Now, the 2020 effort to fill the Supreme Court seat once held by a jurist famed for her love of the opera takes on the air if not the arias of Giuseppe Verdi’s 1867 Don Carlo: a mix of death and politics.
Already, Washington is braced for dramatics worthy of La Scala, created by a set of unlikely stage circumstances worthy of the most imaginative librettos.
A year ago, nobody expected the leitmotif of this U.S. election year to be a once-obscure respiratory ailment with the ungainly name COVID-19. Seven months ago, few expected former vice-president Joe Biden, three-quarters of a century old and looking every year of it, to be the designated saviour of the Democrats in the Donald Trump era.
And only a week ago, nobody expected the election to turn on the destiny of Amy Coney Barrett.
Amy Coney Barrett? An Indiana jurist known to few Americans outside conservative legal circles until late last week, Justice Barrett, 48, was nominated Saturday by Mr. Trump to fill the Supreme Court vacancy created by the death just more than a week ago of Justice Ruth Bader Ginsburg. And if the scales of justice require an elegant balance, then Mr. Trump’s selection fits comfortably opposite Justice Ginsburg on the weighing pan of U.S. jurisprudence.
Though both are women, Justice Barrett – like the late Justice Antonin Scalia, Justice Ginsburg’s opera companion, and the conservative jurist for whom Justice Barrett clerked – is a judicial originalist, the opposite of Justice Ginsburg’s profile as a judicial activist.
Justice Barrett was educated at tiny Rhodes College and the University of Notre Dame, and is a product of Memphis and the Midwest. Justice Ginsburg was educated at Cornell, Harvard and Columbia, the product of the Ivy League and the Eastern establishment. Justice Barrett has qualms about what she derided in a Notre Dame speech as abortion-on-demand and has an expansive view of the Second Amendment that is the basis of widespread gun ownership. Justice Ginsburg was a fervent supporter of abortion rights and didn’t believe the Second Amendment should be interpreted to permit widespread ownership of guns.
It is those differences – the positioning of Justice Barrett on the opposite side of virtually all the vital judicial issues of 21st-century America – that makes her “the nominee that social conservatives have been waiting and fighting for,” as John Yoo, deputy assistant attorney-general in the George W. Bush administration and law professor at the University of California, Berkeley, put it.
And that is what so energizes conservatives in the United States and so horrifies liberals.
It is, moreover, those differences that add definition, passion and perhaps direction to an election that, like virtually no other in U.S. history, could turn on the future of the Supreme Court.
Already, Mr. Biden has tied the Supreme Court confirmation battle to the survival in the high court of the Obamacare health-insurance law, emphasizing the urgency that the issue possesses in the time of the coronavirus. And already, both sides in the abortion battle are stoking passions among their adherents, declaring that abortion rights, established in 1973, now could be in the balance.
To be sure, throughout the past 90 years, the composition of the Supreme Court has been an important issue: in the New Deal years, when the high court ruled on the Great Depression remedies of Franklin Delano Roosevelt; in the Dwight Eisenhower years, when the first important racial-integration rulings were handed down; in the Richard Nixon years, when abortion was legalized and the President’s prerogatives were curtailed.
Polls show Mr. Biden holding as much as a 17-point advantage over the President among women, raising the prospect of a record gender gap. Choosing a jurist such as Thomas Hardiman – a moderate that Mr. Trump has considered in the past and whose ideological profile would be less onerous to conservative Democrats in the Senate – would only make it more difficult for Mr. Trump to narrow that gap.
If the very prospect of replacing Justice Ginsburg is a flashpoint in U.S. politics, the selection of Justice Barrett is a lightning strike – a perfect reflection of the divisions in U.S. politics today and of the tensions that define the struggle for the White House. In every way that this nomination mobilizes Democrats infuriated at the President’s selection and Senate Majority Leader Mitch McConnell’s determination to hold a confirmation vote for Justice Barrett, it also galvanizes conservatives.
She is, in the characterization of conservative Hoover Institution scholar Peter Robinson, “committed to the originalist interpretation of the Constitution, with an extensive and brilliant written record, the correct gender, and has demonstrated the character, resolve and sheer cussed stubbornness to withstand the calumnies of the confirmation hearings.”
Justice Barrett also “helps Trump in the culture wars, especially on behalf of white Christians, and she’s based in the Midwest, where he needs to do well,” said Daniel Urman, a constitutional scholar at Boston’s Northeastern University. Indeed, Democratic Senator Dianne Feinstein of California helped ignite sympathy for Justice Barrett and for devout Catholics when she told Justice Barrett during her 2017 nomination hearings for the 7th Circuit Court of Appeals that “the dogma lives loudly within you.”
Ms. Feinstein concluded that “dogma lives loudly” phrase with the words “and that’s a concern.” But that phrase – swiftly seized upon by Catholic and conservative groups, appearing on T-shirts and coffee mugs – is an enormous advantage on the American right.
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