He is obsessed with his success as a businessman. “When I say success,” she told the students, “I don’t speak only of professional success. Success can be something as simple as the warm feeling one gets if you see a stranger that you sense to be lonely and smiling at that stranger and having that stranger return your smile; it can be bringing a child into the world and raising a child to be a good man or a good woman.”
For Donald Trump, conceding fear is a sign of weakness, to her a sign of strength. “I was the first one in my family to go to college,” she said. “… I was desperately homesick. I was scared. And I didn’t do very well that year. But I graduated, and I went on to be a full-time mother, and only after being a mother for 13 years did I go on to go to law school. My first job out of law school was as one of two women assistant U.S. attorneys in an office of 63 U.S. attorneys, and the first woman to do criminal work appearing only before male judges. Scared? Every day of my life.”
In other respects, she is just like her brother — tough and biting. When a defense lawyer for a Philadelphia mob boss, Joseph “Skinny Joey” Merlino, tried to challenge the character of a star prosecution witness in a 2003 racketeering appeal, she told him what he had was “bupkis.” As a trial judge in 1991, when she sentenced a “candy mogul” to 34 years in prison for beating and torching the competitors, she said “there was neither a way nor a reason to sugarcoat what the defendant is all about. He is, pure and simple, a thug.”
And like the Donald, she’s never been much for political correctness. “I stand second to none in condemning sexual harassment of women,” she said in a speech in 1992. “But what is happening is that every sexy joke of long ago, every flirtation, is being recalled by some women and revised and reevaluated as sexual harassment. Many of these accusations are, in anybody’s book, frivolous…. Frivolous accusations reduce, if not eliminate, not only communication between men and women but any kind of playfulness and banter. Where has the laughter gone?”
This is the woman who is on the U.S. Court of Appeals for the 3rd Circuit, is 78 years old and was characterized darkly by Ted Cruz as a “radical pro-abortion extremist,” the type of judge he says Donald Trump would bring to the Supreme Court if given the chance. (Trump jokingly spoke of putting his sister on the high court, followed by a quick disclaimer that, of course, he was just kidding.)
Cruz’s sole citation for labeling her an “extremist” was a opinion she wrote in 2000 for a three-judge panel striking down a New Jersey law banning “partial birth abortions” — she called the law so broad and vague that it could be read to ban almost any abortion at any stage.
“You know,” Cruz also said, “the one person he [Trump] has suggested that would make a good justice is his sister,” who, he explained pointedly, was “appointed by Bill Clinton.” Cruz added that “she is a hard-core pro-abortion liberal judge. And he said she would make a terrific justice.”
Cruz failed to point out, among other things, that Barry was first appointed to the bench by Ronald Reagan, that the outcome of the abortion ruling was dictated by a Supreme Court decision on a nearly identical law and that conservative Judge Samuel A. Alito Jr. concurred in Barry’s judgment, albeit not in in the legal reasoning stated in her opinion.
But antiabortion groups have been after her for years about the opinion. In 2004, Seton Hall University, for example, apologized for giving her its 12th annual Sandra Day O’Connor Medal of Honor after complaints from antiabortion activists. Ramesh Ponnuru singled her out in his 2013 book, “The Party of Death” for her “creative pro-choice epistemology.”
Trump, exhibiting his own ignorance of the workings of the judiciary, botched his defense of his sister. “She’s a brilliant judge,” he said during the Houston debate last month. Cruz has been “criticizing my sister for signing a certain bill. You know who else signed that bill? Justice Samuel Alito, a very conservative member of the Supreme Court, with my sister, signed that bill. So I think that maybe we should get a little bit of an apology from Ted. What do you think?”
But Cruz’s portrayal of Barry as an “extremist” and “liberal,” coupled with critiques by other conservative commentators, has also stirred the anger of a number of lawyers familiar with her work on the 3rd Circuit, most notably a lawyer, Matthew Stiegler, who also authors a blog, the CA3, which reports on the goings-on of that court.
“Judge Barry is moderate-conservative Republican centrist,” Stiegler said in an email. “She is widely respected and thoroughly mainstream,” he wrote on his blog, describing Cruz’s accusation as an “effort to smear” her. His characterization of Barry, who is now a senior judge, is supported by, among other things, a law review study that attempted to rank appeals court judges ideologically and that placed her in the middle of the spectrum.
Politically, that makes sense. Barry, who was the first woman assistant U.S. attorney in her office, was appointed to the U.S. District Court by President Reagan in 1983. She conceded later that her brother helped her get the appointment, according to the New York Times:
According to a person involved in the effort to appoint Ms. Barry, who discussed the clandestine strategy on the condition of anonymity, Mr. Trump had his lawyer, Roy M. Cohn, a politically connected former counsel to Senator Joseph R. McCarthy, lobby Edwin Meese III, then a senior White House aide, to put his sister on the bench. ”I’m no different than any other brother that loves his sister,” Mr. Trump said when asked about Mr. Cohn’s pressure on the Reagan administration. ”My sister got the appointment totally on her own merit.” Ms. Barry herself has given her brother some of the credit for her appointment. ”There’s no question Donald helped me get on the bench,” she was quoted as saying in Gwenda Blair’s ”The Trumps: Three Generations That Built an Empire.” ”I was good, but not that good.”
But the Times also noted that her name had been given to Republican Thomas Kean, then the governor of New Jersey, who had been asked by the Reagan administration for a recommendation.
“They wanted a woman and they asked me if I had a good woman, Mr. Kean said. He surveyed a sounding board of former New Jersey Supreme Court justices and legal counselors, and, he recalled, “every one of them recommended the same name, Maryanne Barry…. Only as she was about to be appointed did he find out that she was the sister of Mr. Trump, who, Mr. Kean said, “never made a call recommending his sister.”
Clinton appointed her to the appeals court in 1999, and she was confirmed by a voice vote in the Republican-controlled Senate with no dissenters.
While on the district court, she would catch the attention of Chief Justice William H. Rehnquist, who appointed her as chair of the Criminal Law Committee of the Judicial Conference of the United States, a position she held until 1996. That just happens to be the year when Rehnquist chose as a clerk a young Harvard Law School graduate named Ted Cruz.
It’s not known if their paths — Cruz’s and Barry’s — ever crossed in the ensuing two decades. But they have now.
The case in question was Planned Parenthood of Central New Jersey v. Farmer, a challenge to New Jersey’s “partial birth abortion” ban enacted in 1997. A U.S. district judge enjoined its enforcement, declaring, among other things, that in not defining “with any certainty” what it was banning — “partial birth abortion” is a political term, not a medical term — “those subject to the penalties of the Act cannot, with any certainty, determine what conduct is prohibited. As a result, they may steer far wider of the unlawful zone,” effectively resulting in a much broader ban and an “undue burden” on the right to abortion protected by the Supreme Court. The law also lacked an exception for the health of the woman seeking the abortion.
When the case got to the appeals court, Barry, Alito and Judge Leonard Garth heard the case. As they were preparing their opinion, the Supreme Court was taking up a similarly worded “partial birth abortion” law from Nebraska. And by the time the appeals court opinion was written, by Barry, the high court had weighed in, ruling in Stenberg v. Carhart, that the statute was unconstitutional, first, because it lacked any exception “for the preservation of the … health of the mother” and, second, because, by its vagueness, it “imposes an undue burden on a woman’s ability” to choose “abortion itself,” not just so-called “partial birth abortion.”
That left the appeals court panel little choice on how to rule. But it did not dictate a full-blown opinion. The panel could have simply affirmed the district court ruling in light of the Supreme Court’s decision, which was what Alito, in a concurring opinion, advocated.
But Barry, joined by Garth, disagreed. “The majority opinion which follows,” Barry wrote at the outset of their opinion, “was in final form before the Supreme Court of the United States heard argument” in Stenberg. “Because nothing in that opinion is at odds with this Court’s opinion; because, in many respects, that opinion confirms and supports this Court’s conclusions and, in other respects, goes both further than and not as far as, this opinion, and, because we see no reason for further delay, we issue this opinion without change.”
They then struck down New Jersey’s law in a ruling in which Barry took the New Jersey legislature to task, suggesting that the vagueness of the law was intentional and wondering whether state lawmakers chose “a path of deliberate ambiguity, coupled with public outrage based largely on misinformation, in an attempt to proscribe legitimate abortion practices.”
That prompted Ponnuru, writing in the National Review in August, to call Barry “a pro-abortion extremist judge” for “writing one of those heated judicial decisions in favor of giving constitutional protection to partial-birth abortion.” Cruz took it from there.
Stiegler, on his blog, fired back, calling Barry’s ruling “aggressively limited. It treats pro-life policy views with respect but decides the appeal based on logic and precedent, not policy. The opinion is competent, professional, and utterly mainstream. If this opinion makes Judge Barry a radical extremist, then so is 98 percent of the federal judiciary.”