Could the Supreme Court nomination of Amy Coney Barrett backfire on Republicans?

President Donald Trump announced Judge Amy Coney Barrett as his nominee to the Supreme Court at the White House on Saturday. AP Photo by Alex Brandon

President Donald Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court has deepened the U.S. partisan divide in a way that may influence the election in November, says Dan Urman, who teaches a course at Northeastern on Constitutional law and the modern U.S. Supreme Court. 

“The pick shows that Trump is governing as the president of the red states,” says Urman, in reference to Barrett’s high standing with conservatives. If she is confirmed by the U.S. Senate, Barrett is expected to support the weakening or abolishment of legalized abortion, the Affordable Care Act, and other causes that are valued by progressives.

Dan Urman teaches a course at Northeastern on Constitutional law and the modern U.S. Supreme Court. Photo courtesy of Dan Urman

Conservative justices would hold a 6-3 majority if Barrett goes on to succeed Justice Ruth Bader Ginsburg, a leader of progressive causes who died Sept. 18 at age 87 due to complications from metastatic cancer of the pancreas. Trump, who has already indicated that he may challenge the results of his race with Democratic candidate Joe Biden, has said that he would like Barrett to be seated on the court before the Nov. 3 presidential election.

The decision to rush through Barrett’s selection is being denounced by Democrats as hypocritical, based on the refusal by Republicans four years ago to consider the Supreme Court nomination of Judge Merrick B. Garland, which was announced 237 days before the 2016 presidential election. At that time, Senate Republicans insisted that a new justice should be chosen by the winner of that election.

On Saturday, with voting having begun 38 days before an election in which Trump is the underdog, the president was celebrating in advance the confirmation of his third Supreme Court justice.

Democrats have acknowledged there is little they can do to prevent the confirmation of Barrett, who was introduced Saturday by Trump at a White House Rose Garden ceremony to announce her nomination. He referred to Barrett as “one of our nation’s most brilliant legal minds.”

“I urge all members of the other side of the aisle to provide Judge Barrett with the respectful and dignified hearing that she deserves,” said Trump, who used the moment to lay down his priorities. “The stakes for our country are incredibly high: Rulings that the Supreme Court will issue in the coming years will decide the survival of our Second Amendment, our religious liberty, public safety, and so much more.”

Barrett, 48, would be the youngest justice on the current court, enabling her to influence U.S. law for decades. She was joined at the Rose Garden Saturday by her husband, a former prosecutor now in private practice, and their seven children, including two who were adopted from Haiti. 

Barrett’s youngest child has Down Syndrome. Urman says conservatives will view Barrett’s decision to keep the child as evidence of her strong convictions against abortion.

Though Barrett has been a judge for only three years, her inexperience on the bench is not unusual. Of the 114 justices who have served on the Supreme Court, 34 had no prior experience as judges—including Elena Kagan, who is widely considered to be the best writer among the current justices, according to Urman.

Barrett was raised in suburban New Orleans and graduated summa cum laude from Notre Dame Law School, where she would teach for 15 years. As a clerk for conservative Justice Antonin Scalia—whose death led to Trump’s selection of Justice Neil Gorsuch in 2017 after Garland had been passed over—Barrett was known for “destroying” flimsy legal arguments, the Chicago Tribune has reported.

During her three years as a federal judge on the appeals court in Chicago, she has written close to 100 opinions which have helped articulate her conservative point of view.

As an “originalist,” Barrett seeks to apply the original public meaning of the text of the U.S. Constitution, much as her mentor, Scalia, had done. 

In 2017, Barrett was confirmed for the appeals court by a 55-43 vote after her religious views had become an issue during her hearings. Barrett belongs to People of Praise, a Christian faith group that “teaches that husbands should assume authority as the head of the household,” according to Newsweek

“If you’re asking whether I take my Catholic faith seriously, I do,” Barrett testified. “Though I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.”

While campaigning for the 2016 election, Trump promised to nominate pro-life judges. Barrett’s views on the abortion and healthcare laws contributed to her backing by the Federalist Society, which has heavily influenced Trump’s three choices for the Supreme Court.

“The vetting for potential Republican appointees to the courts is extremely thorough,” Urman says. “No one is getting endorsed by the Federalist Society without certainty about their views on abortion and many other ‘culture war’ issues that matter. In 2005, the uncertainty about Harriett Miers’s views on abortion doomed her nomination.”

After Miers withdrew from the confirmation process, President George W. Bush nominated Samuel Alito, who has consistently voted to uphold abortion restrictions in his time on the Supreme Court.

Appointments to the Supreme Court have been a priority for Republicans ever since the reign of Earl Warren, who was accused of “liberal overreach” while he was chief justice from 1953 to 1969. Since then, Republican presidents have filled all but four of the vacant seats. (The four that were named by Democratic presidents were Ginsburg and current Justices Stephen Breyer, Sonia Sotomayor, and Kagan.) But Urman believes that may be changing.

A recent CNN poll found that 59 percent of Americans—including 97 percent of Democrats and 59 percent of independents—believe the winner of the upcoming election should choose Ginsburg’s successor. If Trump’s nomination of Barrett is viewed as an unfair power grab, says Urman, the move may hurt Republicans in the November election. If Democrats are able to win control of the White House as well as the Senate, they may choose to add seats to the Supreme Court in order to compensate for the Republican snubbing of Garland.

“I think everything is on the table,” Urman says.

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