September 26, 2020 8:34:10 am
Written by Peter Baker and Maggie Haberman
President Donald Trump has selected Judge Amy Coney Barrett, the favorite candidate of conservatives, to succeed Justice Ruth Bader Ginsburg and will try to force Senate confirmation before Election Day in a move that would significantly alter the ideological makeup of the Supreme Court for years.
Trump plans to announce Saturday that she is his choice, according to six people close to the process who asked not to be identified disclosing the decision in advance. As they often do, aides cautioned that Trump sometimes upends his own plans.
But he is not known to have interviewed any other candidates and came away from two days of meetings with Barrett this week impressed with a jurist he was told would be a female Antonin Scalia, referring to the justice she once clerked for. On Friday night, Barrett was photographed getting out of her car outside her home in South Bend, Indiana.
“I haven’t said it was her, but she is outstanding,” Trump told reporters who asked about Barrett’s imminent nomination at Joint Base Andrews outside Washington after CNN and other news outlets reported on his choice.
The president’s political advisers hope the selection will energize his conservative political base in the thick of an election campaign in which he has for months been trailing former Vice President Joe Biden, his Democratic challenger. But it could also rouse liberal voters afraid that her confirmation could spell the end of Roe v. Wade, the decision legalizing abortion, as well as other rulings popular with the political left and center.
The nomination will kick off an extraordinary scramble by Senate Republicans to confirm her for the court in the 38 days before the election on Nov. 3, a scenario unlike any in American history. While other justices have been approved in presidential election years, none has been voted on after July. Four years ago, Senate Republicans refused to even consider President Barack Obama’s nomination to replace Scalia with Judge Merrick B. Garland, announced 237 days before Election Day, on the grounds that it should be left to whoever was chosen as the next president.
In picking Barrett, a conservative and a hero to the anti-abortion movement, Trump could hardly have found a more polar opposite to Ginsburg, a pioneering champion of women’s rights and leader of the liberal wing of the court. The appointment would shift the center of gravity on the bench considerably to the right, giving conservatives six of the nine seats and potentially insulating them even against defections by Chief Justice John Roberts, who on a handful of occasions has sided with liberal justices.
Trump made clear this week that he wanted to rush his nominee through the Senate by Election Day to ensure that he would have a decisive fifth justice on his side in case any disputes from the vote reached the high court, as he expected to happen. The president has repeatedly made baseless claims that the Democrats are trying to steal the election and appears poised to challenge any result of the balloting that does not declare him the winner.
Sen. Mitch McConnell, R-Ky., the majority leader, has enough votes to push through Barrett’s nomination if he can make the tight time frame work. Republicans are looking at holding hearings before the Senate Judiciary Committee the week of Oct. 16 and a floor vote by late October.
Despite Trump’s penchant for drama and the intrigue that surrounded his first two picks for seats on the Supreme Court, the selection process since Ginsburg died last Friday has been fairly low-key and surprisingly predictable. The president has long signaled that he expected to put Barrett on the court and has been quoted telling confidants in 2018 that he was “saving her for Ginsburg.”
If confirmed, Barrett would become the 115th justice in the nation’s history and the fifth woman ever to serve on the Supreme Court. At 48, she would be the youngest member of the current court as well its sixth Catholic. And she would become Trump’s third appointee on the court, more than any other president has installed in a first term since Richard M. Nixon had four, joining Justices Neil Gorsuch and Brett Kavanaugh.
Barrett graduated from Notre Dame Law School and later joined the faculty. She clerked for Scalia and shares his constitutional views. She is described as a textualist who interprets the law based on its plain words rather than seeking to understand the legislative purpose and an originalist who applies the Constitution as it was understood by those who drafted and ratified it.
In a 2006 speech to Notre Dame graduates, she spoke of the law as a higher calling. “If you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love and serve God, you truly will be a different kind of lawyer,” she said.
But during her 2017 confirmation hearing, she affirmed that she would keep her personal views separate from her duties as a judge. “If you’re asking whether I take my faith seriously and I’m a faithful Catholic, I am,” she told senators. “Although I would stress that my personal church affiliation or my religious belief would not bear in the discharge of my duties as a judge.” She was confirmed on a 55-43 vote, largely along party lines.
As a law professor, Barrett was a member of Faculty for Life, an anti-abortion group, and wrote skeptically about precedent in Supreme Court rulings, which both sides in the abortion debate took to mean she would be open to revisiting Roe v. Wade.
“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 clearly in conflict with it,” she wrote in a Texas Law Review article in 2013.
She later criticized Roberts for his opinion preserving Obama’s Affordable Care Act, saying he went beyond the plausible meaning of the law. As an appellate judge, she joined an opinion arguing on behalf of an Indiana law banning abortions sought solely because of the sex or disability of a fetus, disagreeing with fellow judges who struck it down as unconstitutional.
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