WASHINGTON (AP) — Four years ago, Amy Coney Barrett was a little-known law professor in Indiana. Within weeks, she is likely to be the newest associate justice on the U.S. Supreme Court.
Barrett’s fast-track rise, set to drive the nation’s highest court to the right for a generation or longer, is the fulfillment of a decadeslong effort by conservatives to remake the federal bench that kicked into high gear after President Donald Trump was elected. For Trump, whose 2016 victory was bolstered by white evangelicals’ reluctant support of his candidacy tied to his promise to fill the seat vacated by the death of Supreme Court Justice Antonin Scalia with a conservative, the latest nomination brings his first term full circle.
Even before Ruth Bader Ginsburg’s death, Trump was campaigning for reelection in 2020 on his record of confirming more than 200 federal judges during his first term, fulfilling a generational aim of conservative legal activists.
“Today’s nomination is the capstone of a more than four-year process where the president seized upon the issue, stayed focused, and called attention to a small bench of very talented people who he could put on the Supreme Court,” said Leonard Leo, of the conservative Federalist Society.
The following account is based on information from five people familiar with the process and the president’s thinking who were not authorized to speak publicly about the details.
Within weeks of Trump’s victory in 2016, incoming White House counsel Don McGahn, Leo and a handful of other attorneys set about drawing up lists of potential nominees for more than 100 federal judicial vacancies. First among them was the Supreme Court vacancy created by the death of Scalia, but they also dug deeper.
Barrett, then a law professor at Notre Dame, was not well known in political circles in Indiana and almost unheard of nationally. But she found herself on the list of potential picks for the 7th U.S. Circuit Court of Appeals, in large part thanks to McGahn. A fellow Notre Dame alum, McGahn knew Barrett from conservative legal circles, like Leo’s influential Federalist Society, and talked her up to the Indiana congressional delegation.
Barrett faced a bruising nomination battle for the appellate seat in 2017 that caught the attention of Trump, who was impressed with her ability to keep her cool under critical questioning by Democratic senators, including a grilling by Sen. Dianne Feinstein of California regarding her Catholic faith.
“I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you,” Feinstein said. “And that’s of concern when you come to big issues that large numbers of people have fought for, for years in this country.”
Barrett’s was the only confirmation hearing for an appellate judge that McGahn sat through in person on Capitol Hill, and the only investiture he attended when she took her seat on the 7th Circuit. After Barrett was confirmed 55-43, with three Democrats voting to confirm, some White House lawyers made coffee mugs with the phrase: “The dogma lives loudly within you.”
Months later, in the fall of 2017, Trump set about updating his list of potential nominees to the Supreme Court. Five names were presented to him in an Oval Office meeting with McGahn and Leo. Among the names: Barrett and Brett Kavanaugh. McGahn unveiled the list weeks later at a Federalist Society conference in Washington.
The following year, after Justice Anthony Kennedy retired, Barrett found herself on the short list, undergoing a White House vetting and a 25-minute interview with Trump.
But some conservatives were concerned about her sparse record, worried she’d end up like other potentially conservative justices who veered in a more moderate direction, a trap they fell into with Justice David Souter. Still, Trump saw something he liked, and allies like Scalia’s widow, Maureen, and Fox News host Sean Hannity spoke highly of her. Trump and McGahn set about elevating Barrett’s profile for the next opening on the high court –- with Trump telling some aides he was “saving” her for Ginsburg’s seat.
Meanwhile, Barrett was making a name for herself on the 7th Circuit on conservative hot-button issues. She twice wanted decisions to be thrown out and reheard by the full appeals court that had blocked laws enacted by abortion-rights opponents. Oftentimes, the full panel comes to a different conclusion.
Last year, after a three-judge panel blocked an Indiana law that would make it harder for a minor to have an abortion without her parents being notified, Barrett voted to have the case reheard by the full court.
In a dissent in the 2019 gun-rights case of Kanter v. Barr, Barrett argued that a conviction for a nonviolent felony — in this case, mail fraud — shouldn’t automatically disqualify someone from owning a gun.
Barrett wrote a unanimous three-judge panel decision in 2019 making it easier for men alleged to have committed sexual assaults on campus to challenge the proceedings against them.
This summer, when Trump announced he wanted to update the Supreme Court list once again in hopes of motivating conservative voters, Barrett was on the top. And that’s where she stayed.
Barrett, in some ways, was the standard by which Trump judged other women for the list, including Florida’s Barbara Lagoa and North Carolina’s Allison Rushing. Their names made the list, but they weren’t threatening to bump Barrett from the top, the people said.
After Ginsburg’s death, Trump quickly turned his focus to Barrett and never truly looked elsewhere.
Conservative outside groups, aware of Trump’s interest in Barrett from the Kennedy replacement, were already on board, offering public statements of support even before Trump had made a final determination.
In the end, Barrett was the only candidate Trump interviewed in person for Ginsburg’s seat. And on Saturday evening, he formally announced his choice at a Rose Garden ceremony that included a military band and a display of American flags hanging between the columns of the White House colonnade.
“Today it is my honor to nominate one of our nation’s most brilliant and gifted legal minds to the Supreme Court,” Trump said of Barrett, calling her “a woman of unparalleled achievement, towering intellect, sterling credentials and unyielding loyalty to the Constitution.”
Barrett, for her part, thanked the president as she introduced herself to the country. “I am truly humbled by the prospect of serving on the Supreme Court,” she said.
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This story has been corrected to show that Barrett’s 2017 confirmation was not along party lines. It was 55-43, with three Democrats voting to confirm.
Barrett could be Ginsburg’s polar opposite on Supreme Court
WASHINGTON (AP) — Amy Coney Barrett paid homage to Justice Ruth Bader Ginsburg in her White House speech Saturday as a shatterer of glass ceilings. She said she would be mindful of the woman whose place she would take on the Supreme Court.
She even commented that her children think their father is the better cook, much as Ginsburg used to talk about her husband’s prowess in the kitchen.
But the replacement of the liberal icon Ginsburg, the second woman to serve on the high court, by Barrett, who would be the fifth, would represent the most dramatic ideological change on the Supreme Court in nearly 30 years and cement conservative dominance of the court for years to come.
Barrett, a judge on the federal appeals court based in Chicago, made clear in her Rose Garden address that she looks to conservative Justice Antonin Scalia, for whom she once worked, and not Ginsburg, on matters of law.
“His judicial philosophy is mine, too. Judges must apply the law as written. Judges are not policy makers,” Barrett said. She was referring to their common method of interpreting laws and the Constitution based on what they were understood to mean when they were written.
Ginsburg, who died this month at age 87, and Scalia were dear friends, but they were on opposite sides of the most divisive issues of the day.
Barrett’s conservative judicial record, her writings and speeches suggest that she too would be Ginsburg’s polar opposite on a range of issues that include abortion and guns.
Barrett has cast votes suggesting she would uphold state abortion restrictions that Ginsburg found violated the Constitution. Barrett also favors a more expansive interpretation of gun rights.
Ginsburg believed deeply that the Constitution protects a woman’s right to an abortion. She was a firm opponent of a broad reading of the constitutional right to “keep and bear arms.”
The differences don’t stop there. Barrett has been critical of Chief Justice John Roberts’ opinion upholding the Affordable Care Act, which is again facing a constitutional challenge at the Supreme Court. Ginsburg was one of five votes that saved the law on two prior occasions.
If Barrett is confirmed before the Nov. 3 election, she would get a chance to weigh in on the latest lawsuit to overturn Obamacare, which is set for arguments a week later.
The contrast between Ginsburg and Barrett most resembles the differences between Justice Thurgood Marshall and the man who replaced him in 1991, Justice Clarence Thomas.
Marshall was part of the majority in the 1973 Roe v. Wade decision that declared a nationwide right to abortion. In his first year on the court, Thomas joined a dissenting opinion arguing that Roe should be overturned.
Marshall was a firm supporter of affirmative action programs in education and a fervent opponent of the death penalty. Thomas holds opposing views on both issues.
The backgrounds of Barrett and Ginsburg also are very different. Barrett is a Catholic from New Orleans. The Brooklyn-born Ginsburg was Jewish. Barrett had the chance to serve as a Supreme Court clerk. Ginsburg was able to secure a clerkship with a lower-court judge only after the intervention of a law school professor.
But they both taught at law schools and became appeals court judges in their mid- to late-40s. The both focused on procedural and technical legal issues in their scholarship.
The debate over Barrett’s confirmation already is raging, with one focus on gun rights.
Ginsburg was not part of the majority in the Supreme Court’s two major gun rights decisions in 2008 and 2010. But the court had been reluctant to take on big new cases involving gun restrictions.
Barrett’s ascension to the Supreme Court could give gun rights advocates the vote they need to bring the issue back to the court in the near future.
Both her supporters and detractors have pointed to her 2019 dissent in which she argued that federal and Wisconsin laws prohibiting someone convicted of a serious crime from owning a gun should not necessarily apply if the conviction was for a nonviolent crime.
The two judges in the majority agreed with Trump administration arguments that the defendant, Rickey Kanter, could not own a gun. Barrett wrote that “while both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data that disarming Kanter substantially advances that interest.”
She said that her colleagues were treating the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” Barrett quoted from a 2010 opinion by Justice Samuel Alito that extended gun rights, but the phrase also has been used more recently by Justice Clarence Thomas and other conservatives to complain that the Supreme Court has shied away from recognizing gun rights.
Hannah Shearer, litigation director of the pro-gun control Giffords Law Center, said that the National Rifle Association backed Barrett’s nomination to the appeals court. The dissenting opinion, Shearer said, showed “it didn’t take long for the NRA bet on Judge Barrett to pay off.”
Conservative commentator Ed Whelan, also a onetime Scalia law clerk, praised the opinion for its “masterful application” of the originalist method of interpretation that Scalia favored to show that Kanter should not be barred from owning a gun.
Her words: Amy Coney Barrett on faith, precedent, abortion
Some notable quotes from Supreme Court nominee Amy Coney Barrett, a former Notre Dame law professor and current judge on the Chicago-based 7th U.S. Circuit Court of Appeals. President Donald Trump on Saturday announced he was nominating Barrett to fill the seat vacated by the death of Justice Ruth Bader Ginsburg.
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ON JUDICIAL NOMINEES
“However cagey a justice may be at the nomination stage, her approach to the Constitution becomes evident in the opinions she writes. … It would be difficult for a modern justice to avoid revealing her position on whether the original public meaning of the Constitution controls its interpretation.” — 2013 article in the Texas Law Review.
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“We shouldn’t be putting people on the court that share our policy preferences. We should be putting people on the court who want to apply the Constitution.” — 2016 speech at Jacksonville University’s Public Policy Institute.
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ON ABORTION
“If anything, the public response to controversial cases like Roe (v. Wade) reflects public rejection of the proposition that (precedent) can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging. Court watchers embrace the possibility of overruling, even if they may want it to be the exception rather than the rule.” — 2013 article in the Texas Law Review, citing Roe v. Wade, the 1973 landmark ruling that recognized a woman’s right to abortion.
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“I think it is very unlikely at this point that the court is going to overturn (Roe v. Wade). … The fundamental element, that the woman has a right to choose abortion, will probably stand.” — 2013 lecture at Notre Dame on the 40th anniversary of the Roe v. Wade ruling.
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“I don’t think abortion or the right to abortion would change. I think some of the restrictions would change … The question is how much freedom the court is willing to let states have in regulating abortion.” — 2016 remarks on how a conservative Supreme Court could alter current law on abortion, saying it wasn’t likely to try and overturn Roe v. Wade. She said the questions the high court would be willing to address would be states’ restrictions on abortions, including how abortion clinics operate.
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ON FAITH AND POLITICS
“(Catholic judges) are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty. They are also obliged to adhere to their church’s teaching on moral matters.” — 1998 article co-written by Barrett in the Marquette Law Review on how some Catholic judges would feel torn on certain legal questions because of the teachings of their faith.
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“If you’re asking whether I take my faith seriously and I’m a faithful Catholic — I am, although I would stress that my personal church affiliation or my religious belief would not bear in the discharge of my duties as a judge.” — Confirmation hearing in 2017 before the Senate Judiciary Committee considering her nomination to be a 7th Circuit appeals judge, after Sen. Dick Durbin asked her if she was orthodox Catholic.
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“Never. It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else on the law.” — 2017 confirmation hearing.
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“I totally reject and I have rejected throughout my entire career the proposition that, as you say, the end justifies the means or that a judge should decide cases based on a desire to reach a certain outcome.” — 2017 confirmation hearing.
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“I would decide cases according to rule of law, beginning to end, and in the rare circumstance that might ever arise — I can’t imagine one sitting here now — where I felt that I had some conscientious objection to the law, I would recuse. I would never impose my own personal convictions upon the law. — 2017 confirmation hearing.
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“I can’t think of any cases or category of cases in which I would feel obliged to recuse on the grounds of conscience.” — 2017 confirmation hearing.
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“A judge may never subvert the law or twist it in any way to match the judge’s convictions from whatever source they derive.” — 2017 confirmation hearing.
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ON PRECEDENT
“In the Supreme Court, (adhering to precedent) is a soft rule; the Court describes it as one of policy rather than as an ‘inexorable command.’” — 2013 article in the Texas Law Review.
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“Leaving room for new majorities to overrule old ones allows changed membership to change what the Court says the Constitution means.” — Texas Law Review.
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“If the Court’s opinions change with its membership, public confidence in the Court as an institution might decline. Its members might be seen as partisan rather than impartial and case law as fueled by power rather than reason.” — Texas Law Review.
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A justice must “think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps.” — Texas Law Review.
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“Institutional features of Supreme Court practice permit all Justices to let some sleeping dogs lie, and so far as we are aware, no one has ever argued that a Justice is duty-bound to wake them up.” — 2017 article co-written by Barrett in the University of Pennsylvania Journal of Constitutional Law, arguing there often are pragmatic reasons not to attempt to overturn precedents even if a justice is convinced they were wrongly decided.
Trump vows quick court vote, Biden urges delay for Nov. 3
WASHINGTON (AP) — President Donald Trump said Sunday that confirmation of his Supreme Court nominee Amy Coney Barrett will go “quickly” but his Democratic rival, Joe Biden, implored the Republican-led Senate to hold off on voting on her nomination until after the Nov. 3 election to “let the people decide.”
Speaking at a press conference at the White House, the president spotlighted Barrett’s Roman Catholic religion, portraying her as a victim of attacks on her faith. But it’s her conservative approach to the law, particularly health care access that is drawing opposition from Democrats, not her private beliefs.
“It’s a disgrace,” Trump said. He vowed she will be confirmed “very quickly.”
Trump’s announcement of Barrett for the seat held by the late Justice Ruth Bader Ginsburg is launching a high-stakes, fast-track election season fight over confirmation of a conservative judge who is expected to shift the court rightward as it reviews health care, abortion access and other hot-button issues.
Biden on Sunday appealed directly to his former colleagues in the Senate to “take a step back from the brink.”
Biden urged Senate Republicans not to fan a controversy during an already tumultuous election year for a country reeling from the coronavirus crisis, a struggling economy and protests over racial injustice. If Trump wins the election, Biden said the president’s nominee should have a vote. But Biden said he should choose the next justice if he prevails on Nov. 3.
“This is time to de-escalate,” Biden said in Wilmington, Delaware.
No justice has ever been confirmed to the Supreme Court so close to a presidential election with early voting already underway in some states. Republicans believe the fight ahead will boost voter enthusiasm for Trump and Senate Republicans at serious risk of losing their majority. Democrats warn Barrett’s confirmation would almost certainly undo Americans’ health care protections as the high court takes up a case against the Affordable Care Act in the fall.
According to a national poll by The New York Times and Siena College that was released Sunday, a clear majority — 56% — of voters believes the winner of the Nov. 3 presidential election should fill Ginsburg’s seat, versus 41% who said Trump should as the current president. Biden has said he would nominate the first Black woman to the court, but he has not released the names of his potential choices.
The poll, which was conducted Sept. 22-24, had a margin of sampling error of 3.5 percentage points.
House Speaker Nancy Pelosi declined to say Sunday whether Barrett, a judge on the 7th U.S. Circuit Court of Appeals, is qualified to serve. But she argued that Trump was moving quickly to fill the vacancy before the court hears a challenge to the Affordable Care Act on Nov. 10.
“It’s not about this justice. It’s about any justice he would appoint right now,” Pelosi said on CNN’s “State of the Union.”
Pelosi, a practicing Catholic like Barrett, sidestepped any focus on Barrett’s conservative religious outlook, which California Sen. Dianne Feinstein, a Democrat, brought up in Barrett’s Senate hearings in 2017 when Trump nominated her for the appellate bench.
Pelosi said, “What I am concerned about is anyone that President Trump would have appointed was there to undo the Affordable Care Act.”
Senate Majority Leader Mitch McConnell has said the Senate will vote on Barrett’s nomination in the “weeks ahead.” Senate Judiciary Committee Chair Lindsey Graham said confirmation hearings will begin Oct. 12. A vote is expected Oct. 29.
“The Senate will confirm her next month,” declared Sen. Tom Cotton, R-Ark., on CNN.
With only two of the 53 Republican senators voicing opposition to a confirmation vote before the Nov. 3 election, Democrats appeared outnumbered — and without recourse to block the nomination.
Sen. Dick Durbin, D-Ill., the assistant leader, said Democrats can slow down the confirmation by a matter of hours or days, “but we can’t stop the outcome.”
The president said he had considered Barrett for an opening in 2018 before he ultimately settled on Brett Kavanaugh, but he explained that she “seemed like a natural fit” after Ginsburg’s death.
If confirmed, Barrett’s addition would make for the sharpest ideological swing on the Supreme Court since Clarence Thomas replaced Justice Thurgood Marshall nearly three decades ago.
Earlier, Trump acknowledged the confirmation ahead may not “go smoothly.”
Trump said, “Perhaps it will, perhaps it won’t,” in an interview shortly after the announcement with Fox News Channel that aired Sunday.
Other Republican senators say a post-election confirmation vote is also possible, as the GOP will continue to control the Senate in the lame-duck period between the election and inauguration.
In a memo to colleagues, Senate Democratic leader Chuck Schumer warned of the GOP’s “monomaniacal drive” to confirm the nominee ahead of the election.
Schumer told Senate Democrats, “Our number one job is to communicate exactly what is at stake for the American people if Republicans jam through this nominee. The elimination of the Affordable Care Act is at the top of the list.”
Barrett has been critical of Chief Justice John Roberts’ 2012 opinion upholding the health care law. Ginsburg was one of five votes that saved the law on two prior court challenges.
Asked about potential House maneuvers to stall the nomination, such as impeaching Attorney General William Barr, Pelosi quipped, “What is the use of talking about that?” She stressed that Americans should “vote, vote, vote” to put Democrats in charge of the White House, House and Senate.
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Weissert reported from Wilmington, Delaware. Associated Press writers Hope Yen in Washington and Bill Barrow in Atlanta contributed to this report.