John Yoo: Amy Coney Barrett and Dems – Left will try to turn one of her greatest strengths into her weakness

President Donald Trump has kept his campaign promise and nominated an outstanding conservative woman for the Supreme Court vacancy created by the passing of Justice Ruth Bader Ginsburg last week.

In any normal time, the Senate would quickly confirm, and the president would appoint, Amy Coney Barrett to the Supreme Court. But this is no normal time.

Barrett should win the support of anyone who wants judges of intelligence, experience, and character. For the last three years, she has served as a judge on one of the most important federal appeals courts, the Seventh Circuit covering Illinois, Indiana, and Wisconsin.

She joined the faculty of the Notre Dame Law School 15 years before, where she became an expert on the Supreme Court, constitutional interpretation, and the role of the federal courts.

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Her position at Notre Dame Law was a homecoming (though not the kind that the Fighting Irish are famous for), as she had graduated first in her class from its law school before clerking for Justice Antonin Scalia, whom she calls “my former boss and mentor,” and Larry Silberman, one of the outstanding lower court judges in Washington, D.C.

Any normal confirmation hearing would focus on Barrett’s writings, both her judicial opinions and her academic articles. They would find someone committed to originalism.  Originalists, as she put it earlier this year, “insist that judges must adhere to the original public meaning of the Constitution’s text.”

Not for her is the claim that judges should interpret constitutional provisions based on what we think the words today mean, or that judges should divine the broader “purposes” behind the Constitution when deciding cases before them.

Democrats will try to turn one of Barrett’s greatest strengths into her weakness – her religious faith. 

Originalists generally believe in a narrow judicial role in deciding many of the issues roiling the nation and would instead return them to the democratic political process, rather than seizing them for the Supreme Court.

Barrett did not conjure originalism out of thin air, and her appointment should come as no surprise. As I describe in my new book, "Defender-in-Chief: Donald Trump’s Fight for Presidential Power," Donald Trump won the support of conservatives during the 2016 Republican primaries by promising to appoint judicial originalists in the mold of Scalia and Clarence Thomas, its most well-known practitioners.

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In my book, I show how Trump has honored that commitment. He fought to confirm Justices Neil Gorsuch and Brett Kavanaugh, both prominent conservatives who share a similar commitment to enforcing the original understanding of the Constitution held by those who ratified it.

Trump has also seeded the federal bench with dozens of young, intelligent, upstanding conservatives – Barrett is one of a bumper crop of judicial candidates of whom a Ronald Reagan or George Bush could only dream.

Rather than a smooth confirmation of the kind that had greeted Ruth Bader Ginsburg herself in 1993 or Stephen Breyer in 1994, Senate Democrats will likely go to the mat to try to torpedo Barrett.

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As they lack a majority in the Senate, Democrats may well try to repeat their Kavanaugh playbook and raise personal reasons to vote against Barrett. They cannot invent believable claims of sexual harassment, or worse, about a devout Catholic mother of seven who adopted two children from Haiti.

So, instead, Democrats will try to turn one of Barrett’s greatest strengths into her weakness – her religious faith.

We sadly saw an early example of this in Barrett’s confirmation hearings for the Seventh Circuit, when Senator Dianne Feinstein, D-Calif., bizarrely declared that "the dogma lives loudly within you, and that is a concern," – by which she apparently meant to say that Barrett would allow her Catholic believes interfere with her performance of her judicial duties.

Apparently what was good enough for a President John F. Kennedy or even a Justice Anthony M. Kennedy – that we do not presume that a Catholic has a higher loyalty to the Pope than to the Constitution – is not good enough for a female Catholic judge from Indiana.

Democrats will attack Barrett for her Catholic beliefs because they wish to imply that she would supply a fifth vote to overturn Roe v. Wade.

Democrats waged a scorched earth campaign against Kavanaugh because they believed he too, would supply the necessary majority to return abortion to the political process.

Kavanaugh did not, in fact, live out the Democrats' nightmare scenario because Chief Justice John Roberts this summer shied away from overturning Supreme Court cases blocking state abortion restrictions. But with the addition of another originalist in Barrett, conservatives will have a large enough majority on the Court and would no longer need Roberts’ vote to give states greater leeway in regulating abortions.

Americans should find this line of attack repulsive. It assumes that Catholics share the same universal belief in abortion and that they are incapable of following their duty first and their religion second.

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It ignores that Catholic judges, like Catholic politicians, have found themselves on opposite sides of many issues, such as abortion and gay marriage, on which the Church has taken a position. Imagine if Senate Democrats held a similar assumption about the way that Protestants, Jews or Muslims would decide constitutional questions.

In fact, Barrett has written in a nuanced way about this very question. In an early law review article, “Catholic Judges in Capital Cases,” she addressed the conflict for a Catholic judge who believes that the death penalty is immoral but who, as an originalist would, also believes the Constitution allows states to impose it in first-degree murder cases.

“Judges cannot --nor should they try to align our legal system with the Church's moral teaching whenever the two diverge,” she concluded.

As a judge, Barrett has sat on death penalty cases since – she has placed her duty to interpret the Constitution based on its original understanding (which clearly permits the death penalty) first.

To suggest that Barrett cannot approach legal questions with an open mind due to her Catholic belief verges on the imposition of a religious test for public office, which the Constitution itself forbids.

That Barrett’s opponents would stoop to using her religion as a line of attack shows how far confirmation politics have descended.  There may be no natural stopping point now, so long as the Supreme Court continues to expand its authority over more and more controversial issues that used to rest in the purview of the political process.

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The Court’s importance may explain, but does not justify, the unprincipled political attacks on nominees starting with Robert Bork in 1987, extending through Clarence Thomas in 1991, and on to Kavanaugh in 2018.

If the Senate confirms Barrett, it will support a Justice who seeks to withdraw the Court from the center of social controversies, reduce the importance of judicial confirmations, and perhaps take the first steps toward healing itself.

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