Possible SCOTUS Nominee Amy Coney Barrett Is No Brett Kavanaugh — That’s A Big Problem For Democrats

With the passing of Supreme Court Justice Ruth Bader Ginsburg on Friday night, President Trump has is expected to announce his nominee to replace her this week. At the top of the list is Seventh Circuit Court of Appeals Judge Amy Coney Barret, a 48-year old conservative jurist. While many Democrats will likely find her judicial perspectives troubling, the most troubling thing about her is the simplest to discern…

She’s no Brett Kavanaugh.

Barrett, a former law professor at the University of Notre Dame, was nominated by Trump to the Seventh Circuit Court in 2019. She has been a federal judge for less than three years, which means that Barrett has a limited judicial track record of opinion to examine. Nonetheless, as a clerk for the late Justice Antonio Scalia, she shares his judicial philosophy of originalism — the belief that the Constitution should be interpreted in the manner in which the framers originally intended.

Supreme Court nominees are picked for a variety of reasons though, not just their judicial record. When President Trump picked Justice Brett Kavanaugh to succeed Justice Anthony Kennedy, it was said that he passed over Barrett to “save her” as the potential replacement for Ginsburg, liking the optics of replacing one woman on the high court with another. On Sunday, Trump said it is “very likely”  he will nominate a woman.

“It will be a woman. A very talented, very brilliant woman.” Trump said on Saturday. “I think it should be a woman. I actually like women much more than I like men.”

But it’s more than just the gender of the candidate that will be the biggest factor in Trump’s selection. It’s likely that the nomination process of his last appointment, Justice Brett Kavanaugh, will factor heavily in the potential selection of Barrett or another women candidate., as well as the confirmation process itself.

Kavanaugh’s confirmation hearings were the most fraught in decades, leaving both the Senate and the nation highly divided over his confirmation. While ultimately confirmed by a Senate vote of 50-48, it was only after a volatile process in which the Senate judiciary committee, and the entire Senate, were forced to reckon with accusations of sexual misconduct made against Kavanaugh by three women. One of the women, Christine Blasey Ford, a high school classmate of Kavanaugh’s, testified before the Judiciary Committee, prompting additional testimony by an infuriated Kavanaugh. The television spectacle of the nominee for the Supreme Court being accused of sexual misconduct was reminiscent of the confirmation of Justice Clarence Thomas, who was also accused of inappropriate sexual misconduct by his former colleague,Anita Hill.

With Barrett, however, it is unlikely that such a situation would repeat itself. The devout Catholic mother of seven children faced no such issues during her confirmation in 2017. Additionally, while Kavanaugh had a personal style that became quite aggressive, and, at some moments he seemed even belligerent in his confirmation hearing, Barrett handled her last conformation hearing without incident. The reality is, without a thick record of judicial decisions to reference, and a seemingly uncontroversial past, it would appear Barrett would be a hard target for Democrats to criticize.

That’s not to say there aren’t issues the Democrats can use to challenge Barrett. She is unapologetically conservative and pro-life, and has also been known to be a person of deep faith, with reports of her viewing herself as a “different kind of lawyer” who holds the belief that a “legal career is but a means to an end… and that end is building the Kingdom of God.”  During her U.S. Circuit Court confirmation, Barrett claimed she believes fully in stare decisis, a legal principle of respecting of precedent and settled law. Yet several experts have also speculated that she could join the other conservative members of the Court in striking down Roe v. Wade, or limiting its application.

Nonetheless, with the nation less than 40 days away from November 3rd, and Democrats declaring all-out war on a nomination process so close to an election, the best asset the Republicans might have in the fight over the next Supreme Court Justice is the candidate. If it is another Kavanaugh, then perhaps the Democrats have a fighting chance of slowing or even stopping the nomination.

But if it is a candidate like Judge Barrett, then it might only the process that is an issue.

And for Democrats, that’s a supreme problem.

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