturbing thought? Barrett wrote in 2013 that legal precedent (stare decisis) could be called into question if the judge felt a previous decision was wrongly decided: “Soft stare decisis helps the Court navigate controversial areas by leaving space for reargument despite the default setting of continuity.”
That attitude, if applied, could mean the end of nationwide same-sex marriage and abortion rights. If there’s a conservative position to take, she’s going to take it. That’s why she was placed on the Federalist Society’s list.
That’s why, if she’s nominated, Democrats must do everything in their power to prevent her from getting on the Court. There’s too much at stake. And if Democrats are unable to stop her confirmation, they should vow to eliminate the filibuster and pack the courts if they ever get the ability to do so.
(Screenshot via YouTube. Large portions of this article were published earlier)