And she checks a lot of boxes. Like his previous pick, Justice Neil M. Gorsuch, she's young (46), good on her feet, telegenic, unmistakably conservative and, with seven children, has the kind of family you want sitting behind you during tense confirmation hearings. Unlike Gorsuch, of course, she's a woman — a fact that could help mitigate the onslaught of questions about whether she would help overturn Roe v. Wade. Barrett is also from Indiana, which could apply pressure on its vulnerable Democratic senator, Joe Donnelly, to vote for her.
As far as reinventing the court for decades to come, she's everything Trump's base could want. But she also gives something Trump something less tangible: The opportunity to stoke a culture war.
Barrett has served on the U.S. Court of Appeals for the Seventh Circuit for just eight months, and it took a while to confirm her last year in what wound up being a mostly party-line vote. That may seem undesirable — Gorsuch, after all, was confirmed by a unanimous voice vote in 2006 — but looked at another way it makes a lot of sense. Barrett, after all, has been confirmed by almost the same Senate we have today. Donnelly was one of three Democrats who voted for her, along with every Republican. That means her record was thoroughly examined, and there shouldn't be many surprises.
And if you're Trump, you might actually consider how that played out as a positive. The main knock on Barrett, after all, was that she was supposedly too religious. As I detailed at the time:
Opponents have pointed to a couple of comments Barrett has made over the years, including telling Notre Dame graduates in 2006 that “your legal career is but a means to an end, and … that end is building the kingdom of God.” In 1998, Barrett said, “Judges cannot — nor should they try to — align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard.”
At one point, the Senate Judiciary Committee's ranking Democrat, Dianne Feinstein (D-Calif.) told the Catholic nominee that “the dogma lives loudly within you, and that's of concern.” Sen. Richard J. Durbin (D-Ill.) pressed her on her definition of the phrase “orthodox Catholic.” Sen. Mazie Hirono (D-Hawaii) had concerns, too.
The pushback earned cries of foul from those who argued Feinstein and others were applying a religious test, which the Constitution expressly prohibits. The president of the University of Notre Dame, where Barrett was a professor, sent Feinstein a letter rebuking her line of questioning. “I am one in whose heart 'dogma lives loudly,' as it has for centuries in the lives of many Americans, some of whom have given their lives in service to this nation,” the Rev. John I. Jenkins wrote. “Indeed, it lived loudly in the hearts of those who founded our nation as one where citizens could practice their faith freely and without apology.” The president of Princeton University also raised concerns. Feinstein later clarified again that she opposed religious tests.
Barrett was eventually confirmed, but were Trump to pick her again, it's not difficult to see liberal activists — who are spoiling for this fight — pushing their elected officials to press forward on this line of questioning. Indeed, it would be almost unavoidable, given the line of questioning is really all about Roe, and that's the central issue right now with this vacancy. Democrats will be poking and prodding for any hints about how the nominee would rule on cases involving Roe, and with Barrett that means talking about her past commentary on the intersection of religion and the law.
In a series of tweets Monday, Senate Minority Leader Charles E. Schumer (D-N.Y.) mentioned Barrett's stance on Roe v. Wade without getting into her religiosity.
The bottom line: Judge Barrett has given every indication that she will be an activist judge on the Court. If chosen as the nominee, she will be the deciding vote to overturn Roe v. Wade and to strike down pre-existing conditions protections in the ACA. #WhatsAtStake— Chuck Schumer (@SenSchumer) July 2, 2018
Barrett has a built-in defense, though: Her other past comments. Back in 2013, she said she believed Roe v. Wade would not be overturned. “I think it is very unlikely at this point that the court is going to overturn Roe, or Roe as curbed by [Planned Parenthood v.] Casey. The fundamental element, that the woman has a right to choose abortion, will probably stand,” she said. “The controversy right now is about funding; it’s a question of whether abortions will be publicly or privately funded.”
She wasn't technically saying she wouldn't overturn Roe herself, but she was suggesting it was settled law — a debate that will be at the heart of all those stare decisis questions we're sure to keep hearing. That at least gives her something to point to to suggest she's not some crusader bent on uprooting years of precedent.
Trump is going to get a fight over this pick, so he might as well choose the battle he wants. And this is exactly the kind of battle he generally relishes: One that invites his opponents to overreach.
The downside here is the possibility that Barrett's nomination might be defeated -- thereby leaving no time to confirm a new justice before the November election. But that seems pretty unlikely given she got even some Democratic votes just a few months ago.
This post has been updated.