And then there were three. NBC, NPR, and the Associated Press report that Donald Trump has narrowed potential Supreme Court picks to Judge Brett Kavanaugh, on the U.S. Court of Appeals for the District of Columbia; Raymond Kethledge, of the U.S. Court of Appeals for the Sixth Circuit, hearing appeals from Kentucky, Michigan, Ohio, and Tennessee; and Amy Coney Barrett, of the U.S. Court of Appeals for the Seventh Circuit, covering Illinois, Indiana, and Wisconsin.
I say Trump picks Barrett, if he sticks to the three. She’s the youngest of the trio at 46, the most appealing, and, perhaps most importantly, the least attackable member of his final trio for Republicans rushing to confirm a justice before the midterms. She’s also from Vice President Mike Pence’s home state, Indiana, where Democrat Sen. Joe Donnelly faces re-election this year. Donnelly, along with Tim Kaine (D-VA) and Joe Manchin (D-WV), voted to confirm his fellow Hoosier to the appellate court less than a year ago. All three will now have to defend voting differently if they attempt to block her confirmation to the court.
Barrett’s credentials are solid. She was Phi Beta Kappa at Rhodes College and graduated summa cum laude from Notre Dame for law school. She clerked on the U.S. Court of Appeals for the District of Columbia, then for the late Justice Anthony Scalia. Barrett practiced law for a few years before heading into academia. The only real black mark is that a minority of the American Bar Association’s Standing Committee on the Federal Judiciary rated her “Qualified” rather than “Well Qualified” for her appellate seat.
Picking Barrett makes for a bigger shake-up than Trump would get out of either male candidate. Both Kavanaugh and Kethledge have been “feeder judges,” whose clerks are likely to go on to clerk at the Supreme Court, and conservative heirs apparent for years. Senate Republicans reputedly want Kavanaugh. But Trump nominated Barrett to the Seventh Circuit; if he also seats her on the Supreme Court, he’ll likely view it as his having bestowed the two most important opportunities of her career upon her. It’s easy to see Trump imagining this pick as an opportunity to claim total credit for a Supreme Court justice’s career, also indebting her to him in his loyalty-obsessed mindset, and thumbing his nose at the GOP at the same time.
Also consistent with the shake-up theory: Barrett didn’t go to Harvard or Yale as every other justice did. Trump has both coveted and ridiculed the educational elite, having graduated from Wharton but played the populist. Republicans would love a chance to hammer Democrats for being elitist were they to question her pedigree. Her personal life also stands out: She has seven children; every mention includes the fact that two were adopted and a third has special needs.
Let’s not forget gender. To his mind, Barrett’s gender gives Trump highly visible proof of his not having issues with women for both media and electoral mileage. (Expect her selection to set off another round of think pieces on Trump and women.) It also provides fodder for Republicans to attack Democrats for doing their job and exposing her as an ideologue with extremist views. Then there’s the fact that Trump loves to surround himself with attractive people. That goes double or more for women, since it’s the only thing he consistently values about women.
The proximity of Barrett’s appellate confirmation means she’s prepared: Her disclosures are in order, and she’s proven her mettle before the Judiciary Committee Democrats. If you’ll recall, the right didn’t just succeed in pushing Barrett through, they managed to create a national furor over Democratic senators’ inquiries into Barrett’s religious influences. (Yes, the same Republican Party that spent years claiming President Barack Obama is Muslim and vilifying him on that basis.)
Truth is, Barrett has chosen to be vocal about beliefs that would dictate certain judicial outcomes, even writing on that topic, and incorporated religion in contexts that make asking about tension between her faith and fidelity to the law not just fair but necessary. Barrett herself must believe these inquiries are important: She wrote a law review article addressing how Catholic judges should deal with the moral dilemma of participating in capital cases. Any senator who doesn’t interrogate whether a nominee will be improperly influenced isn’t doing their job. Impartiality is integral to the judiciary; the separation of church and state is fundamental to our democracy.
Barrett’s religious ties are concerning—and that’s coming from a Catholic who defended Scalia’s expression of his religious beliefs. The issue isn’t that Barrett’s religious, or that she is Catholic. Barrett belongs to a charismatic Christian group, People of Praise, that’s been described as cult-like and aims to shape members’ major decisions, exerting an influence over their lives that even the pope has cautioned against and critics have described as “thought control.” As confirmed by the group’s head, Craig Lent, members contribute at least 5 percent of their gross income and all believe life begins at conception and men are the leaders of the home.
Barrett’s also aligned with a number of uber-right groups. Her financial disclosure from her 2017 nomination to the Seventh Circuit lists honoraria from the Federalist Society, the hyper-conservative organization behind major campaigns to shoot down liberal nominees and attack progressive precedent, and the Alliance Defending Freedom, an organization that’s driven the right’s efforts to shape a “religious liberty” doctrine that protects those who discriminate rather than those discriminated against—so long as the basis for discrimination is moral or religious. The Southern Poverty Law Center has labeled ADF a hate group for its anti-LGBTQ efforts.
Barrett won’t hesitate to erase precedent to align the law with her extreme beliefs. The right likes to pay lip service to stare decisis, the principle that judges should uphold precedent in all but extreme circumstances, but the Roberts court conservatives have demonstrated a willingness—nay, eagerness—to reshape the law in their ideological image. Exhibit A: 2010’s Citizens United, the campaign finance decision that struck decades of law and precedent. Gorsuch, Trump’s first pick, has already written dissents that prove he’s more interested in rewriting law than upholding it—including on gay rights.
Barrett can be relied upon to assist. "I would tend to agree with those who say a justice’s duty is to the Constitution,” Barrett wrote in 2013, “and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”
Barrett’ll overturn Roe v. Wade in a flash. Her disregard for precedent, a insinuation that Roe was wrongly decided, and refusal to comment on that case—along with Trump’s promise to appoint only pro-life justices—spell doom for reproductive freedom broadly. And if Trump’s going to ensure Roe falls as a result of his pick, having a woman deliver the fatal blow makes for better optics and a greater aura of legitimacy than any all-male majority can confer. The addition of a young woman to the conservative bloc could also offer a gloss of progress to deflect fallout from enshrining anti-LGBTQ views championed by ADF.
There are a dozen more reasons that Barrett’s not just the kind of pick that appeals to Trump, but a good nominee for the Republican Party. The GOP will have a field day attacking Democrats for sexist and anti-religious motivations when they fight her confirmation—a great way to rile up their base in advance of the midterms. In sum, Barrett’s nomination promises advantages over Kavanaugh or Kethledge not just in committee and on the floor but in the public eye.