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A Critical Review of Coney Barret's Nomination to SCOTUS

Published on 29 September 2020 at 10:52

On Saturday US president Donald Trump announced Amy Coney Barrett as his nominee for the next US Supreme Court judge. The nomination follows the death of liberal stalwart, Supreme Court Justice Ruth Bader Ginsburg on September 18th after a lengthy battle with pancreatic cancer. Respect was paid from all sides to the late “titan of the law” who had amassed somewhat of a cult following in recent years. Left-wing grief over the passing of an icon soon turned to dismay however as Trump announced her replacement a week later, in the form of the rigidly conservative judge.

Coney Barrett’s name came as no surprise to anyone. Trump had promised he would appoint a woman to the position and Coney Barrett fulfils every other desirable criterion: a devout Catholic, staunch originalist, astonishingly young at 48 years old and she comes with impeccable legal credentials.

Coney Barrett studied law at the university of Notre Dame, a prestigious Catholic law school, where she graduated summa cuma laude (essentially the best of the best). She is a stringent originalist (a judicial approach that says the Constitution of the US should be read strictly and within its historic context) and reputedly a textualist (an approach that relies solely on the text of the Constitution and rejects the use of external sources for interpretation). Perhaps Coney Barrett’s most significant credential is her stint clerking for late Supreme Court justice and conservative icon, Antonin Scalia and someone’s mould she is viewed (or more likely hoped) to fill. (Apparently Coney Barrett was Scalia’s favourite graduate that clerked for him).  

Coney Barrett lectured at Notre Dame for two decades before Trump appointed her to the 7th Circuit Court of Appeals in 2017. Coney Barrett was in the mix for Anthony Kennedy’s Supreme Court seat in 2018 but Trump went with Kavanaugh on the end, reportedly reasoning he was “saving” Coney Barrett “for Ginsburg”.

Coney Barrett’s views on abortion and stare decisis (the doctrine that stops courts overturning previous decisions) have been zeroed in on with a furtive eye to the towering figure of Roe v Wade and the constant debate over nulling the decision. However, conservatives’ hope (and left-wing fear) may be misplaced; while Coney Barrett is staunchly pro-life and believes the Court can overturn previous decisions if necessary, she has also said that an overturn of Roe v Wade would be unlikely. “The fundamental element, that the woman has a right to choose abortion, will probably stand. The controversy right now is about funding. It’s a question of whether abortions will be publicly or privately funded.”

While Coney Barrett’s short tenure as a judge has not exactly left an exhaustive corpus of decisions, notable judgments indicate how Coney Barrett will operate in the US’ highest court of law. She decided in favour of a publican’s Second Amendment right to own a firearm in one case and defended Trump’s immigration policy in another. In other cases, she has decided in favour of laws mandating burial of aborted babies’ remains and parental notification before abortions can be carried out. It has been widely speculated that while she may not slay the dragon of Roe v Wade, she may strike down public funding of abortion, rule against Obamacare and generally serve as a thorn in the side of progressives for decades to come.

Trump’s third and likely last nominee for the Supreme Court, Coney Barrett’s announcement has energised Trump’s base and drawn widespread support from conservatives in the US, by no means a given when the controversial president is involved. Trump’s appointments to the court have generally been acclaimed by even those conservatives who dislike his term in the Oval Office and many assert it will be his most lasting contribution to the conservative cause. His success in his judicial picks has been due to a reliance on the Federalist law society, an advocacy group for originalist and textualist reading of the Constitution. Trump’s reliance on the Federalists has been repaid by the proffering of a series of incredibly well-qualified but relatively young candidates. 5 of the current SCOTUS judges are members of the organisation. Indeed, Coney Barrett at 48 years old will be the youngest justice sitting on the Court. She will also bring the total of Catholic judges to 7, the remaining 2 being Jewish. An astonishing dynamic when one considers the makeup of the largely Protestant country. Furthermore, Coney Barrett will change another dynamic of the court; she will be the only justice who did not graduate from either Yale or Harvard.

Following the Kavanaugh hearings, Republicans are gearing themselves up for a bitter smear campaign against Coney Barrett. While many are hopeful that a female nominee can avoid some of the accusations that plagued the nomination of Brett Kavanaugh, alternate avenues are already being sought by Democrats. The most natural line of attack will be the one taken during Coney Barrett’s hearing for the 7th Circuit Court of Appeals; her faith.

Senator Diane Feinstein questioned if Coney Barrett’s faith would bias her improperly for the position and put it to Coney Barrett that Catholic “dogma lives loudly” within her. Coney Barrett refuted the claims she was improperly biased and maintained she would merely interpret the Constitution as written. Feinstein’s line of questioning has since drawn criticism for both sides of the political aisle and will be seen as redundant this time around. Coney Barrett’s motherhood of 7 children and her adoption of two Haitian children has already drawn attention and may feature. Ultimately however, Coney Barrett has exhibited sharp acumen in responding to criticism and is expected to make it through the inquisitorial gauntlet.

The decision of the GOP to proceed with the hearing has drawn ire from Democrats who claim it represents hypocrisy as Republicans refused to allow Obama’s nomination for the Supreme Court his hearing just before the 2016 election. This seat (left vacant by the death of Antonin Scalia) was later filled by Trump nominee Neil Gorsuch. The fight over the seat is fast becoming a major flashpoint in the run-up to the 2020 election. Democratic candidate Joe Biden has branded the nomination an “abuse of power” and has not denied claims he would “pack” the Court should he reach the White House. This entails the president adding extra judges to the Supreme Court as the 9-strong membership is merely convention and not explicitly prescribed, albeit a long-standing convention. This judicial seat could be the rise or fall of a president.

Coney Barrett’s hearing before the Senate begins on Monday 18th October and will last for 4 days. Typically a Supreme Court nomination takes around 70 days to reach fruition however Trump has been lightning fast out of the traps with his pick and the entire might of the GOP political machine will turn to getting the nomination over the line before the election.

If successful, the court will, at least nominally be weighted 6:3 in favour of conservative judges. While all eyes turn to the sound and fury of a presidential election amidst a global pandemic and an increasingly unstable US, the effect of Coney Barrett’s appointment to SCOTUS could have a much longer lasting effect on US politics. Coney Barrett may well be making crucial decisions in the highest court in the land long after anyone remembers Donald J. Trump or Joe Biden.

 

 


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