Law & the Courts

Barrett Rising

Judge Amy Coney Barrett attends the third day of her Senate confirmation hearing on Capitol Hill, October 14, 2020. (Michael Reynolds/Pool via Reuters)

Judge Amy Barrett remains on track to confirmation to the Supreme Court at this writing. While Democrats have often tried to sink Republican nominees to the Court after their hearings have finished, their efforts against her have so far been half-hearted. They know they don’t have the votes to stop her, and they know they don’t have the materials to make her unpopular either.

So they used the hearings for two main purposes: to highlight issues that hurt President Trump rather than ones that are likely to cause her serious trouble, and to stroke the erogenous zones of their base. They have established that Barrett believes that some gun regulations are incompatible with the Second Amendment, that she is pro-life, and that she believes that Chief Justice John Roberts stretched the text of Obamacare in order to uphold it. All of these beliefs should be considered marks in her favor.

They have not established — they have not come within spitting distance of establishing — what they are trying to insinuate: that she would find flimsy legal pretexts for junking Obamacare, or would mow down all gun regulations, or would somehow prohibit in vitro fertilization.

Some Democrats attempted to portray Barrett’s use of the term “sexual preference” as a sign of hostility to gays and lesbians, an effort that fizzled, since the term has also been used, and recently, by leading Democrats and gay publications. Asked about the nontroversy, she said she had meant no offense. She should rest easy knowing no genuine offense was taken.

Repeated efforts to make Barrett promise to recuse herself from any election-related cases went nowhere, either. The existing rules for handling conflicts of interest do not bar justices from deciding politically sensitive questions of law just because their nominations and confirmations took place in a political context — a standard that would of course mean none of the justices could hear such cases. Perhaps President Trump hopes she would rule in his favor regardless of the legal merits; she has repeatedly said she has given no one any such assurances, and Trump’s other Supreme Court nominees have shown no hesitation about ruling in ways inconvenient to him.

Senator Charles Schumer, in the course of launching one of these feeble criticisms, slipped and called her “Justice Barrett.” He should probably get used to it.

The Editors comprise the senior editorial staff of the National Review magazine and website.

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