Amy Coney Barrett emerges as favorite on right, target for left

Amy Coney Barrett has emerged as the favorite candidate for social conservatives in the debate over who President TrumpDonald John TrumpNFL freezes policy barring players from protesting during anthem McConnell spokesman on Putin visit: 'There is no invitation from Congress' Petition urges University of Virginia not to hire Marc Short MORE should pick to replace Supreme Court Justice Anthony Kennedy.

Barrett — a 46-year-old appellate judge — checks multiple boxes for the right.

ADVERTISEMENT
Her age will allow her to influence the court for decades, she’s unabashedly conservative and deeply religious, and her gender, conservatives hope, will make it harder for critics to paint her as extreme on women’s rights and health care.

Abortion is expected to be at the center of the Senate debate on the next court pick no matter who Trump nominates because of Kennedy’s status as a pivotal vote on the issue.

But picking Barrett would guarantee an explosive confirmation fight in the Senate and likely spark a broader, all-out culture war months before a midterm election where Republicans are battling to keep control of Congress.

Conservatives have rallied around Barrett, who has questioned Roe v. Wade and the court’s deference to legal precedent — raising the prospect that she would be more likely than other picks to vote to overturn the 1973 decision legalizing abortion.

She’s in the top tier of contenders.

In addition to Barrett, Trump is said to be heavily considering Brett Kavanaugh, a judge on the D.C. Circuit Court of Appeals, and Raymond Kethledge, a judge on the 6th Circuit.

Just the speculation that Barrett could be tapped to succeed Kennedy has sparked early crossfire, underscoring that she’s viewed as one of, if not the, most controversial pick Trump could make.

“She is a conservative woman who has been successful, who has been a mother, been a professor, which represents a lot of conservative women out there. ... The left hates that. It does not fit their model,” Tony Perkins, the president of the Family Research Council, said on Fox News radio.

Senate Minority Leader Charles SchumerCharles (Chuck) Ellis SchumerDemocrats slam Trump for considering Putin’s ’absurd’ request to question Americans Judge Kavanaugh confounds the left This week: GOP mulls vote on ‘abolish ICE’ legislation MORE (D-N.Y.) made Barrett his first direct target, warning she would be an “activist” justice and the “deciding vote” on overturning Roe v. Wade.

Conservatives are privately questioning Kethledge and Kavanaugh, setting Barrett up as the nominee who could most excite the base heading into November.

Barrett is relatively new to the federal judiciary, joining the 7th Circuit last year. But she vaulted through the ranks of conservative circles after she survived a showdown with Democrats on the Senate Judiciary Committee who appeared to question if her Catholic faith would influence her rulings.

“The dogma lives loudly within you, and that’s of concern when you come to big issues that people have fought for for years,” Sen. Dianne FeinsteinDianne Emiel FeinsteinSenate GOP breaks record on confirming Trump picks for key court Deal to fix family separations hits snag in the Senate Election Countdown: Senate, House Dems build cash advantage | 2020 Dems slam Trump over Putin presser | Trump has M in war chest | Republican blasts parents for donating to rival | Ocasio-Cortez, Sanders to campaign in Kansas MORE (Calif.), the top Democrat on the panel, told Barrett during the hearing.

Republicans quickly seized on the remarks, accusing Democrats of trying to apply a religious test to judicial nominations.

Conservatives are publicly rallying behind Barrett, arguing the optics of a female nominee could scramble the Democratic narrative that Trump’s pick will be detrimental to women’s rights and abortion.  

“Opposing a woman will probably be more awkward for senators than opposing a man would be,” Ramesh Ponnuru, a senior editor for National Review, wrote in a Bloomberg op-ed publicly urging Trump to pick Barrett.

He added that if the court was going to overturn Roe, “it would be better if it were not done by only male justices, with every female justice in dissent.”

Unlike Kethledge and Kavanaugh, Barrett — a Notre Dame Law graduate and clerk to former Justice Antonin Scalia — has another advantage: She was recently confirmed to the 7th Circuit by, essentially, the same Senate that will vote on Trump’s Supreme Court nominee.

Democratic Sens. Tim KaineTimothy (Tim) Michael KaineGraham would consider US-Russia military coordination in Syria Dem infighting erupts over Supreme Court pick Election Countdown: Latest on the 2018 Senate money race | Red-state Dems feeling the heat over Kavanaugh | Dem doubts about Warren | Ocasio-Cortez to visit Capitol Hill | Why Puerto Ricans in Florida could swing Senate race MORE (Va.), Joe ManchinJoseph (Joe) ManchinOvernight Health Care: Trump officials explore importing prescription drugs | Key ObamaCare, drug pricing regs under review | GOP looks to blunt attacks on rising premiums | Merck to lower some drug prices Dems pressure GOP to take legal action supporting pre-existing conditions Election Countdown: Senate, House Dems build cash advantage | 2020 Dems slam Trump over Putin presser | Trump has M in war chest | Republican blasts parents for donating to rival | Ocasio-Cortez, Sanders to campaign in Kansas MORE (W.Va.) and Joe DonnellyJoseph (Joe) Simon DonnellyDems pressure GOP to take legal action supporting pre-existing conditions Senate Dems build huge cash edge in battlegrounds Fed chief lays out risks of trade war MORE (Ind.) all voted for her. Sen. Heidi HeitkampMary (Heidi) Kathryn HeitkampDems pressure GOP to take legal action supporting pre-existing conditions Election Countdown: Senate, House Dems build cash advantage | 2020 Dems slam Trump over Putin presser | Trump has M in war chest | Republican blasts parents for donating to rival | Ocasio-Cortez, Sanders to campaign in Kansas Senate Dems build huge cash edge in battlegrounds MORE (N.D.), another Democratic swing vote, did note.

Moderate GOP Sens. Susan CollinsSusan Margaret CollinsThe Hill's Morning Report — Russia furor grips Washington Overnight Health Care: Novartis pulls back on drug price hikes | House Dems launch Medicare for All caucus | Trump officials pushing ahead on Medicaid work requirements Senate panel to vote next week on banning 'gag clauses' in pharmacy contracts MORE (Maine) and Lisa MurkowskiLisa Ann MurkowskiThis week: GOP mulls vote on ‘abolish ICE’ legislation Dem infighting erupts over Supreme Court pick McConnell: Senate to confirm Kavanaugh by Oct. 1 MORE (Alaska) both supported Barrett for her current position. 

But they would face a mountain of pressure to oppose Barrett because of her previous writings. Collins said this week that she would not support a nominee who is “hostile” to Roe v. Wade.

Sarah Peck, a spokeswoman for Kaine, said he supported Barrett because of her “professional record” and pledge to “follow the law,” but added that a Supreme Court nomination is substantively different.  

“A mistaken Supreme Court ruling can be both catastrophic and difficult to correct,” she said.

Donnelly would face enormous pressure to support Barrett because she is from Indiana.

Barrett’s supporters note that she said in 2013 that it was “very unlikely” that Roe v. Wade would be overturned and the “fundamental element, that the woman has a right to choose abortion, will probably stand.”

Democrats counter with a slate of legal writings, including a 2003 article where Barrett argues stare decisis should be “flexible.” She wrote in a separate 2013 law article that the doctrine “is not a hard-and-fast rule in the court’s constitutional cases.”

“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,” Barrett wrote.

With their narrow majority effectively capped at 50 as Sen. John McCainJohn Sidney McCainControversial Trump judicial nominee withdraws Trump vows to hold second meeting with Putin Ex-Montenegro leader fires back at Trump: ‘Strangest president' in history MORE (R-Ariz.) undergoes treatment for brain cancer, Republicans have no room for error.

But some conservatives — burned for years by nominees they believe shift toward the middle once on the bench — are urging Trump to nominate Barrett even if she might not be the safest choice.

Leadership at the American Family Association, the American Principles Project and the Judicial Action Group, in a recent letter, urged Trump to nominate Barrett because she wouldn’t be a “stealth nominee.”

“It is better to have a vacancy until next year,” they wrote, “than to fill the seat with a weak nominee who will betray your legacy and the constitution for the next forty years.”