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Indiana’s Barrett a top contender in brewing Supreme Court battle

June 28, 2018

With another seat opening on the U.S. Supreme Court, Notre Dame Law School professor and 7th Circuit Court of Appeals Judge Amy Coney Barrett is being viewed as a leading contender on President Donald Trump’s list of potential nominees.

Barrett, who was confirmed to the Chicago-based appellate court less than eight months ago, is on Trump’s list of 25 Supreme Court-worthy nominees, but she is now seen as being on a much shorter list.

As Brian Paul, partner at Faegre Baker Daniels in Indianapolis explained, Barrett has the qualities the president wants in a nominee–smart, young and tough. “Barrett has every one of those qualities,” said Paul, who practices in the appellate courts and is a member of the 7th Circuit Bar Association.

Barrett, born in 1972 in Louisiana, is a graduate of Notre Dame Law School and clerked for the late Justice Antonin Scalia. She also endured a bruising confirmation process, with Democrats hammering her legal views, before she was confirmed by a 55-43 vote. Sen. Joe Donnelly D-Indiana, along with his Democratic colleagues, Sens. Tim Kaine of Virginia and Joe Manchin of West Virginia, voted for her.

Also, because the Senate majority is pushing to get Kennedy’s vacancy filled before the mid-term elections, Barrett is a strong choice since because has just been through the confirmation process for the 7th Circuit. The paperwork and background checks have been done and, as Paul noted, if there is anything in her background that could derail her nomination, it would have come out by now.

Moreover, she is a woman, and Trump might believe nominating a female will help him shore up the women’s vote in the upcoming elections.

“The stars are aligning for her,” Paul said of Barrett. Another female 7th Circuit judge, Diane S. Sykes of Wisconsin, is also on Trump's list of potential nominees.

If Barrett is nominated, her experience surviving a difficult confirmation battle will have prepared her for what will likely be an ugly brawl over the Supreme Court vacancy.

“Barrett’s really in play because Democrats beat up on her (during her 7th Circuit confirmation), and I thought she did as good a job as anyone in that situation,” said Carl Tobias, professor at the University of Richmond School of Law.

All sides quickly mobilized Wednesday after Kennedy — a singular voice on the court and a swing vote whose positions have decided issues on abortion, affirmative action, gay rights, guns, campaign finance and voting rights — sent shockwaves through Washington by announcing his retirement plans.

Trump said he would start the effort to replace Kennedy “immediately” and would pick from a list of 25 names that he updated last year. Senate Majority Leader Mitch McConnell declared that the Senate “will vote to confirm Justice Kennedy’s successor this fall.”

With Kennedy’s departure, Republicans have a longed-for opportunity to tip the balance of the court. It already has four justices picked by Democratic presidents and four picked by Republicans, so Trump's pick could shift the ideological balance toward conservatives for years to come.

Republicans also have a chance to make judicial nominees a top campaign issue, which could help motivate conservatives and evangelicals to vote in November. The playbook worked in 2016, when Republicans rallied around McConnell’s successful block of then-President Barack Obama’s nominee to the court, Merrick Garland.

If Republicans unite behind Trump’s selection, there’s little that Democrats can do to stop it. Republicans changed the Senate rules last year so that Supreme Court nominees cannot be filibustered, meaning only 51 votes will be required to confirm.

But while Republicans are aiming for speedy action, Democrats quickly argued that any decision should be put on hold until after midterm elections, citing McConnell’s 2016 moves. Senate Minority Leader Chuck Schumer, D-N.Y., said it would be the “height of hypocrisy” to vote sooner.

Immediately after Kennedy announced he was stepping down, outside groups on the left and the right began lining up and preparing to fight.

Paul sees the sharp reaction as a result of the legislative branch ceding much of its power to the judicial branch. Statehouses and Congress have passed statutes in the past 40 years that have many gray areas that require the courts to interpret. So the judiciary has been deciding issues that were previously the domain of the elected representatives and, as a consequence, the Supreme Court in particular has become very politicized.

Since the 1960s, the Supreme Court has recognized itself as having purview over issues which, Paul said, the Constitution has not explicitly granted to the judiciary. Social issues such as abortion and same-sex marriage, he continued, are being decided by the justices rather than being debated and decided by elected officials who are accountable to voters.

Certainly, a flashpoint in the nomination process will be abortion rights. This puts a spotlight on key female Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska. Both have supported abortion access.

The abortion issue could also prove difficult for Sen. Dean Heller of Nevada, the most endangered Senate Republican running for re-election this fall, whose views have shifted against abortion rights.

Schumer said the Senate should reject “on a bipartisan basis any justice who would overturn Roe v. Wade or undermine key health care protections.”

With Republicans only holding 51 seats in the upper chamber, the nominee will have to be someone who can unite the majority, Tobias said. The rush to get a quick confirmation could be derailed if the nominee fails to get support from all the Republican Senators.   

In addition to Barrett, other possible nominees being eyed include Thomas Hardiman, who serves alongside Trump’s sister on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, and Raymond Kethledge, a federal appeals court judge who clerked for Kennedy.

Also of interest are Amul Thapar, a federal appeals court judge from Kentucky who is close to McConnell; and Brett Kavanaugh, a former clerk for Kennedy who serves on the federal appeals court in Washington, D.C.

Among Trump’s counselors is Leonard Leo, who is taking a leave of absence as executive vice president of the Federalist Society to serve as an outside adviser to the process. Leo said Wednesday that it was important to first focus on Kennedy’s legacy and demonstrate appreciation. From there, he said, the “White House will begin to winnow the president’s list to a manageable short list.”

“The president has been very clear over and over what his standards are,” Leo said.

Senators were bracing for the tough days ahead.

Republican Sen. Ben Sasse of Nebraska, a member of the Judiciary Committee, bluntly talked of the “blood sport” likely to be triggered by the nomination fight.

“Americans ought to aim higher,” he said.

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