Pursuit of justice
Donald Trump narrows his Supreme Court search to five women

The president says he’ll name his choice on Saturday

United States

SPEAKING ON FOX NEWS on September 21st, Lindsey Graham, a Republican senator from South Carolina, conveyed the state of the battle to fill the Supreme Court seat of the late Ruth Bader Ginsburg: “We’ve got the votes to confirm Justice Ginsburg’s replacement before the election,” he said. “That’s what’s coming.”

Mr Graham had promised in 2016 to await election results should a Supreme Court vacancy open in 2020, solemnly telling Democratic colleagues, “I want you to use my words against me.” He has now abandoned that pledge. Thanks to his about-face and similar changes of heart from Republican colleagues, Mr Graham’s prediction of a quick vote to confirm a third Trump appointee seems highly likely to come true. Republicans hold a 53-47 majority in the Senate. Two Republican senators (Susan Collins of Maine and Lisa Murkowski of Alaska) have announced they will oppose filling Justice Ginsburg’s seat before the election, but other putative waverers are willing to proceed. On September 22nd Mitt Romney of Utah, who in February voted to convict Mr Trump on one article of impeachment, said he would support a vote on a nominee.

All this talk of votes may seem premature as there is, as yet, no nominee. Mr Trump is intent on changing that soon. On September 21st he said he had narrowed his search to five women from the 40-odd candidates on his recently bolstered roster of potential picks. The next day he said he would announce his choice on September 26th.

The front-runner—the only candidate Mr Trump has met this week—remains Amy Coney Barrett (pictured), aged 48, a judge he installed on the Seventh Circuit Court of Appeals in 2017. In contrast to the president’s first two picks, Neil Gorsuch and Brett Kavanaugh, Ms Barrett does not hail from an Ivy League university. She attended Rhodes College and got her law degree at Notre Dame, where she taught for 15 years before donning her robe at the appeals court based in Chicago. Harvard or Yale may not grace her resume, but Ms Barrett has earned a spate of academic accolades, from Phi Beta Kappa in college (an honorary society for high achieving students) to summa cum laude honours and a top law-review editorship at Notre Dame. She had two prestigious judicial clerkships, including one under Justice Antonin Scalia. She enjoys the support of an ideologically diverse array of former students and faculty at Notre Dame. She is telegenic—an apparent priority for the president—and speaks with upbeat confidence.

Ms Barrett also has a long paper trail, notably her writing on the balance between upholding the law and personal faith. In a typical confirmation hearing—where senators solidify their votes only after listening to the nominee—that might be a liability. But with most openly lining up in the “yea” or “nay” column before questions begin (or the nominee is even chosen), those writings will probably represent only minor speedbumps.

There is much to plumb. In 1998 Ms Barrett co-wrote “Catholic Judges in Capital Cases”, a look into “whether judges are sometimes legally disqualified from hearing cases that their consciences would let them decide”. The question is profound. Ms Barrett is a devout Catholic with ties to the People of Praise, a charismatic community teaching that husbands have authority over their wives. Several Democratic senators worried during her 2017 hearing that this religiosity may not mix well with service on the bench; Dianne Feinstein of California observed that “the dogma lives loudly within you”. That comment flopped, as Ms Feinstein seemed to be criticising the nominee’s deeply held beliefs.

Ms Barrett’s 1998 article contains a rejoinder, that it is “inconsistent” with the constitution’s bar on a “religious test” for office “to suggest that Catholics, simply by virtue of being Catholics, are disqualified from serving as judges”. Her conclusion was a bit simplistic. “[R]esponsible Catholics must consider” the dissonance between law and their faith “seriously”, she wrote, and should not “align” the legal system with “the Church’s moral teaching”. In their private lives, however, they should “conform their own behaviour to the Church’s standard”. If that simply means Catholic judges should not have abortions, carry out executions or practise euthanasia themselves, the article isn’t proposing much. Notably, Ms Barrett and her co-author do not defend Justice William Brennan’s more emphatic approach to the quandary in his 1957 hearing: that “there isn’t any obligation of our faith superior” to “the oath I took to support the constitution and laws of the United States”.

The status of abortion rights is a central concern for both American liberals and conservatives. Ms Barrett will frighten the former and delight the latter with her position that abortion is “always immoral”. She said repeatedly in her 2017 hearing that as a circuit-court judge she would be bound to “faithfully apply all Supreme Court precedent”—including Roe v Wade, the 1973 decision recognising a constitutional right to abortion. Were she to ascend to Justice Ginsburg’s old seat, however, Ms Barrett would be empowered to reconsider Roe and other long-standing precedents. Josh Hawley, a strongly pro-life Republican senator from Missouri, is satisfied that Ms Barrett will vote to overturn Roe once she has the opportunity—a requirement, he insists, if a nominee is to earn his support. Ms Barrett “clearly meets that threshold that I’ve talked about”, Mr Hawley said on September 21st. That may mobilise Mr Trump’s evangelical supporters but scare off moderate voters—particularly women.

Other candidates on Mr Trump’s short list have been less emphatic that precedents should be abandoned when they are wrong and seem less clearly intent on dismantling the right to abortion. Barbara Lagoa, a long-time judge on Florida’s state courts before Mr Trump chose her to take a chair on the Eleventh Circuit Court of Appeals in Atlanta, was a bit more emphatic about the stability of Roe in her hearings in 2019, calling it “settled law”. But Mr Trump may find tactical benefits from tapping Ms Lagoa. As a Cuban-American, her nomination may entice swing Hispanic voters to support him in November. And she could help Mr Trump win Florida’s all-important 29 electoral votes. On voting rights, Ms Lagoa seems in line with Mr Trump’s penchant for limiting the franchise. This month she voted with the majority to uphold Florida’s law requiring ex-felons to pay all outstanding fines before earning the right to vote—undermining a state constitutional amendment extending the franchise to most felons who have completed their sentences.

Chances seem to drop for the other three women on Mr Trump’s mind. Joan Larsen, another former Scalia clerk who shared a confirmation hearing with Ms Barrett, serves on the Sixth Circuit Court of Appeals. Allison Jones Rushing, the youngest of the five at 38, has served on the Fourth Circuit Court of Appeals since 2019 and clerked for Justice Gorsuch when he was a judge on the Tenth Circuit. Kate Todd, deputy White House counsel, clerked for Justice Clarence Thomas. All five women have ties to the Federalist Society, a conservative legal organisation that has found great success grooming young lawyers for the bench.

The speed with which Mr Trump is proceeding is a sign he would like to get a nominee confirmed in time for the election. The president supplied a reason for that on September 21st. “We should act quickly”, he said, “because we’re going to have probably election things involved here, because of the fake ballots they’ll be sending out, which is terrible”. Commanding a third of the Supreme Court with his appointments would benefit Mr Trump’s plan B if he does not score a clear victory on November 3rd: litigate his way to a second term.

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