Kennedy’s Replacement Should Be Judge Amy Coney Barrett
(Bloomberg Opinion) -- In picking a successor to Justice Anthony Kennedy, President Donald Trump has many fine potential nominees among whom to choose. The top contenders seem to be Amy Coney Barrett, Thomas Hardiman, Brett Kavanaugh, Raymond Kethledge and Amul Thapar, all of whom are well-respected conservative judges.
In my view, Trump should pick Barrett.
She is the youngest of the five top choices, which is a mark in her favor given that the nominee will have life tenure and Trump will want one who will leave a lasting mark on the law.
Her educational history — she went to Rhodes College and Notre Dame Law School — would add a little welcome diversity to a Supreme Court full of Yale and Harvard alumni. It’s not the most important consideration, but a little less insularity would be a good thing.
Barrett has also recently been through Senate confirmation to a federal appeals court. She won the support of all the Republicans and three Democrats (Joe Donnelly of Indiana, Tim Kaine of Virginia, and Joe Manchin of West Virginia). Some of those senators might rationalize a vote against her for the Supreme Court on the ground that her decisions on the appeals court have disappointed them, or that the high court has more power than the one they voted to put her on. But they will be hard-pressed to argue that she is an extremist given their own recent support.
That confirmation experience also means that we know the likely line of attack on Barrett — and that it will probably backfire. Last year Senator Dianne Feinstein criticized her for her religious views.
“Dogma lives loudly within you,” Feinstein said, in reference to Barrett’s Catholic faith. Never mind that Barrett had already said that “it is never appropriate for a judge to apply their personal convictions, whether it derives from faith or personal conviction.” Feinstein’s office defended the senator by noting that Barrett had also written, in an article for the Notre Dame Alumni Association, that all people play a role “in God’s ever-unfolding plan to redeem the world” — which is a fairly basic statement of Christian belief that does not imply support for the judicial imposition of theocracy.
The attack moved Christopher Eisgruber, the president of Princeton University, to defend Barrett as someone “who would serve this country honorably and well” and to add that nominees “ought in any event to be evaluated on the basis of their professional ability and jurisprudential philosophy, not their religion.” If Democrats want to make a case against Barrett’s religion again, but with the added publicity a Supreme Court nomination would bring, it probably would not play any better.
The main reason I favor Barrett, though, is the obvious one: She’s a woman. It may be that in an ideal world, the sex of a Supreme Court nominee would not matter. 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 — as I certainly hope it will be, as it is an unjust decision with no plausible basis in the Constitution — it would be better if it were not done by only male justices, with every female justice in dissent.
So pick Barrett, Mr. President. Let the dogma live loudly on the Supreme Court.
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