On Monday, President Trump will unveil his nominee to replace Anthony Kennedy on United States Supreme Court. If certain reports are to be believed (see update), the White House has narrowed its choices to Judge Brett Kavanaugh of the DC Circuit Court of Appeals, and Judge Amy Barrett of the 7th Circuit Court of Appeals. Kavanaugh, 53, is a former Kennedy clerk, Bush administration alumnus, and Yale Law School graduate who's sat on the federal bench since 2006. Barrett, 46, clerked for Scalia and was confirmed to her current perch just last year, having distinguished herself as an academic prior to her 2017 appointment.
Liberal activists are launching preemptive attacks on all of Trump's rumored picks (the president has interviewed at least five candidates, including Sen. Mike Lee), circulating an account of Kavanaugh allegedly calling Hillary Clinton the B-word in the 1990's -- a claim advanced by a rather unreliable source. Some conservatives have wondered whether Kavanaugh would be a reliable originalist, doubts against which other conservative judiciary watchers have pushed back pretty forcefully. But the opposition's most ferocious criticisms have been leveled against Barrett, a young, female constitutional conservative. Some Senate Democrats trod dangerously close to the unconstitutional 'religious test' line during her confirmation hearings last fall, suggesting that her adherence to orthodox Catholicism evinced a potentially-disqualifying ideological "dogma." This approach drew strong rebukes from Barrett supporters, some of whom believe that a repeat performance from Democrats, under a brighter spotlight, would offend legions of voters. Senate Minority Leader Chuck Schumer has been laying the groundwork for a furious opposition campaign against Judge Barrett, if she's the pick:
Amy Coney Barrett is a judge on the Court of Appeals for the 7th Circuit & on @realDonaldTrump’s pre-approved list for SCOTUS. She passed his “litmus test” on overturning Roe v. Wade & striking down the ACA. Here’s where she stands on Americans' big issues:
— Chuck Schumer (@SenSchumer) July 2, 2018
The resulting laundry list was marked by speculative, fear-mongering distortions, especially Schumer's assertion about a supposed "litmus test" on abortion -- which the president has effectively disavowed. As Matt mentioned earlier in the week, the left-wing Center for American Progress, which has been utterly embarrassing itself lately, also fired a spurious 'racism' shot at Barrett. This motive-impugning charge would be bogus even if they had gotten their facts straight; it's even more of a laughable smear considering that Barrett wasn't a member of the panel of judges who rendered the decision in question. In fact, she wasn't even on the court when the case was considered. These sloppy, reckless spasms serve as a preview of the hysteria that would accompany a Barrett SCOTUS nomination. Democrats see her as an unacceptable threat: A smart young woman who would help shift the Court's ideological posture decidedly to the right. That's why elements of the professional Left are also spreading rumors about Barrett's membership in a religious "cult," an outrageous accusation that reeks of bigotry and desperation. The claim is so appalling that a former Obama administration official felt compelled publicly slapped it down (adding a mocking knife-twist), with an uber-liberal MSNBC host practically begging his audience to avoid spreading it, likely recognizing how badly such ugliness could backfire:
If Barrett is the nominee, and Democrats take an approach like the below, there will be serious political ramifications and they will not be good for Democrats. https://t.co/Y6SaRi7mFa
— Michael Wear (@MichaelRWear) July 2, 2018
Please read this, and stop with the “cult” stuff. Please. https://t.co/rRGnsMBzgS
— Chris Hayes (@chrislhayes) July 3, 2018
One of the more reasonable objections to Barrett is her relatively paltry experience as a federal judge. If she's nominated and confirmed along the anticipated timeline, she could join SCOTUS in October, meaning that her tenure on the lower court would have lasted a little less than one year. A few counterpoints to this critique: (1) The venerable former Chief Justice William Rehnquist opined years ago that more background diversity (i.e. not a string of promoted lower court judges) would be welcome for a more balanced Court. (2) Prior to their SCOTUS nominations, Justice Clarence Thomas and Chief Justice John Roberts had only served in their capacities as lower-rung federal judges for roughly 16 months and 25 months, respectively. (3) Justice Elena Kagan had zero experience as a federal judge when she was nominated by President Obama in 2010. Her most recent position had been US Solicitor General, preceded by a lengthy stint in academia. Some useful context, perhaps.
If Barrett is the selection, the Left will also seek to make a big deal out of stare decisis, a principle to which they zealously adhere...when it fits their ideological interests. Roe v. Wade must be considered sacroscant, 'settled law' that ought not be revisited, they intone -- even as they'd happily cheer a liberal majority overturning Citizens United (political speech) or Heller (gun rights) at the earliest opportunity. Barrett would no doubt be prepared to handle such questions, especially since she just recently endured the confirmation process ringer (and continues to be targeted with highly misleading claims on this subject). It's worth noting that despite being 'controversialized' by the Left, Barrett was approved with 55 Senate votes last year, earning support from every Republican (including Senators Collins and Murkowski), and three Democrats (Joe Manchin, Joe Donnelley, and Tim Kaine).
Would Roe supporters Collins and Murkowski really be willing to reverse themselves to derail the nomination of someone they'd just recently green-lit to an influential, powerful judicial position? Especially if she's a well-qualified woman? I suppose they could argue that SCOTUS is a different story, but playing the 'extremist' card would be awfully difficult. And while Kaine is likely ripe for a flip-flop, would either Democratic Joe want to cross President Trump on such a critically important and closely-watched vote so close to election day? Voting to support Barrett, as they each did quite recently, would be the path of least resistance -- especially in light of their 'ayes' for Justice Gorsuch. It's worth noting that abortion radical Heidi Heitkamp of North Dakota saluted Chuck Schumer on Barrett last time around. Would she do so again? And although she didn't vote on Barrett's nomination, phony moderate Claire McCaskill's track record makes her a virtual lock to join Bernie Sanders, Elizabeth Warren, Kamala Harris and the hard Left in attempting to obstruct any conservative Trump nominee to SCOTUS.
Parting Thought: Schumer's threats and admonitions should be disregarded, particularly considering his party's long history of bare-knuckled obstruction and power grabs on this front. I suspect he's regretting going along with Harry Reid's nuclear gambit in 2013, and for foolishly embracing his base's unprecedented filibuster demand during the Gorsuch confirmation period. He's stripped himself of his most potent tools for opposition, having done so in pursuit of short-sighted partisan ends. That's his problem, not Mitch McConnell's.
UPDATE - According to Fox News correspondent John Roberts, the top two (or is it three?) contenders for the job are Judges Kavanaugh and Kethledge (regarded by many as Gorsuch 2.0), both of whom were on the supposed 'final five' list we wrote about last week:
.@FoxNews is told that @realDonaldTrump has completed the interview process for his @USSupremeCourt pick. Raymond Kethledge and Brett Kavanaugh are said to be the front-runners to replace Justice Kennedy. Announcement Monday night.
— John Roberts (@johnrobertsFox) July 5, 2018
So does that mean Barrett is out? No, Roberts reports, she's still in it:
3. Barrett still in the running
— John Roberts (@johnrobertsFox) July 5, 2018
But did she underwhelm in her interview? Hmmmm:
Re you Barret interview speculation, from here: https://t.co/4qSGPrL1Ow pic.twitter.com/zQ3vH7hU1e
— TCOT 2014 (@tcot2014) July 5, 2018
A headfake, or has her stock seriously dropped? And has Kethledge's risen? From the same Politico story: "A source familiar with the interviews Trump conducted last week with candidates said the president 'loved' Kethledge and hit it off with him."
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