Commentary: If Amy Coney Barrett is nominated and confirmed, it will be a shame for the Supreme Court and the country

By Harry Litman, Los Angeles Times on

Published in Political News

Get ready for the profound changes an even more conservative Supreme Court will make in the law and in American life.

President Donald Trump's short list of candidates to fill Ruth Bader Ginsburg's seat - his third Supreme Court selection in four years - are all judges on the U.S. Court of Appeals: 7th Circuit Judge Amy Coney Barrett, 11th Circuit Judge Barbara Lagoa and 4th Circuit Judge Allison Jones Rushing. They also all have ties to the Federalist Society, the club of ultraconservatives that's been calling the shots for all of Trump's choices for the federal bench.

In this race, Barrett figures to win going away.

Lagoa's chief credentials are recommendations from prominent Florida Republicans such as Rick Scott and Matt Gaetz. She is Cuban American and a resident of Florida, an indispensable state for Trump if he is to be reelected. But I've read about 50 of the 400 opinions she has written in 15 years on the bench, mostly in the state intermediate courts. They are plodding and routine; she doesn't have Supreme Court chops.

Rushing is 38 years old, which would make her the youngest justice on the court in more than 200 years. That's an automatic source of controversy, as is her relatively bumpy ride to her current job, when she had to defend her membership in a conservative Christian organization that the Southern Poverty Law Center has identified as a hate group.

Like Barrett, Rushing clerked for a conservative luminary (she for Justice Clarence Thomas, Barrett for Justice Antonin Scalia), but her qualifications don't come close to Barrett's.


Barrett's decisions and law review articles reveal a topnotch legal mind. At age 48, she too would be the court's youngest member but she can't be dismissed as callow, especially given her full career as a tenured Notre Dame law professor. She checks all the ideological boxes for the Federalist Society cabal, and her strong personal commitment to fundamentalist Roman Catholicism thrills religious conservatives. Remember when Sen. Dianne Feinstein tried to question Barrett about how her faith might color her decisions during her confirmation for the court of appeals? "The dogma lives loudly within you," blurted Feinstein, providing fodder for the culture wars and burnishing Barrett as a right-wing religious martyr.

For these reasons, Barrett is the distinct favorite to get Trump's nod, and with just two Republicans willing to wait for the outcome of the election, the odds are that her nomination would be jammed through in short order.

So what might the country get from Justice Barrett? For starters, a monolithic majority of at least five rock-ribbed conservatives on the high court, and a near hammerlock on every important decision - on affirmative action, executive power, environmental protection and climate change, states' rights, LGBTQ rights, gun control and, of course, abortion rights, for many, many years to come.

Chief Justice John G. Roberts Jr., a moderate conservative who emerged last term as a champion of precedent, a swing vote and possibly the most powerful chief since John Marshall, will become almost an afterthought. And the reliably liberal justices? A permanent dissenting minority.


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