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President Trump has confirmed that tonight, at 9 pm EST, he will announce his choice of candidate for the Supreme Court following the departure of Justice Anthony Kennedy. And what, do you reckon, are the chances of his critics here being mollified if it turns out his candidate is in fact a woman, and a working parent?
It would bring the Supreme Court almost into gender balance, with four women and five men. I mean, when President Obama added a further woman to make it a measly four women out of 113 Supreme Court judges who have served to date, that was seen as proof of his essential soundness. But if President Trump does so, well, that’s another matter.
Amy Coney Barrett is widely considered to be one of two women on the Trump shortlist for the job, and may be Mr T’s actual nominee.
The unnerving thing about her is that she looks a bit like Nicole Kidman – a bit offputting for the job, perhaps – and is only 46, so she’d be there for the long haul. She’s a graduate of neither Harvard nor Yale law schools, the equivalent of a Supreme Court judge here not coming from Oxbridge. She’s a graduate of Notre Dame Law School, where she subsequently taught, she was promoted to the Seventh Circuit Court last year, a very senior appointment, and was clerk to Justice Antonin Scalia. She’s smart, well regarded and respected in terms of her academic output. About the only thing against her is that she’s only served eight months on the bench.
And did I mention her children? She’s got seven, two of them adopted from abroad.
None of that matters, of course. Because the only thing anyone is interested in is that she’s a Catholic – what’s more, a committed Catholic – and therefore likely to be open to the possibility of overturning Roe v Wade, the case on which US abortion law hangs. The issue hung over her hearing for her appointment to the Seventh Circuit Court last year and became explicit when the veteran Democrat senator, Dianne Feinstein, said witheringly: “you have a long history of believing your religious beliefs should prevail…when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to the big issues that large numbers of people have fought for years in this country.”
Senator Richard J Durbin also pressed her on what she meant by describing herself as an “orthodox Catholic.” For a nation that expressly forbids the imposition of religious tests on candidates for public office, that looked very much like it. And that revelatory phrase from Feinstein played badly, not just among conservatives, but mildly appalled some senior Democrats.
While the abortion question is the crux of the case against Barrett, occasionally Democrats diversify a bit by questioning her opposition to the Affordable Healthcare Act. There’s also quite a lot in the papers about her membership of a Catholic devotional organisation, People of Praise, though it’s a spiritual and devotional organisation rather than a political one. Probably the worst that can be said about it is that its style of worship is offputtingly evangelical.
Barrett is not an idiot though. She declined to be drawn on the Roe v Wade question during her hearing last year, but previously she has suggested that Catholics could be absolved from upholding the death penalty, on the grounds of conscience (that would be a fun issue for her to take up with the President). And on the crucial issue of precedent, or Stare decisis (“to stand by the [court’s] decisions]– as in Roe v Wade – she has intimated in an article for the Texas Law Journal, 2013, that precedent may not be binding. “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it.”
That has obviously been true in the past when it comes to rulings relating to racial segregation, say.
If the President does nominate her today, all hell will break loose. She may be a woman, but funnily enough, feminists will be lining up to try to make sure she doesn’t get appointed. Funny that, no?
