Law & the Courts

Wanted: Justice Amy Coney Barrett

Judge Amy Coney Barrett testifies before the Senate Judiciary Committee, September 6, 2017. (via C-SPAN)
The fight to confirm Barrett would contain edifying political lessons.

The mental relief that one will never again have to read an opinion written by Justice Anthony Kennedy is enough to satisfy for weeks. Just be glad for this, I’m telling myself. We never have to hear this man explain that his job is to “impose order on a disordered reality.” In an America of 300 million people, the likelihood of finding a new justice with Kennedy’s self-regard is near zero. After all, Donald Trump is unlikely to appoint himself.

But we must refuse the natural complacency that should settle on a normal and well-adjusted people who have survived the rule of Anthony Kennedy. We must press ahead. To do so, Donald Trump should appoint Amy Coney Barrett to the highest court in the land.

There are many good and fine people rumored to be on President Trump’s short list of candidates for the Supreme Court, including Amul Thapar and Senator Mike Lee. But Barrett’s qualifications match them all.

And her appointment, in particular, has several political advantages. Millions of Republicans held their noses and voted for Trump because they felt it was necessary to protect the liberty to practice their faith. The fight over Barrett’s confirmation would almost certainly build trust between President Trump and social conservatives. It would energize Republicans ahead of the midterm elections.

The facts of Barrett’s life — that she is a mother of seven children, and that when she speaks about her Catholic faith, she speaks about God as if she really believes in His existence — will provoke nasty and bigoted statements from Democratic senators and liberal media personalities. Again.

You may recall that this has already happened. In 2017, during confirmation hearings for a seat on the Seventh Circuit, Senator Dianne Feinstein surveyed Barrett’s public statements on her personal faith and told her that she worried that “the dogma lives loudly within you.” The bizarre idiom she created was a sign that Feinstein didn’t have an easy way to say what she wanted to say: A Catholic is fine. A believing Catholic is not.

The Feinstein incident caused Christopher L. Eisgruber, president of Princeton University, to publicly defend Barrett and her writings on how her faith relates to her duties as a judge. He then urged against what he saw as an emerging religious test. “In my view,” Eisgruber wrote, “Professor Barrett’s qualifications become stronger by virtue of her willingness to write candidly and intelligently about difficult and sensitive ethical questions: Our universities, our judiciary, and our country will be the poorer if the Senate prefers nominees who remain silent on such topics.”

It won’t just be her faith. In 2012, a columnist chastised two Republican presidential candidates for their “smug fecundity.” For Barrett, the comments on the number of children she has are likely to be much worse. The fact is that women nominated for positions of authority often inspire hysterical and self-defeating reactions in those who oppose them. And it will likely be other women who dislike Barrett’s way of life who will make the ugliest remarks. Trump will very likely understand the dynamics at play instinctively.

Now, it would be churlish to choose Barrett only because her nomination will cause some Democrats to bleep, bloop disconcertingly before entering into auto-destruct mode. It would be good to nominate her, however, because the fight to confirm her will contain edifying political lessons. We don’t have religious tests for public office in this country, and having a republic that does not have an established religion does not require excluding sincere believers from positions of authority.

We don’t have religious tests for public office in this country.

Liberals have lately internalized the idea that so long as they can justify their policy preferences as having egalitarian motives or ends, they should be able to compel religious people to conform to liberal moral norms — which just so happen to track exactly to doctrinal developments in the once dominant Mainline Protestant churches. The ACLU would compel Catholic hospitals to perform abortions. The last administration wanted to compel Notre Dame to offer contraceptives as part of its compensation to employees. The baker will be made to cater at the private solemnities that offend his conscience. Evangelicals at a crisis pregnancy center will be made to advertise for abortion.

An Amy Coney Barrett nomination fight would contain an even deeper lesson, one that is salutary for both liberal secularists, who once indulged in triumphalism, and conservative believers, who have been tempted to despair: Believing Catholics and Evangelicals will continue to make their contributions to the common good of this country. You will live with us. If we’re going to have peace, we’re going to make it together.

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