In Trump Court Front-Runner, Religious Right Sees One of Its Own

Three years ago, when Amy Coney Barrett was a nominee to the federal appeals court in Chicago, she endured a blistering Senate confirmation hearing in which Democrats grilled her on whether her deep Catholic faith would distort her view of the law.

She maintained a calm demeanor under the intense questioning. But behind the scenes, she was “a little shook,” recalled Laurence Silberman, a Washington federal appeals court judge for whom Barrett once clerked and who sat with her family at the 2017 hearing.

Now, as the front-runner to be President Donald Trump’s nominee to replace liberal icon Ruth Bader Ginsburg on the Supreme Court, Barrett, 48, is poised to face an even more ferocious battle. Putting Barrett on the court would create a 6-3 conservative majority, and Democrats fear the vocal abortion critic would almost certainly vote to overturn Roe v. Wade, the landmark 1973 decision on abortion rights, and potentially gut Obamacare as well. To blunt that, some Democrats are raising the possibility of expanding the court if they retake the White House and Senate.

In Trump Court Front-Runner, Religious Right Sees One of Its Own

“She’s a nominee that really makes the stakes of this fight clear,” said Christopher Kang, a co-founder of the left-wing judicial advocacy group Demand Justice.

‘Always Immoral’

In 2017, the Democratic attacks on Barrett turned her into a conservative folk hero. She often speaks publicly about her Catholicism. And her family life -- she has seven children, including two adopted from Haiti and a son with Down Syndrome -- has strengthened her appeal to religious conservatives who see her as a true adherent to the pro-life cause. Abortion is “always immoral,” declared a 1998 law review article Barrett co-authored.

“She clearly is the dream candidate for conservatives who are focused on abortion,” said Elizabeth Sepper, a law professor at the University of Texas at Austin.

Barrett grew up in a suburb of New Orleans and attended a Catholic girls’ high school. She earned her undergraduate degree from Rhodes College in Tennessee and went on to Notre Dame Law School, where she graduated in 1997. She then clerked with Silberman, who is active in the conservative Federalist Society. At the time, he usually hired clerks from Harvard and Yale but made an exception for Barrett at the urging of two Notre Dame professors.

“She is an extraordinary woman, an extraordinary legal mind -- first-class, penetrating,” said Silberman, who went on to help Barrett get a Supreme Court clerkship with Antonin Scalia. The iconic conservative justice became one of Barrett’s most important mentors.

After finishing her clerkships, Barrett briefly worked for a law firm in Washington. She returned to Notre Dame Law School in 2002 as a professor, joining a tight-knit community in South Bend, Indiana, where she still lives with her husband, Jesse Barrett, a federal prosecutor. In 2018, the couple had assets ranging in value between $871,000 and $3.2 million, according to a copy of Amy Coney Barret’s financial disclosure form obtained by Fix the Court, a group that advocates for reforming the federal judiciary.

Textualist Approach

Like Scalia and Justice Neil Gorsuch, Barrett identifies as a textualist — a legal scholar who seeks to determine the plain meaning of legislation rather than interpreting the intentions of its authors. “To figure out what the law is, we go to the source,” she said on a Federalist Society panel in 2019. “We identify the meaning of the text that the people ratified.”

But some social conservatives have grown wary of textualism in the wake of a sweeping June decision in which Gorsuch interpreted the text of the 1964 Civil Rights Act as protecting gay and transgender employees from workplace discrimination.

Jonathan Adler, a conservative law professor at Case Western Reserve University who is friendly with Barrett, warned that her supporters should not assume she will mold her judicial analysis to achieve certain policy goals. “Whether or not she would overturn Roe. v. Wade, I don’t think anyone knows,” he said.

Still, Adler acknowledged that her personal beliefs hold enormous appeal to many on the right. “She’s not going to apologize or back down about her personal views,” he said. “She holds certain beliefs or values and has lived her life in accordance with those beliefs and values.”

According to a 2017 New York Times article, those beliefs and values also include membership in a small Christian group called People of Praise that combines Catholic teachings with Pentecostal beliefs like prophecy and speaking in tongues. Until recently, the group called women in leadership roles “handmaids,” leading some left-wing critics to compare it to the oppressive regime in the novel “The Handmaid’s Tale.” Such comparisons have drawn rebukes from Barrett’s supporters in recent days.

“Here in South Bend, everybody knows People of Praise,” said Carter Snead, a colleague of Barrett’s at Notre Dame. “It’s just a group of really nice folks. The idea that there’s something sinister about it is really funny when you think about who these folks actually are.”

Rallying Cry

At Barrett’s 2017 confirmation hearing, Democratic Senator Dianne Feinstein of California expressed fear that her religion would guide her decisions as a judge. “The dogma lives loudly within you,” Feinstein said.

Barrett responded that her personal views would not affect her legal analysis, and she was confirmed 55-43, largely along party lines. Religious conservatives appropriated Feinstein’s remark as a rallying cry, plastering it on T-shirts and mugs, and Barrett’s steady performance at the hearing was a major reason that Trump considered her the following year for the Supreme Court seat ultimately filled by Brett Kavanaugh, according to a person familiar with the selection process.

At the time, Trump was impressed by Barrett’s connection to Scalia. But he preferred Kavanaugh partly because of the Yale Law School graduate’s Ivy League credentials, according to someone familiar with his thinking. Trump also told aides that he wanted to keep Barrett in reserve in case Ginsburg’s seat opened up, another person close to the process said.

Barrett confided to Silberman at the time that she wasn’t sure she was ready for the job.

“She thought Brett Kavanaugh was a better choice,” he recalled. “She thought she hadn’t been on the bench long enough.”

In the three years she has now served as a judge, Barrett has dissented twice when the court blocked state restrictions on abortion. And she has voiced skepticism about the Affordable Care Act, also known as Obamacare. In a 2017 law review article, she criticized Chief Justice John Roberts’ opinion upholding the law, arguing that he pushed the text “beyond its plausible meaning.”

If Barrett’s confirmed before Election Day, she will be in position to end Obamacare once and for all. A fresh constitutional challenge goes before the Supreme Court on Nov. 10.

©2020 Bloomberg L.P.

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