Leslie Marshall: On Supreme Court, Amy Coney Barrett would threaten rights of millions of Americans

Conservative Judge Amy Coney Barrett, who President Trump nominated Saturday to fill the Supreme Court vacancy created by the death of liberal Justice Ruth Bader Ginsburg, could play a key role in changing American life for many years to come.

If confirmed by the Senate, Barrett would give conservatives a six-seat majority on the nine-member court, paving the way for major shifts in Supreme Court rulings on issues including abortion rights, gun rights, gay rights, separation of church and state, and the Affordable Care Act (ObamaCare).

Even if one of the six conservative justices sided with liberals on a particular case, as sometimes happens, conservatives could still prevail with five remaining votes in split decisions.

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Barrett could also cast a key vote on cases involving the upcoming presidential election if the Senate confirms her in time and President Trump or former Vice President Joe Biden file lawsuits challenging election results.

Barrett would become the 115th person to serve on the high court if confirmed, but only the fifth woman. Her appointment would keep three seats in the hands of women, but other than gender she has little in common with Ginsburg.

At 48 and with only three years of experience as a judge (on the 7th U.S. Circuit Court of Appeals), Barrett is young for a Supreme Court justice and would begin her time on the high court with less judicial experience than many justices. But her relative youth could enable her to serve on the court a long time.

Ginsburg, who died at 87, served for 27 years on the Supreme Court and previously served for 13 years as a judge on the U.S. Circuit Court of Appeals for the District of Columbia.

Ginsburg made a lifelong commitment to fight for the underdog. She was a champion for women’s rights, civil rights and rights of those in the LGBTQ community. Before she became a federal appeals court judge, she won major victories as an American Civil Liberties Union lawyer against discrimination on the basis of sex. She became a liberal icon in recent years, earning celebrity status with the nickname Notorious RBG.

Barrett comes from the opposite end of the ideological spectrum and is the favorite candidate of many conservative groups and individuals to join the high court. Trump made appointment of conservative judges a major campaign pledge in 2016 and has done so again this year, as a way of solidifying support among religious and socially  conservative voters who have other differences with him.

Replacing a white Jewish woman with a white Catholic woman on the Supreme Court does not bring more diversity to the court. Democratic presidential nominee Biden has pledged to nominate the first Black woman to the high court if he is elected and has a vacancy to fill. That would be a welcome development.

Many on the left are angered at the prospect of a staunch conservative replacing Ginsburg on the Supreme Court, particularly since Senate Republicans refused to even take a vote on Democratic President Barack Obama’s nomination of U.S. Circuit Court of Appeals Judge Merrick Garland to the high court in an election year in 2016 — when the election was still eight months away.

But with early voting already underway a little more than a month before Election Day on Nov. 3, Senate Republicans now suddenly have no problem with the idea of a rushed confirmation of a justice — as long as she is nominated by a president of their own party. This is rampant hypocrisy.

Other Supreme Court justices have been confirmed in election years, but never later than July in such a year. This didn’t stop Republican senators from falling into line in lockstep soon after Ginsburg’s death to say they would vote on Trump’s nominee this year — even before they knew who Trump would nominate.

A major concern of those on the left with Barrett is her position on abortion rights. A big fear is that she will vote to overturn Roe v. Wade, the landmark 1973 Supreme Court decision that says the Constitution protects the right of pregnant women to choose to get an abortion, thereby overturning states laws that made abortion illegal.

Before becoming a judge Barrett expressed her disagreement with the Roe v. Wade decision, but also said the decision was unlikely to be overturned.

In a 2013 speech on the matter, Barrett reportedly stated that life begins at conception. Additionally, she has said that abortion is “always immoral” and that the Roe v. Wade decision creates a framework for “abortion on demand.”

While we can’t be sure Barrett would vote to overturn Roe, such a move seems like a strong possibility.

There is also worry among those in the LGBTQ community based on some of Barrett’s alliances. She came under fire when she delivered a lecture that was financed by the Alliance Defending Freedom, an organization designated by the Southern Poverty Law Center as an “anti-LGBTQ hate group.” 

The Alliance Defending Freedom has submitted legal briefs against same-sex marriage in cases such as Obergefell v. Hodges and the United States v. Windsor.

Back in 2015, Barrett (who is Roman Catholic) signed a statement to Catholic bishops endorsing the church’s views on abortion, sexuality and marriage.

And Barrett co-authored a 1988 law review article that explored how Catholic judges should behave when the law conflicts with their religious beliefs. In it, she argued that Catholic judges should recuse themselves from cases that involve the death penalty.

This has raised concerns on issues — including abortion, LGBTQ rights, the death penalty and others —that has prompted some to question Barrett’s ability to separate her religious beliefs as a Roman Catholic from her decisions on the bench.

However, in her 2017 Senate confirmation hearing for her federal appeals court seat, Barrett said she wouldn’t let her personal or religious views influence her job as a judge.

“If you’re asking whether I take my faith seriously and I’m a faithful Catholic, I am,” Barrett said at the hearing. “Although I would stress that my personal church affiliation or my religious belief would not bear in the discharge of my duties as a judge.”

Liberals are also opposed to Barrett’s voting record on guns and immigration. Her rulings as a judge have been very pro-gun rights and she has made decisions unfavorable to undocumented immigrants nearly 100% of the time.

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Add to the above Barrett’s lack of judicial experience. To say her three-year judicial record is fairly thin is putting it mildly. She certainly didn’t rise to the top of the president’s shortlist because of her record. Some might say it was Democrats’ disdain toward her that moved Trump to nominate her.

The last Supreme Court justice nominated by Trump was Brett Kavanaugh. That nomination process got ugly before Kavanaugh was confirmed, and this one is sure to get ugly as well.

Senate Democrats will seek to block or at least delay Barrett’s confirmation, but right now it looks like Republicans have the votes to confirm her.

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This makes voting in the upcoming election all the more important for all of who support the rights that a Justice Barrett would likely restrict.

We need to vote to make Donald Trump a one-term president so he will be unable to appoint any additional justices after Barrett, and instead give Biden the opportunity for new appointments to the high court.

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