Mitch McConnell has the votes to confirm Amy Coney Barrett, a former Antonin Scalia clerk who has pledged to continue her mentor’s work on the Supreme Court. It is unfair, but indisputable, that Democrats will lose this seat.
I doubt that Barrett drinks a lot of beer or is prone to nasty sexual behaviors. The only thing that could stop her confirmation is a new and damaging revelation about the charismatic, evangelical Catholic group, People of Praise, to which she and her family belong. This is unlikely, and not just because she was vetted less than three years ago for a federal seat she barely warmed before her bottom was called to SCOTUS. She is also the ideal female conservative: highly educated, accomplished, a mother seven times over, and a devoted wife. As Sarah Jones of New York Magazine notes, Barrett is the female Supreme Court Justice many movement conservatives have been waiting for since Ronald Reagan chose Sandra Day O’Connor over Phyllis Schlafly in 1981.
I am not saying that I won’t tune in to the confirmation hearings: I will. I enjoy watching legal minds at work. I am also quite curious about whether Barrett will take this opportunity to discuss how her faith coexists with a commitment to upholding secular law.
It is, of course, unlikely that Barrett will be candid about anything controversial or interesting. That never happens anymore. I have only twice heard anyone nominated for SCOTUS cop to having beliefs that went beyond a tireless devotion to the Constitution, even though they all do. In 1993, Ruth Bader Ginsburg affirmed that “If you impose restraints that impede [a woman’s] choice, you are disadvantaging her because of her sex.” The other honest nominee was Robert Bork, in 1987 — and you know how that ended. We even created a new verb to commemorate the moment.
But defeating Robert Bork, a monumental achievement by one Joseph Biden, also left the Democratic base with the illusion that anyone that threatens Roe can be borked.
Is Barrett a catastrophe for reproductive rights? Yes. But remember that most of the restrictions on abortion and birth control occur at the level of the states. All kinds of civil rights—reproductive, voting, welfare, disability, educational, sexual and gender identity—can be restored by doing what Democrats need to do anyway: win elections, then win more elections, and more elections. It would even be good for politics to stop expecting questions of human rights to be decided, and protected, by the courts.
Certainly, Barrett’s Catholic ethics and originalism, as well as her skepticism about precedent, make the roadmap for dismantling liberal jurisprudence clearer, at least in the immediate future. But sadly, that does not constitute a disqualification for the Court that any Republican respects, and they are running the show for the next five weeks.
Furthermore, there is no evidence that Barrett is underqualified for the job, by temperament or by training. At Bloomberg, liberal Noah Feldman, who knows her, says that Barrett is “is highly qualified to serve on the Supreme Court.” When Trump first nominated her for a federal appeals court seat in 2017, the Notre Dame law faculty circulated a strong letter of support about their colleague. Now, Barrett’s colleagues say, the high focus on her views about abortion is an unfair lens through which to view her judicial philosophy as a whole. Critics are “are reducing Amy to an ideological category instead of taking her for who she is: an intelligent, thoughtful, open-minded person,” law professor Paolo Carozza says. Rich Yelderman, another Notre Dame colleague, attests that Barrett is “mind-blowingly intelligent, and she’s also one of the most humble people you’re going to meet.”
But there is another question some conservatives are asking: will Barrett be a reliable conservative vote?
Their concern? Once again, it is her religion and her potential devotion to a papacy that has moved left. In September 2019, conservative John Zmirak, who writes regularly about Catholicism, expressed doubts in Human Events, a bellwether for hard-right intellectuals, that “Barrett fails to draw the bright line separating her legal judgment and practice from her faith, as Justices Alito and Thomas do.” Conservatives have watched with dismay as the Vatican has taken more liberal stances. Pope Francis, Zmirak wrote, “has used his position to promote a wide array of leftist political and theological stances that conflict with his predecessors’ teachings.” These issues include declaring the death penalty incompatible with reverence for human life, declaring life imprisonment to be “evil,” and denouncing restrictions on immigration and refugee resettlement.
Consequently, Zmirak fears that Barrett would follow the Vatican’s lead, and labels her “scary.” Conservative lawyer and pundit Ann Coulter is unhappy too. “NO! NO! NO!” she tweeted on September 19. “Barrett says she’ll recuse herself in any case where the Pope has a specific view, like the death penalty. No.”
In that sense, the Barrett nomination amplifies anger among conservative populists who have watched Trump break the promises—The Wall, ending the Iraq-Afghanistan war—that got them on board in the first place.
But what could make up for these disillusioned supporters, the Trump campaign may hope, is if liberals go into a frenzy about Barrett’s faith, allowing them to portray the Democrats as anti-Catholic bigots. Initial results have been promising: People of Praise has already been hyperbolically described in the liberal press as a “cult,” “secretive,” and “authoritarian.”
But it isn’t clear that this is true. Yes, the group believes that women should defer to male authority and that homosexuality is sinful, but Orthodox Jews, conservative Muslims, and vast numbers of Protestants do as well. Michael J. O’Loughlin, at the Jesuit publication America, disputes some of the charges against People of Praise, noting that they arise from disgruntled former members of the group and are unproven.
Mark my words: focusing on Barrett’s faith and portraying her as a religious fanatic (when I suspect she is nothing of the kind) is a huge mistake. My one hope is that my party, from the Senate Leadership down to the lowliest College Democrat on the smallest college campus, get it that Barrett is not being nominated for her sex, or her academic and jurisprudential credentials. And while being a card-carrying member of the Federalist Society is a baseline for Republicans nowadays, as Jeffrey Toobin writes, that isn’t her primary qualification either.
I think this because there are plenty of people who fit the above description, who are not controversial in any weird way, and Trump interviewed precisely none of them. This leads me to conclude that, principally, Trump nominated Barrett to troll the libs and create a new kind of chaos prior to the election.
This purpose became apparent when White House aides strategically leaked the nomination a day before the announcement. Before you could say, “Hail, Mary!” GOP Twitter was primed and ready to blast Democrats and liberal media outlets who had already vomited out stories that were quickly spun as anti-Catholic.
Amy Coney Barrett is now a Trump campaign asset, whether she likes it or not, and must be treated like one. More important than trying to win this battle, perhaps, is the Democrats deciding how to lose it, and how they keep the Democratic faithful zeroed in on electing Joe Biden.
Staying focused on Joe Biden, whose lead in the polls is steadily growing, is something we can control.
Trump—who is currently losing the election—doesn’t care about Barrett’s religion, her jurisprudence, or any of the social issues that she will help to decide. Her utility to him is ugly and straightforward: to disrupt, create chaos, and drive the Democratic leadership and liberal pundits into hysterical diatribes against people of faith. The campaign wants to use this nomination to pry Catholic votes away from Biden and propel Trump to a win on November 3. It is as simple and as cynical as that.
I, for one, am not playing. And I hope, when the hearings begin, Senate Democrats do not either. Let this one go: keep your eyes on the prize.
The White House.
Claire Potter is co-executive editor of Public Seminar, Professor of History at The New School for Social Research, and author of Political Junkies: From Talk Radio to Twitter, How Alternative Media Hooked us on Politics and Broke Our Democracy (Basic Books, 2020). You can tweet with her @TenuredRadical.