WASHINGTON – Seizing an opportunity to consolidate conservative control of the Supreme Court, President Donald Trump on Saturday nominated federal appeals court Judge Amy Coney Barrett of Indiana to replace the late Associate Justice Ruth Bader Ginsburg.
The nomination, overwhelmingly popular among conservatives, comes as Trump trails Democratic nominee Joe Biden in most polls and gives him a chance to change the national conversation from the coronavirus pandemic, racial justice and a troubled economy.
In a 20-minute Rose Garden ceremony, Trump called Barrett “one of our nation’s most brilliant and gifted legal minds” and virtually dared Democrats to try delaying or blocking her confirmation.
“Her qualifications are unsurpassed, and her record is beyond reproach. This should be a straightforward and prompt confirmation,” the president said, adding with a wink, “I’m sure it will be extremely non-controversial.”
Barrett paid homage to Ginsburg despite their ideological differences and acknowledged the challenges that face her, both during the confirmation battle and thereafter.
“I have no illusions that the road ahead of me will be easy, either for the short term or the long haul,” she said. But she added: “I assure you that I will meet the challenge with both humility and courage.”
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With Election Day 38 days away, Senate Republicans hope to move quickly to confirm Barrett, 48, to a lifetime appointment on the high court. Only two of the 53 Republicans, Sens. Lisa Murkowski of Alaska and Susan Collins of Maine, oppose voting before the election.
Democrats and liberal interest groups critical of her positions on abortion, health care and other issues appear powerless to block it. Meanwhile, the White House has already set up meetings for Barrett on Capitol Hill, the traditional first step toward Senate confirmation.
If she wins confirmation, Barrett, a devout Catholic, would be the fifth woman to serve on the Supreme Court and Trump’s third nominee, joining Associate Justices Neil Gorsuch and Brett Kavanaugh. The past three presidents, Barack Obama, George W. Bush and Bill Clinton, each appointed only two justices during their eight years in the White House.
Barrett is in many ways the ideological opposite of Ginsburg, the leader of the court’s liberal wing who died eight days ago after a lengthy battle with cancer. Barrett was a small child when Ginsburg, as a lawyer, was winning a string of Supreme Court cases on behalf of women’s rights. Ginsburg went on to serve 40 years as a judge, including 27 on the Supreme Court.
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Still, Barrett took time Saturday to laud the justice she would replace as “a woman of enormous talent and consequence.”
“She not only broke glass ceilings, she smashed them,” Barrett said. “For that, she has won the admiration of women all over the country and indeed all over the world.”
Trump and Senate Republican leaders want to confirm Barrett before the election – in part because of the contested nature of the election itself. Earlier this week, Trump said he wanted nine justices on the court to decide any legal cases that arise from the voting.
“We may end up in a dispute for a long time because that’s the way they want it,” Trump said Friday in reference to Democrats promoting mail-in voting. “But we’re going to end up winning.”
Sen. Mike Braun, R-Ind., said Barrett will offer a “little more conservative backbone in the court” and joked that her nomination was “one of the worst-kept secrets.” In fact, she was the only person Trump interviewed for the job.
The nomination of Barrett – who serves on the U.S. Court of Appeals for the 7th Circuit, based in Chicago – will be a major campaign issue, coming just three days before the president’s first debate with Democratic challenger Joe Biden.
Trump clearly hopes to use it to his advantage. At his Saturday night rally near Harrisburg, Pa., a giant red-and-white sign was hoisted with the phrase, “FILL THAT SEAT!”
“This nomination is an attack on our very democracy,” said Ilyse Hogue, president of NARAL Pro-Choice America.
Republicans and conservative allies applauded Barrett as a strict constructionist who will interpret the Constitution and not make law from the bench.
“Judge Barrett has impressed the brightest judicial and legal minds with her profound understanding of the law,” tweeted Sen. John Cornyn, R-Texas.
Confirming Barrett by Election Day will require an extraordinarily fast schedule against an historic deadline. It customarily takes about 10 weeks to move from a Supreme Court nomination to Senate confirmation. And no justice has been confirmed later than July of an election year.
In a Washington Post-ABC poll earlier this week, 57 percent of Americans said the decision on replacing Ginsburg should await the winner of the presidential election. Only 38 percent said Trump and the current Senate should move ahead.
But Senate Majority Leader Mitch McConnell, R-Ky., and Sen. Lindsey Graham, R-S.C., chairman of the Senate Judiciary Committee, plan to hold hearings on Barrett in October, with a final Senate vote by early November, right ahead of the election.
Democrats have decried that plan as hypocritical, pointing to what happened in the 2016 election year. Then, the Republican Senate blocked President Barack Obama’s nominee to the high court after Associate Justice Antonin Scalia died in February, some nine months before Election Day.
If Trump and the Republicans push Barrett through, Democrats have vowed retaliation should they win control of the Senate in November. Their options range from ending filibuster rights – making it nearly impossible for a Republican minority to block legislation – to increasing the number of seats on the Supreme Court to restore ideological balance. They also could move to make Washington, D.C., and Puerto Rico states, giving them opportunities to add Democrats to the Senate.
A former Scalia law clerk, Barrett checks most if not all conservative legal boxes. She is an originalist and a textualist, meaning she looks to the words of the Constitution and congressional statutes as written. At 48, she could serve on the court for four decades or more.
If confirmed by Election Day, she could be on the high court in time to hear several major cases this fall, including a third major challenge to the Affordable Care Act.
Trump considered nominating Barrett to the Supreme Court in 2018 after the retirement of Associate Justice Anthony Kennedy. The president instead went with Kavanaugh, who had a much longer tenure as an appeals court judge. Aides said then that the president was saving Barrett for a future high court opening.
Barrett’s confirmation would give Republican appointees a 6-3 advantage on the nation’s highest court, perhaps locking in conservative dominance for decades on issues such as abortion, civil and voting rights, health care, police powers, free speech and government regulations.
In the Supreme Court term that ended in July, Republican appointees held a 5-4 advantage, though Trump and others questioned just how conservative the court was under the leadership of Chief Justice John Roberts.
Trump has criticized Roberts for occasionally siding with liberal justices, including Ginsburg, to forge 5-4 majorities. Roberts has veered from conservative orthodoxy on abortion, immigration, LGBTQ rights and most notably on President Barack Obama’s health care law, the Affordable Care Act.
On the campaign trail, Trump vowed to nominate more conservative justices, and Barrett’s appointment is a fulfillment of that pledge. So, too, are the 53 federal appeals court judges he has named, flipping three circuit courts from having a majority of judges named by Democratic presidents to a majority of judges named by Republican presidents.
Mike Davis, former counsel to Republicans on the Senate Judiciary Committee who now lobbies for Trump’s judicial nominees, heralded Barrett’s nomination.
“With the appointment of a Justice Barrett as his third Supreme Court pick, President Trump will transform the 5-4 John Roberts court to the 6-3 Clarence Thomas court,” Davis said.
Born in New Orleans and now a resident of Indiana, Barrett has been a Notre Dame law professor since 2002 and a federal appeals court judge since 2017. She and her husband, Jesse, have seven children, including two adopted from Haiti and one who has Down syndrome.
While she was the overwhelming favorite for the nomination, Trump and aides said he considered at least four other candidates: federal appeals court judges Barbara Lagoa of Florida, Allison Jones Rushing of North Carolina and Joan Larsen of Michigan, and Kate Comerford Todd, a deputy White House counsel.
Contributing: Michael Collins