By nominating Judge Amy Coney Barrett to the Supreme Court, President Donald Trump took the first step Saturday toward solidifying a 6-3 conservative majority on the high court, a shift that could usher in sweeping changes to health care, as well as abortion, voting and gun rights. But the moment also served as an overture to female voters as Trump tries to address a historic gender gap in the polls.
As Barrett spoke in the Rose Garden before an audience that included her seven children – as a nominee, Trump noted, who could become the first mother of school-aged children to serve on the high court – she showed how challenging it will be for Democrats to vilify her as a frightening figure who would join the court’s conservative majority in rolling back abortion rights and stripping Americans of their health care protections.
The federal appellate judge, who clerked for Supreme Court Justice Antonin Scalia in the late 1990s, was introduced Saturday evening by Trump as a woman with a “towering intellect” and “unyielding loyalty to the Constitution” whom he chose because she is one of the “nation’s most brilliant and gifted legal minds.”
In her own speech, Barrett skillfully conveyed the attributes of her judicial philosophy that have endeared her to conservatives. But she also touched on elements of her own biography as a “room parent, carpool driver and birthday party planner” that seemed intended to make her a relatable figure to the key voting bloc of suburban independent and Republican-leaning women who could be unnerved by her conservative views on abortion and health care.
At a ceremony that the White House choreographed as a near replica of the 1993 event where then-President Bill Clinton nominated Ruth Bader Ginsburg, the 48-year-old judge spoke in reverent terms of the liberal icon she would replace, stating that she would be “mindful of who came before me.” Barrett noted that Ginsburg began her career “at a time when women were not welcome in the legal profession,” yet “she not only broke glass ceilings, she smashed them.”
In a tacit plea for bipartisanship before the contentious confirmation hearings that will begin on October 12 and that Republicans hope to have wrapped by Election Day, Barrett spoke of her admiration for how the friendship between Scalia, who she called her mentor, and Ginsburg showed “that arguments – even about matters of great consequence – need not destroy affection,” a standard she said she has applied in her own personal and professional relationships.
But Barrett also unequivocally cast herself as an acolyte of Scalia, a conservative firebrand who was defined by his “originalist” approach to interpreting the Constitution, stating that he had “an incalculable influence” on her life.
“His judicial philosophy is mine too – a judge must apply the law as written,” Barrett said of Scalia. “Judges are not policymakers and they must be resolute in setting aside any policy views they might hold.”
Meet Amy Coney Barrett
Trump and his allies hope that the nomination, and the President’s recognition of Barrett’s balancing act as an accomplished jurist and working mother, could help the President win back some of the conservative women who he has alienated with his leadership style and handling of the pandemic.
But it is difficult to predict whether Trump’s pick will have a definitive impact on the presidential race because Americans hold such firmly defined opinions of Trump and there are few persuadable voters left. Barrett’s conservative credentials and the rightward swerve of the high court, however, could hurt the reelection prospects of vulnerable Senate Republicans, who are struggling to solidify their hold on the GOP base without alienating independent-minded, socially-liberal voters.
Democrats focus on health care
Democrats quickly sought to re-center the conversation Saturday evening on the threats that a 6-3 conservative court could pose to the Affordable Care Act and abortion rights, while Republicans tried to keep the focus on Barrett’s compelling personal story, as a woman who is balancing her duties on the 7th Circuit Court of Appeals with the care of her young children, including two children she and her husband adopted from Haiti and one born with Down syndrome.
Former Vice President Joe Biden, along with many other Democratic leaders, focused on the most immediate challenge to the Affordable Care Act. Oral arguments are scheduled one week after the election in a case brought by a coalition of Republican attorneys general and the Trump administration, who argue that the law’s individual mandate is unconstitutional and there are legal grounds for striking down the law in its entirety.
“President Trump has been trying to throw out the Affordable Care Act for four years. Republicans have been trying to end it for a decade. Twice, the U.S. Supreme Court upheld the law as constitutional,” Biden said in a statement. Barrett, he said, “has a written track record of disagreeing with the U.S. Supreme Court’s decision upholding the Affordable Care Act. She critiqued Chief Justice John Roberts’ majority opinion upholding the law in 2012.”
View Trump and Biden head-to-head polling
The former vice president argued that the Senate should not act on Trump’s nomination of Barrett until “after the American people select their next president and the next Congress,” claiming that the American people are currently voting “because their health care hangs in the balance.” Biden noted that medical complications from Covid-19 have created a new set of pre-existing conditions, protections for which could disappear if the ACA is struck down.
But polling by the Kaiser Family Foundation, which has tracked public opinion on the health care law since its passage in 2010, shows that the country is still divided over the Obama-era healthcare law. Their survey earlier this month found that only about half of Americans (49%) hold a favorable opinion of the Affordable Care Act – with more than 80% of Democrats backing the law, compared with 48% of independents and 16% of Republicans.
California Sen. Kamala Harris, the Democratic vice presidential nominee who sits on the Senate Judiciary Committee that will hold Barrett’s confirmation hearings, said Barrett would “undo (Ginsburg’s) legacy and erase everything she did for our country.”
“Trump’s hand-picked successor to Justice Ginsburg’s seat makes it clear: they intend to destroy the Affordable Care Act & overturn Roe,” Harris said on Twitter, referring to the landmark Roe v. Wade decision that affirmed the right to an abortion. “This selection would move the court further right for a generation & harm millions of Americans.”
Trump favors overturning Roe vs. Wade. Barrett has suggested opposition to abortion rights, but like most conservative judicial nominees, has been cautious in her answers about the case.
During a 2013 lecture at Notre Dame, she said she thought it was “very unlikely at this point that the court is going to overturn (Roe v. Wade),” adding that “the fundamental element, that the woman has a right to choose abortion, will probably stand.”
Notable dissents from Judge Amy Coney Barrett
In an extended back-and-forth on Roe with California Sen. Dianne Feinstein in 2017 during her confirmation hearings for the 7th Circuit Court of Appeals, Barrett told the Democratic senator she did not want to comment about her agreement or disagreement with any one Supreme Court precedent, because she said she would commit, if confirmed to the appellate court, to “follow unflinchingly all Supreme Court precedent.”
When pressed on how she evaluated the precedents related to Roe, she offered a narrow answer about how she viewed her role as an appellate judge: “Roe has been affirmed many times and survived many challenges in the court,” Barrett said during that 2017 hearing. “And it’s more than 40 years old, and it’s clearly binding on all Courts of Appeals. And so it’s not open to me or up to me, and I would have no interest in, as a Court of Appeals judge, challenging that precedent. It would bind.”
But for now, Democrats seem most focused on Barrett’s potential impact on health care coverage as an issue that could animate a broader group of voters, at a time when many are already casting their ballots by mail.
They are also hoping to avoid the mistakes their party made during the 2017 hearing, when Feinstein’s probing questions about how Barrett’s Catholic faith might affect her judicial opinions made the Notre Dame professor a hero to religious conservatives who argued that Democrats had showed anti-Catholic bias.
A polarizing new element in fast-approaching election
The highly-charged policy debates that will emerge during Barrett’s upcoming confirmation hearings – which are also expected to focus on how she would handle election disputes as the President makes his baseless claims about voter fraud – carry the most potential damage for endangered GOP senators like Susan Collins of Maine, Thom Tillis of North Carolina, Cory Gardner of Colorado and Martha McSally of Arizona, who are trying to shore up their support within Trump’s base while also appealing to suburban moms, many of whom favor abortion rights.
On the flip side, some in the GOP have argued that the nomination process could help Republican senators in red states like Alaska, Kansas and South Carolina who are being targeted by Democrats this year.
While CNN polling has shown that nearly six in 10 Americans believe that the winner of the presidential election in November should choose the justice who replaces Ginsburg on the high court, there is no definitive data yet to show whether Trump’s choice has been more animating to conservatives or progressives – and whether it will actually move votes at the margins.
But much of politics is about perception. And in the case of judicial nominees, their bearing and demeanor in these high-pressure appearances can often influence voters’ opinions as much as their writings and opinions. With her adroitly tailored speech and her promise to serve all Americans during her debut on Saturday, Barrett proved that she will be a formidable adversary for Democrats in the weeks to come.