Amy Coney Barrett isn’t the only jurist on President Trump’s list of potential successors to Justice Ruth Bader Ginsburg on the Supreme Court, but she is certainly the most feared by the left. This became clear in 2017, when Trump nominated her for the 7th Circuit Court of Appeals. During her Senate confirmation hearing, Democrats on the Judiciary Committee subjected her to a de facto inquisition, complete with outrageous inquiries concerning her Catholicism. Barrett’s response was eminently judicial: “It’s never appropriate for a judge to impose personal convictions, whether they derive from faith or anywhere else, on the law.”
If her heretical views on abortion weren’t enough to disqualify her for the Court in the eyes of the Democrats, her thought crimes with regard to Obamacare certainly would.
Regrettably, Judge Barrett’s remarkable forbearance during that 2017 interrogation probably hasn’t rendered her immune from the kind of character assassination to which any jurist nominated by President Trump to replace Ginsburg will be subjected. Moreover, because Barrett views the Constitution from an originalist perspective, the Democrats, the corporate media, and the usual mélange of social justice warriors will portray her as an extremist who would render the Court so conservative that it will inevitably eradicate “reproductive rights,” impose a “theocratic legal regime,” and repudiate the “fundamental right” to free health care. This strategy will play into Trump’s hand.
First, a clear majority of Americans believe the Senate should begin holding confirmation hearings for Justice Ginsburg’s successor sooner rather than later. A new Marquette University survey completed three days before her death found that, in the event of a 2020 vacancy on the Court, substantial majorities of both parties favor hearings on a replacement nominee this year. According to the poll, 68 percent of Republicans, 71 percent of Independents, and 63 percent of Democrats say the process for filling the vacancy should move forward with alacrity. Only 32 percent agree with Democratic presidential candidate Joe Biden that the nomination of Justice Ginsburg’s successor should be delayed.
So the voters who decide the election won’t be convinced by Biden’s argument for putting off the nomination of Ginsburg’s successor and delaying confirmation: “There is no doubt — let me be clear — that the voters should pick the President, and the President should pick the justice for the Senate to consider.” Biden has evidently forgotten that the voters did “pick the President” on November 8, 2016. His term ends on January 20, 2021, by which time he will have long since “picked the justice for the Senate to consider.” As Justice Ginsburg herself put it in 2016, “There’s nothing in the Constitution that says the president stops being president in his last year.” Saturday Trump phrased it thus:
.@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!
As for the nomination hearings, Senate Majority Leader Mitch McConnell (R-Ky.) has pledged to move forward quickly, and exhibits no sign that he will temporize:
Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary.… President Trump’s nominee will receive a vote on the floor of the United States Senate.
It’s a good bet that Trump will nominate Barrett sometime this week. The Democrats are already going after her through their surrogates in the media in the hope that her “controversial” views will convince the President to cull her from his list. Just how controversial are her views? According to an article published in Notre Dame Magazine, when she was a law professor Barrett led a lecture exploring the consequences of American abortion jurisprudence and “the debate over the U.S. Supreme Court’s ‘institutional capacity’ to resolve divisive questions like the legality of abortion.” In that lecture, she aired several views long ago denounced as heretical by orthodox feminists.
Barrett’s most dangerous heresy was to ask whether the abortion debate might be more efficiently resolved via the democratic process than in the courts. This implies that SCOTUS may have been out of its depth in Roe v. Wade. Such questions have also been declared verboten. Never mind that Barrett also indicated that it was “very unlikely” the court will overturn Roe, such queries have caused her to be declared anathema by abortion activists, the media, and the Democratic Party. Yet a recent Marist survey found that most Americans reject the Court’s reasoning in the 1973 ruling. Combined with the following passage from a Barrett opinion, this has the abortion industry worried:
Stare decisis [precedent] is not a hard-and-fast rule in the Court’s constitutional cases, and the Court has not been afraid to exercise its prerogative to overrule precedent.… If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle.
If her heretical views on abortion weren’t enough to disqualify her for the Court in the eyes of the Democrats, her thought crimes with regard to Obamacare certainly would. In 2017, for example, she wrote that Chief Justice John Roberts’ ruling in NFIB v. Sebelius was an exercise in creative writing whose sole purpose was to save the misbegotten healthcare law. The text of the “Affordable Care Act” justified the individual mandate as a legitimate exercise of congressional power pursuant to the Commerce clause, but 5 of 9 justices rejected that claim. Then Chief Justice Roberts invented the absurd saving construction. The rationale for that ruling evaporated when Congress reduced the tax to zero.
Thus, Obamacare has yet another rendezvous with SCOTUS next year. This time, with a Justice Barrett on the Court, the “reform” law is in real danger. On the health care “reform” law and abortion, Amy Coney Barrett is the left’s worst nightmare and consequently the perfect SCOTUS nominee at this crucial point in President Trump’s reelection campaign. By nominating her, he will further energize an already enthusiastic Republican base, wreck the Democratic strategy for beating him in November, and leave his bumbling Democratic challenger even more befuddled than ever.
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Author: David Catron