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 TrumpGillibrand backs federal classification of third gender: report Former Carter pollster, Bannon ally Patrick Caddell dies at 68 Heather Nauert withdraws her name from consideration for UN Ambassador job MORE should pick to replace Supreme Court Justice Anthony Kennedy.

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


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 SchumerNational emergency declaration — a legal fight Trump is likely to win House Judiciary Dems seek answers over Trump's national emergency declaration Mandatory E-Verify: The other border wall 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 FeinsteinFeinstein says she thinks Biden will run after meeting with him Trump judicial nominee Neomi Rao seeks to clarify past remarks on date rape Bottom Line 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 KaineOvernight Defense: Trump declares border emergency | .6B in military construction funds to be used for wall | Trump believes Obama would have started war with North Korea | Pentagon delivers aid for Venezuelan migrants Kaine asks Shanahan if military families would be hurt by moving .6B for border wall Clinton on GOP promoting Trump 'stronger together' quote: Now copy my policies too MORE (Va.), Joe ManchinJoseph (Joe) ManchinSenate confirms Trump pick William Barr as new attorney general GOP wants to pit Ocasio-Cortez against Democrats in the Senate Senate poised to confirm Trump’s attorney general pick MORE (W.Va.) and Joe DonnellyJoseph (Joe) Simon DonnellyOvernight Energy: Trump taps ex-oil lobbyist Bernhardt to lead Interior | Bernhardt slams Obama officials for agency's ethics issues | Head of major green group steps down Trump picks ex-oil lobbyist David Bernhardt for Interior secretary EPA's Wheeler faces grilling over rule rollbacks MORE (Ind.) all voted for her. Sen. Heidi HeitkampMary (Heidi) Kathryn HeitkampOvernight Energy: Trump taps ex-oil lobbyist Bernhardt to lead Interior | Bernhardt slams Obama officials for agency's ethics issues | Head of major green group steps down Trump picks ex-oil lobbyist David Bernhardt for Interior secretary On The Money: Shutdown Day 27 | Trump fires back at Pelosi by canceling her foreign travel | Dems blast 'petty' move | Trump also cancels delegation to Davos | House votes to disapprove of Trump lifting Russia sanction MORE (N.D.), another Democratic swing vote, did note.

Moderate GOP Sens. Susan CollinsSusan Margaret CollinsCongress must step up to protect Medicare home health care Business, conservative groups slam Trump’s national emergency declaration The Hill's 12:30 Report — Presented by Kidney Care Partners — Trump escalates border fight with emergency declaration MORE (Maine) and Lisa MurkowskiLisa Ann MurkowskiThe Hill's 12:30 Report — Presented by Kidney Care Partners — Trump escalates border fight with emergency declaration On The Money: Trump declares emergency at border | Braces for legal fight | Move divides GOP | Trump signs border deal to avoid shutdown | Winners, losers from spending fight | US, China trade talks to resume next week The Hill's Morning Report — Presented by the American Academy of HIV Medicine — Trump, Congress prepare for new border wall fight 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 McCainPence met with silence after mentioning Trump in Munich speech Mark Kelly's campaign raises over M in days after launching Senate bid The Hill's 12:30 Report — Presented by Kidney Care Partners — Lawmakers wait for Trump's next move on border deal 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.”