Why Trump chose Amy Cony Barrett, handmaid of the Right
Amy Coney Barrett’s nomination offers Donald Trump all kinds of possibilities.
Donald Trump will make history this weekend by naming his third US Supreme Court nominee. Forget the sturm and drang of Trump’s daily tweets and relentless controversy; the greatest claim he has to achieving long-term change is that he has already appointed more than 200 federal court judges and is closing on his third Supreme Court justice.
This vacancy was caused by the death of Ruth Bader Ginsburg, the most left liberal of the court’s justices, who desperately tried to hang on until there was a Democratic president to appoint her replacement. She even told her granddaughter that her fondest wish was that she not be replaced until a new president was installed.
Trump has other ideas. The US constitution says the president nominates Supreme Court justices and that’s what he’ll do. Trump has nominated Amy Coney Barrett, a 48-year-old appeals court judge from Indiana. She is a conservative.
This is now the hottest issue of the presidential election. For Trump it offers a beautiful trifecta — it energises his base, changes the subject from pandemic management and reminds millions of evangelical Christians and modestly conservative Catholics why they voted for him in 2016.
Trump’s son-in-law, Jared Kushner, argues in Bob Woodward’s book Rage that Trump’s greatest asset is the way he manoeuvres and enrages his opponents into taking unreasonable and unpopular positions.
Liberal Democrats deeply dislike Barrett. She is a conservative Catholic with seven children. Five of them, one with special needs, are her biological children. Two were orphans she and her husband adopted from Haiti. She was a law clerk for the previous conservative intellectual giant, Antonin Scalia, who was also her mentor.
Unlike many Catholics in public life, Barrett upholds orthodox Christian belief. Thus in her own life she is a devoutly religious person. She has declared that no judge, including Catholic judges, should seek to impose their own morality on the law.
Rather, her legal philosophy is that of a moderate “originalist”. This means the court should be bound by the original meaning of the words in the constitution but it must also abide by all the precedents in interpretation that the court itself has previously made. Thus she has said that in her view abortion is always immoral, but that she would always be bound fully by the 1973 Roe v Wade ruling, which guarantees that abortion is legal in most circumstances.
If the Democrats demonise a woman such as Barrett they run the risk of swinging millions of voters back to Trump. White suburban voters, Catholics who backed Trump last time and even evangelicals who have been going cold on him because of his tumultuous ways would be more likely to return to Trump.
But if the Democrats do not vigorously oppose Barrett, their own base will be furious. Not only that, the culture wars are always most vicious when a political leader seems to embody the values of one side or another. Thus Bill Clinton and his baby-boomer exploitation of Monica Lewinsky enraged conservatives. But his emotional availability, support for feminist causes and deep relationship with African-Americans inspired progressives.
Sarah Palin, John McCain’s vice-presidential running mate in 2008, with her large family and lifelong churchgoing, appealed to a lot of Christian voters but looked to progressives like the embodiment of backwoods prejudice and social regressiveness.
One other thing. The nine Supreme Court justices are appointed for life. At 48, Barrett could serve for 40 years, or even 50 years, given the state of modern medicine.
A mid-west conservative Catholic woman could be extremely important in the mid-west, with several swing states he must win if he is to retain the presidency.
That a choice for a justice to serve on the Supreme Court can be viewed primarily this way shows the grotesque state to which American politics, and the court itself, has been reduced.
The complete politicisation of the court, in which both sides of US politics are equally complicit but which really flows almost inevitably from the nature of the US constitution, demonstrates how dangerous, if not plain crazy, it would be for Australia to contemplate a bill of rights or any other inclusion into the constitution that involved aspirational goals or abstract nouns.
The US bill of rights involves the first 10 amendments to the constitution. Because they contain many lofty words they can be interpreted by the Supreme Court however it likes. Therefore the court can knock out almost any law or government executive action with which it disagrees, even on social or ideological grounds, by claiming it contradicts the constitution.
For a contrast that demonstrates the superiority of the Australian system, consider the legalisation of gay marriage. In Australia there was a long and tortured debate that finally led to a Liberal National government holding a postal plebiscite. The debate throughout the plebiscite was full throated but generally civil and peaceful. No one could seriously doubt the plebiscite’s legitimacy. It had a high voter participation and expressed a pro-gay marriage view.
The federal parliament, accepting the political authority of the plebiscite, passed legislation to give effect to gay marriage. It was an entirely democratic and legitimate process and the change came where it should come in a democracy, in legislation.
In the US, gay marriage was delivered overwhelmingly by state and Supreme Court decisions. Unelected judges decided, not voters, not legislators. This dynamic, repeated a thousand times, is at the core of the crisis in legitimacy US politics is experiencing. It is one thing to lose at the ballot box. It is something else to be ruled by an unrepresentative, unelected and condescending elite. Anyone who cares about social policy, left or right, now campaigns furiously over who gets to be a judge.
Greg Craven, outgoing vice-chancellor of Australian Catholic University and a distinguished legal academic, tells Inquirer: “The fundamental problem is that the US Supreme Court is not really a court but a superior legislature that sits above congress. The reason it does this is because the bill of rights is expressed in vague terms which are interpreted by the court. This leads eventually to the end of an independent judiciary and an end to legislative governance.”
Bob Carr, former NSW premier and former Australian foreign minister, and one of the most astute students of US politics and culture, offers a similar view. He tells Inquirer: “It is an utterly political court, effectively a third legislative chamber. On issue after issue, the court makes policy. Hence an appointment is almost neuralgically political.
“The highest confirmation of its personality as a political chamber was in Bush v Gore in 2000. No one saw this as anything other than a partisan vote.”
Carr is referring to the 2000 presidential election that saw George W. Bush defeat Al Gore. Like Trump in 2016, Bush lost the popular vote but won the electoral college. Bush finally won Florida by 500 votes after repeated recounts and disputes. The Supreme Court finally ordered Florida to end its endless recounts and the vote was declared in Bush’s favour. Bush had led the Florida vote at every stage.
Craven further argues that the US constitution is an 18th-century document looking back to the 17th century. Despite elements of genius, it is a much more difficult and clunky constitution than Australia’s, which benefited from 19th-century liberalism (especially procedural liberalism).
Carr makes a more disturbing historical comparison. The US drifted towards civil war in the 1850s because it exhausted its capacity for compromise. The Dred Scott decision of the Supreme Court in 1857 confirmed that a slave who lived in a free state was still legally a slave and could not sue. This dismayed civic leaders in the north who feared that slavery might be extended into free territories. The south, for its part, was spooked when abolitionist John Brown led a raid on the federal armoury at Harpers Ferry in Virginia in 1859 to secure arms for a military revolt against slavery in the south.
It is hard to gauge exactly how severe US polarisation is today. In a powerful recent essay respected analyst Andrew Sullivan argued that some American cities had reached a Weimar moment, with violent groups from both left and right, often armed, willing to join battle in the streets. The political leadership of each side has been slow to condemn violence among their own supporters.
This Supreme Court battle could well inflame new hatreds and intensify old ones. Nothing has been so vicious in modern American politics as the confirmation hearings for Supreme Court justice Brett Kavanaugh. Like Barrett, Kavanaugh is a conservative Catholic. A completely uncorroborated allegation of sexual assault from decades ago was brought against him. It had never been mentioned before. His life entirely lacked any pattern of such abuse. Not a single detail even of surrounding circumstances could be corroborated. The accuser could nominate neither the place nor the month or even the year the alleged event took place. Witnesses she nominated to support background elements contradicted her at every point.
Yet Kavanaugh was subjected to the most extreme abuse and his family routinely threatened, as indeed, and equally outrageously, was the accuser. This made the politics of the Supreme Court the most vicious battleground of modern American culture wars.
Both sides play very dirty. Neither side is remotely consistent. Democrats argued in the Kavanaugh case that victims must always be believed. Yet when a woman made a sexual assault allegation against Joe Biden, which may or may not be true but the surrounding circumstances of which could at least be verified easily, Democrats naturally dismissed it without any serious inquiry.
The Republicans themselves lack consistency. In 2016 they argued it would be wrong for Barack Obama to nominate a Supreme Court justice in a presidential election year. In fact both sides are the same on this. When a president faces a Senate controlled by the opposition party he almost never gets an election year Supreme Court nomination passed. When his own party controls the Senate, he normally does.
The appointment of Barrett or some other conservative could have immediate consequences. It would cement a 6-3 conservative majority on the court. If the election is close, and given how shockingly ramshackle election procedures are in many US states, election disputes could well go to state courts and then the Supreme Court.
Of course, it is wrong to assume that conservative judges will favour Trump regardless of the facts. Trump’s first Supreme Court justice, Neil Gorsuch, has already ruled against the Trump administration in a contested matter.
A Barrett nomination offers Trump all kinds of possibilities. She is not only a conservative Catholic but a charismatic Catholic. Charismatics are a version of Pentecostals and Protestant Pentecostalism is the fastest growing brand of Christianity in the US and in many parts of the world.
Democracy requires a willingness of both sides to accept the legitimacy of the other, to accept occasional defeat. That is not evident in the US right now.
A group Barrett apparently belongs to, People of Praise, used to refer to female leaders as “handmaids”. This will surely produce throngs of demonstrators dressed as characters from Margaret Atwood’s The Handmaid’s Tale. But the word doesn’t come form People of Praise but from a text far more subversive. In the Christian gospels, Mary describes herself as “the handmaid of the Lord”.
Will Senate Democrats impeach the gospel?