In Preemptive Defense of Future Justice Barrett

Justice Ruth Bader Ginsburg’s passing last week at 87 is a sobering reminder that death is the great equalizer in human affairs. For if even a legal giant like Justice Ginsburg—the “Notorious RBG” as she affectionately was known to her many fans—succumbed to it, then so must we all. We should take this opportunity to pray for the repose of her soul and reflect on how fragile our supposed grip on life really is.

Even so, we cannot let something tragic, even something tragic and mysterious like death, distract us from the important, pressing business facing our nation. President Trump has nominated Ginsburg’s replacement and, as many expected, it is Amy Coney Barrett, a judge on the U.S. Court of Appeals for the Seventh Circuit, professor at Notre Dame Law School, and Roman Catholic wife and mother of seven (her youngest is special needs and two are adopted from Haiti). Full disclosure: Notre Dame Law is my alma mater, and I took two seminars with her.

In a very tangible sense, she is the anti-RBG, especially on life issues (evidenced most strongly by how she and her husband have built their family). Of course, this will drive the Left and Senate Democrats insane. They likely will try to attack her along four lines, none of which will include, thankfully, a salacious-but-obviously-false, 11th-hour “gang rape” charge of the sort that was perpetrated, shamelessly and shamefully, against then-Judge Brett Kavanaugh (because that sort of thing just doesn’t work on women, let alone an even-keeled mother of seven like Barrett).

The attacks will come on abortion, the Second Amendment, healthcare, and her personal life—though not necessarily in that order (and, of course, the Democrats may shock us all and outdo even their hysterical, tyrannical behavior in l’affaire Kavanaugh; stay tuned).

Abortion

On abortion, Barrett, admittedly, is an easy target if you’re committed to preserving the status quo or expanding abortion access. She is an openly faithful Catholic mother of seven; before knowing anything else about her judicial philosophy, opinions she’s written in abortion-related cases, or her scholarly writings, that fact screams loudly and clearly, “Roe is on the chopping block.”

But even leaving that aside, Roe demands to be overturned because it is, in the words of Judge William H. Pryor of the 11th U.S. Circuit Court of Appeals, the “worst abomination in the history of constitutional law”—easily on par with Dred Scott and Plessy. Not even liberals like Ginsburg would defend the sweeping decision on its own terms, and constitutional scholar John Hart Ely (who personally supported abortion) once said of Roe that it “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

In her time as a judge, Barrett twice has dealt with the abortion question. In 2018, the 7th Circuit ordered a rehearing en banc (i.e., a full-court rehearing of a case originally heard by a three-judge panel) in a challenge to an Indiana law requiring fetal remains either to be buried or cremated after an abortion. But the 7th Circuit vacated that order and reinstated the original opinion blocking the state from enforcing the law.

Barrett joined a dissent written by her colleague, Judge Frank H. Easterbrook. Easterbrook addressed a separate provision of the law that also had been struck down but was not at issue at that time. That provision would bar abortions based on the fetus’s race, sex, or disability (e.g., Down syndrome). Easterbrook characterized it as an anti-eugenics provision and suggested that there is nothing in the Constitution that would deny a state the ability to pass such anti-eugenics protections.

The Supreme Court later reversed the 7th Circuit’s opinion on the fetal-remains provision but did not weigh in on the part of the decision that struck down the ban on abortions based on race, sex, or disability, leaving Indiana unable to enforce that provision. Justice Clarence Thomas, with his characteristic flair, memorably blasted abortion as rooted in an ugly eugenic history.

Later, in 2019, Barrett indicated she wanted the full 7th Circuit to rehear a challenge to an Indiana law requiring young women to notify their parents before obtaining an abortion after a three-judge panel had ruled it was unconstitutional. Indiana asked the Supreme Court to weigh in, and the justices sent the case back to the lower courts this summer for another look. Also in 2019, Barrett joined an opinion that upheld a Chicago ordinance barring anti-abortion “sidewalk counselors” from approaching women entering an abortion clinic, something she had to do given Supreme Court precedent on the issue.

It seems reasonably clear that Judge Barrett is skeptical of the so-called right to an abortion, but as a lower-court judge, she is bound by the regime of mass slaughter that was enacted by the raw will of the Supreme Court in 1973. The Democrats will attack her for this, but it will be out of panic that their core sacrament, abortion, will soon be, well, aborted—right into the ash heap of history where it belongs.

Second Amendment

In the 2019 case, Kanter v. Barr, the 7th Circuit upheld the mail-fraud conviction of the owner of an orthopedic footwear company and as a result, his right to keep and bear arms was abrogated. He contended that laws prohibiting people convicted of felonies from having guns violate a person’s Second Amendment right to bear arms. The majority rejected that argument, explaining that the government had shown that such laws are related to the government’s important goal of keeping guns away from people convicted of serious crimes.

Judge Barrett dissented (start at p. 27), arguing that at the Founding, legislatures took away the gun rights of people who were believed to be dangerous, not of just anyone who had committed any felony. So, for Barrett, the laws at the heart of Kanter are too broad because they ban nonviolent persons from possessing a firearm without any evidence that they pose a risk. Barrett stressed that the Second Amendment “confers an individual right, intimately connected with the natural right of self-defense and not limited to civic participation.”

It would be incredible to watch Democrats try to paint Judge Barrett as an extremist on guns given the way they—for the past three months—have excused, downplayed, ignored, and even tacitly encouraged violent mobs’ looting businesses, destroying property, and even murdering supporters of the president—all with revolting impunity.

On second thought, the campaign ads would write themselves. Please do it, Kamala!

Healthcare

A common Democratic talking point about this nomination—aside from their irritating bellyaching about how unfair it is that President Trump, exercising his duly conferred constitutional powers, will be nominating someone that the Republican-controlled Senate wants to confirm in an election year (which has happened frequently throughout our nation’s history)—is that Republicans are trying to kill Obamacare through the courts and that RBG’s replacement will be integral to that devious plot.

On this, they will likely have some ammunition. Of Obamacare, then-Professor Barrett wrote, “In NFIB v. Sibelius [2012] Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” NFIB, recall, was the case in which Roberts miraculously found Obamacare’s individual mandate to be both a tax for some purposes and also not a tax for other purposes (actually, it’s a penalty now!) in order to save the law.

That decision was completely unexpected, and it has been criticized widely. Judge Barrett is not wrong to have observed in a law review article that Roberts tortured a statutory provision to make it say something it didn’t (but also mysteriously did, too) in order to save a landmark law out of a misguided desire to preserve the Supreme Court’s “legitimacy”—but she should be prepared to defend herself nonetheless.

The Republicans will have her back, and she is right on the law regardless.

Personal Life

The fourth and final line of attack will be her personal life. In an era when the politics of personal destruction are the norm, this is an entirely expected, if deeply unwelcome and ugly, avenue for the Democrats to take in opposing Judge Barrett.

Dianne Feinstein (D-Calif.) stated, while questioning Barrett during her confirmation hearing for the 7th Circuit back in 2017, that “the dogma lives loudly within you.” Other senators, including vice presidential hopeful Kamala Harris (D-Calif.), openly have questioned whether a Catholic nominee could be a judge—apparently completely ignorant of Article VI, clause 3 of the Constitution, which states in no uncertain terms that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Good old-fashioned anti-Catholicism is back en vogue!

She will be slammed for her affiliation with the “People of Praise,” a lay organization of Catholics. To that, I say: yawn. It didn’t stick then, and it’s not going to stick now; different strokes for different folks; etc. The absolute best they’ll be able to do is caricature her as a fanatical religious zealot who wants to impose her twisted “Handmaid’s Tale” vision of the world on everyone else. But they were going to do that, anyway.

Normal, well-adjusted people will see a fair-minded, civil, compassionate, intelligent woman who respects our Constitution and the rule of law it secures—including the twin rights to life and self-defense, which sit at the foundation of our society, not to mention the right of religious freedom: the right—the duty, really—to order your life in relation to God as you see fit, leaving others the freedom to do likewise.

Democrats will be desperate to throw everything they can at the Senate’s walls to see what sticks in a mad rush to stop Judge Barrett from ascending to the highest court in the land. Happily, none of it will work, nor should it.

About Deion A. Kathawa

Deion A. Kathawa holds a J.D. from Notre Dame Law School and a B.A. from the University of Michigan–Ann Arbor. He is a proud Midwesterner and a Mt. Vernon Fellow of the Center for American Greatness.

Photo: Bloomberg Creative Photos/Getty Images

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