A quality nominee, on merit

In an impressive speech at the White House on Saturday, judge Amy Coney Barrett emphasised her view that “a judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold”. Her judicial philosophy, developed under her mentor, the late Supreme Court Justice Antonin Scalia, for whom she clerked more than 20 years ago, should reassure Americans about her suitability to serve on the same bench.

One of Judge Barrett’s colleagues from that era, Harvard Law professor Noah Feldman, an avowed liberal who disagrees with her judicial philosophy, recalled she stood out among a group of 30 clerks, “all of whom had graduated at the top of their law school classes’’. Measured by pure legal acumen, she “was one of the two strongest lawyers … when assigned to work on an extremely complex, difficult case … I would first go to Barrett to explain it to me’’.

Judge Barrett is an eminent jurist in the tradition of Justice Scalia, who, despite being a conservative, had a close friendship with Justice Ruth Bader Ginsburg, the Supreme Court’s leading liberal who died last week. On Saturday, Judge Barrett paid a generous tribute to Justice Ginsburg, who began her career at a time when women were not welcome in the legal profession and “smashed’’ glass ceilings.

But with political passions running high 36 days from the US election, it is unlikely Donald Trump’s nomination will be treated with the “respect and dignity” he wants. An almighty political battle is likely even before Senate confirmation hearings begin. Ahead in the polls by 7 per cent, Joe Biden’s Democrats are determined to fight tooth and nail to derail her nomination and a 6-3 conservative majority on the bench. That could have an immediate impact if the election result is disputed and ends up in the court. It creates a dilemma for Mr Biden. If his opposition is too strident, it will energise Mr Trump’s base like little else.

As Gerard Baker wrote in The Wall Street Journal, millions of voters swallowed their distaste for Mr Trump in 2016 because they believed their voices had too often been ignored. And decisions by the liberal-controlled Supreme Court were central to that alienation. The lawmaking of activist judges in areas once decided by voters deepened the impression that unaccountable elites make the rules a nation of “deplorables’’ must live by.

Much has been made of the fact Judge Barrett, 48, is a Catholic mother of seven. Nominated by Mr Trump to the Court of Appeals in 2017, she was confirmed after contentious hearings. Asked if her religion would intrude on her legal decisions, she replied: “It’s never appropriate for a judge to impose the judge’s personal convictions, whether they derive from faith or anywhere else, on the law.” With Republicans controlling the Senate, there is little doubt Judge Barrett will be approved and the Supreme Court will get its strongest conservative majority since the Nixon administration in the 1970s, which could endure for decades, with a profound impact. As former Republican presidential hopeful Mitt Romney — no friend of Mr Trump’s — said in supporting the nomination, “my liberal friends have over many decades gotten very used to the idea of a liberal court, but that’s not written in the stars. It is appropriate for a nation that is centre-right to have a court which reflects centre-right points of view”.