For Republicans, Judge Amy Coney Barrett is the perfect Supreme Court nominee.
For everyone else, she’s scary. For all her youth and brilliance, she represents the past, because she stands for turning back the clock on rights.
Poised, articulate, and intellectually gifted, Barrett is qualified for the job. She also comes with the added bonus of a family that includes a supportive husband and seven children — including two adopted from Haiti and one with Down syndrome. It’s a pretty picture, bolstered by her talent for pretty words.
Barrett insists she will take a seat on the Supreme Court with no policy agenda or commitments regarding future cases. “It’s not the law of Amy,” said Barrett during the second day of hearings. “It’s the law of the American people.”
If only we could believe her. But that promise is hard to swallow, given everything surrounding this nomination, from President Trump and his desperate political agenda to the mad rush by Senate Republicans to confirm Barrett before Election Day.
Trump has made it clear he wants to send someone to the Supreme Court to overturn Roe v. Wade, which legalized abortion, and destroy the Affordable Care Act, which made health insurance available to more than 20 million people, as well as decide any election-related cases, presumably in his favor. He — and the Republicans — are charging ahead despite the fact that the ACA remains popular and a clear majority of Americans do not want Roe to be overturned.
At Wednesday’s hearing, Republican Senator Lindsey Graham of South Carolina could not be plainer about the history Barrett will be making, once confirmed. “This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology. … We have arrived,” crowed Graham, unmasking Barrett more dramatically than she had unmasked herself. Despite that framing of the significance of her nomination, Barrett insists she can set aside her personal beliefs in abortion-related cases and others.
Such a pledge would mean more if she had not refused to discuss specific Supreme Court cases that have already been decided. Her bobbing and weaving — which is now customary for Supreme Court nominees — leaves the country with what Democratic Senator Amy Klobuchar of Minnesota described as “the tracks” of Barrett’s record. And those tracks suggest Barrett is ideologically positioned to do exactly what Trump is nominating her to do.
For example, Barrett’s tracks on abortion include a 2006 advertisement she signed in support of overturning Roe v. Wade and its “barbaric legacy.” Pressed about it, she said she signed it quickly in the back of a church as a private citizen and would not do that as a judge. Although she describes the late Justice Antonin Scalia as her mentor, she would not say whether she believed, like Scalia, that Roe was wrongly decided. But she did say she didn’t consider it a “super-precedent” — one that the Supreme Court could never overrule. She also declined to say if she agreed with Scalia that the Constitution does not afford gay Americans the right to marry.
Regarding the Affordable Care Act, she said, “I am not here on a mission to destroy the ACA.” Yet going back to “the tracks” of her record, Barrett wrote in a 2017 academic paper that in upholding the ACA, Chief Justice John Roberts pushed “beyond its plausible meaning to save the statute.” Again, she insisted that she could keep an open mind in a pending case involving the ACA, which turns on a different legal issue than the one for which she criticized Roberts.
Barrett describes herself as an “originalist” and “textualist,” meaning that she looks only to the written word of the law to interpret its meaning. Yet, as others have also pointed out, she declined to answer a question that is addressed directly in the Constitution and the law: Can the president delay an election? Another question she refused to answer: Does the president have a right to pardon himself for a crime?
It’s possible that, once confirmed, she will become the independent-minded jurist she said she will be. What’s scary is the other very real possibility: that “the law of Amy” — not “the law of the American people” — guides her decision-making, and she becomes the fifth vote that tips the court not just to the right, but backward in time.
That’s how these Republicans will be remembered. And that’s how America will be judging Amy.