Joan Frawley Desmond, is the Register’s senior editor. She is an award-winning journalist widely published in Catholic, ecumenical and secular media. A graduate of the Pontifical John Paul II Institute for Studies of Marriage and Family, she lives with her family in California..
Supreme Court Justice Anthony Kennedy’s imminent retirement is fueling speculation that a pro-life Catholic mother of seven could be Trump’s next pick for the high court.
Last year, Trump nominated Amy Coney Barrett, a law professor at the University of Notre Dame, to fill a vacancy on the United States Court of Appeals for the Seventh Circuit, and she won approval 55-43.
Now, this Catholic mother of 7, who once clerked for the late Justice Antonin Scalia, is said to be on the short list of likely candidates who will be vetted by the White House over the next few weeks, with a final choice expected by July 9, and a confirmation within 60 days.
“What the president is looking for is someone who doesn’t just parrot the words, ‘originalism,’ or, ‘textualism,’ trying to pander to what he wants, but someone who has demonstrated that jurisprudence in their career,” Carrie Severino, a seasoned veteran of U.S. Supreme Court confirmation battles at the Judicial Crisis Network, a conservative advocacy group, told the Register.
The White House, added Severino, is looking for a candidate with an established record on the appellate bench, like Neil Gorsuch, or a law professor, “like Amy Barrett,” with a significant academic legacy that reflects an originalist or a textualist approach to statutory interpretation—and opposes legislating from the bench.
Here’s why Barrett could end up as the frontrunner:
1. At 46, Barrett is the youngest jurist on Trump’s short list.
If Barrett is chosen and wins confirmation, she could remain on the high court for close to three decades.
2. Barrett’s Catholicism poses a sticky challenge for Senate Democrats and liberal activists.
When Barrett faced the Senate Judiciary Committee last fall, California Senator Diane Feinstein, the ranking Democrat on the committee, famously attacked her strong Catholic faith.
“The dogma lives loudly within you,” said Feinstein, in a notorious exchange with Barrett that sparked a national outcry.
Senator Orrin Hatch, R-Utah, pushed back hard, accusing Feinstein of imposing an unconstitutional “religious test” on Barrett.
Feinstein and other Democrats on the Judiciary Committee will surely think twice before employing similar tactics designed to smear faithful Catholics as unfit for the judicial office.
On the other hand, partisan forces will look for other ways to raise questions about Barrett’s religious faith.
Last fall, the New York Time’s Laurie Goodstein spotlighted Barrett’s membership in “a small, tightly knit Christian group called People of Praise.”
Barrett’s involvement in the Christian group that “never came up at the hearing, and might have led to even more intense questioning,” said Goodstein.
“Some of the group’s practices would surprise many faithful Catholics. … The group teaches that husbands are the heads of their wives and should take authority over the family.”
If Barrett is nominated, stay tuned for talking points that suggest she’s an outlier and can’t be trusted.
3. Three Democrats voted to approve Barrett’s 2017 nomination to the appellate bench.
Despite strong partisan opposition to Barrett’s nomination to the 7th Circuit, she won support from three Democratic senators: Joe Donnelly of Indiana, Tim Kaine of Virginia and Joe Manchin of West Virginia.
If Trump chooses Barrett to fill Kennedy seat, these senators will be under intense pressure from their party to reject her nomination. But Donnelly and Manchin’s constituents could punish them if they fail to support the Catholic jurist, and that could be the deciding factor.
4. It won’t be easy to ‘Bork’ a female nominee.
“It may be that in an ideal world, the sex of a Supreme Court nominee would not matter,” said Ramesh Ponnuru, in a June 29 column for the Chicago Tribune that urged Trump to nominate Barrett.
“But opposing a woman will probably be more awkward for senators than opposing a man would be. Also, it cannot be good for conservatism that all three women now on the court are liberals. If Roe v. Wade is ever overturned … it would be better if it were not done by only male justices, with every female justice in dissent.”
This point requires a caveat, however. For while Trump has said that at least two women are on his shortlist, other, more experienced female jurists, like Joan Larsen, have also drawn strong support from originalist legal scholars who have helped identify and vet top nominees. Larsen, appointed by Trump to the U.S. Court of Appeals for the 6th Circuit and a graduate of Northwestern University law school, clerked for the late Justice Antonin Scalia, and is also relatively young.
Politico also named Allison Eid, who now serves on the U.S. Court of Appeals for the 10th Circuit. That seat was vacated when appellate Judge Neil Gorsuch moved to the U.S. Supreme Court.
5. Barrett’s family and education make her a ‘diverse’ candidate.
Even before Trump took office, legal experts have urged the White House to expand the pool of nominees to help form a more “diverse” Supreme Court that better represents the nation.
Experts observe that most justices have graduated from Ivy League colleges and law schools, while jurists from other leading law schools in the middle of the country are often overlooked. Barrett attended the University of Notre Dame law school.
Further, Severino noted that Barrett’s family, which includes two adopted children from Haiti and a special needs child, represents a level of diversity that is unusual for the high court.
Meanwhile, the size of Barrett’s large family will shore up her credibility with Americans who care about family values, and fear that U.S. elites have adopted a hostile view of traditional marriage.
On the other hand, liberal judicial activists could take up Justice Sonia Sotomayor’s call for a more religiously diverse Supreme Court.
“I, for one, do think there is a disadvantage from having (five) Catholics, three Jews, everyone from an Ivy League school,” said Justice Sotomayor in 2016 address at Brooklyn Law School.
“A different perspective can permit you to more fully understand the arguments that are before you and help you articulate your position in a way that everyone will understand.”
In the coming weeks, other liberal activists can also be expected to l play the diversity card.
She cited A Congressional Research Service analysis, which “looked at the first 26 district and circuit court nominees from the last four presidents: Bill Clinton’s were 73 percent white, George W. Bush’s were 81 percent white, Barack Obama’s were 46 percent white, and Trump’s were 96 percent white.”
Diversity in family size has yet to draw the same level of scrutiny or debate, but that could change.
Given her considerable familial responsibilities, Barrett will offer a “very different perspective” on bread-and-butter issues faced by many Americans: How to stretch the family budget to feed and educate a large brood, and then how keep them on the straight and narrow until they are launched.
In a fractured, increasingly secular nation, where the haves and have nots keep each other at arm’s length, Amy Coney Barrett could be a brilliant choice for an equally divided high court.