Judge Amy Coney Barrett
Matt Cashore | Notre Dame | Reuters
President Donald Trump is expected to nominate Judge Amy Coney Barrett to fill the vacancy left by the death of Justice Ruth Bader Ginsburg on the Supreme Court, sources familiar with the matter tell NBC News.
Trump is expected to make the announcement at an event planned for 5 p.m. ET Saturday.
Barrett is a 48-year-old federal appeals court judge favored by social conservatives and the religious right. Her confirmation to replace Ginsburg, a feminist icon who sat on the bench for 27 years, would solidify a 6-3 majority for Republican appointees on the bench for the foreseeable future.
Trump’s announcement will come just 38 days before voters will decide whether he will hold the White House for a second term, and is bound to have profound reverberations on all three branches of government.
Barrett’s expected selection will come just a week after Ginsburg died from complications due to cancer found on her pancreas. She will be buried in Arlington National Cemetery next week.
Ginsburg, who had in the past publicly sparred with the president, said in a statement issued while she was dying that it was her “most fervent wish” that she not be replaced until after Election Day.
That comment, and the precedent Republicans set in 2016 when they opposed former President Barack Obama’s nominee to the bench, prompted a battle between Democrats and Republicans over whether a vote on a new nominee would take place before Nov. 3.
Barrett has long been anticipated as a potential nominee to the Supreme Court, and it came as a surprise to some when Trump passed over her in favor of Justice Brett Kavanaugh to fill the seat vacated by Anthony Kennedy. Trump reportedly said at the time that he was saving Barrett for Ginsburg.
Trump has repeatedly pressed for a vote ahead of Election Day, and Senate Majority Leader Mitch McConnell, R-Ky., has said there is more than enough time to do so, despite his 2016 posture that prohibited a vote on Obama’s nominee, Merrick Garland.
Democratic nominee Joe Biden and his allies in Congress have blasted the president’s decision to nominate a justice. During a speech in Philadelphia, Biden said of Ginsburg that “we should heed her final call to us, not as a personal service to her, but as a service to the country, our country, at a crossroads.”
But it appears Republicans will have the votes they need. Two moderate Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, came out in opposition to holding a vote, but failed to attract other defectors. McConnell needs just 50 of the Senate’s 53 Republicans to stay in line, given Vice President Mike Pence’s ability to cast a tie breaking vote.
Any selection Trump could have made was likely to be contentious, but Barrett could prove especially so.
Barrett, whom Trump appointed to the 7th U.S. Circuit Court of Appeals, has already started to spur a cultural battle over the place of religion on the high court, and the future of abortion rights in the United States.
Democrats are worried that Barrett’s deeply held Catholic faith will bias her in cases that could cause the court to revisit Roe v. Wade, the landmark 1973 case that legalized abortion.
They have pointed to Barrett’s comments to students suggesting that their legal careers were a means to “building the kingdom of God,” and a 1998 paper in which Barrett explored whether orthodox Catholic judges should recuse themselves from cases concerning the death penalty. In the paper, Barrett referred to aborted fetuses as “unborn victims.”
Barrett wrote in the article, co-authored with a professor while in law school, that the Catholic church’s opposition to the death penalty provided a reason for federal judges to recuse themselves in capital cases. She wrote that the same logic did not apply to abortion or euthanasia.
“We might distinguish between executing criminals and killing the aged and the unborn in this way: criminals deserve punishment for their crimes; aged and unborn victims are innocent,” she wrote.
Meanwhile, Barrett’s path to confirmation is bolstered by support among social conservatives, who accuse Democrats of attempting to put a “religious test” in the way of the Supreme Court vacancy.
Barrett has only considered two cases touching on abortion as a federal appeals court judge, in both cases voting to reconsider rulings that struck down abortion restrictions.
In both appeals, Barrett signed onto opinions authored by another judge, rather than independently outlining her thinking, making an assessment of her abortion jurisprudence more complicated.
‘The dogma lives loudly within you’
One comment in particular from Sen. Dianne Feinstein, D-Calif., to Barrett energized conservatives and became something of a rallying cry.
During Barrett’s confirmation hearing in September of 2016, Feinstein said she had concerns related to past statements about religion.
“I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern,” Feinstein said.
Conservatives promptly put versions of the statement on merchandise as a sign of protest. “‘The Dogma Lives Loudly Within You’; Now It Lives Loudly On Your T-Shirt,” read one headline in The Daily Wire, a conservative outlet.
Democrats are likely to choose their words carefully in any potential Barrett confirmation hearings, but whether she will make decisions based on her faith is expected to be a prominent line of inquiry.
Membership in People of Praise
Barrett has also courted controversy with her membership in a small, primarily Catholic organization called People of Praise. Members of the group swear to uphold so-called “covenants” and are held accountable to advisors.
Female advisors were referred to as “handmaidens” until the term was introduced into popular culture by the dystopian television show, Hulu’s “The Handmaid’s Tale,” based on the Margaret Atwood novel.
Critics of the group have called it a “cult,” and said the idea of a justice on the Supreme Court being accountable to a spiritual leader crossed the typical bounds defining the separation between church and state.
As with Feinstein’s comments during Barrett’s confirmation, the controversy over Barrett’s membership in People of Praise similarly led to a conservative backlash against what some saw as anti-Catholic bigotry.
Conservatives deny that the group is a cult, and have criticized Democrats and newspapers like The New York Times for what they say are unfair attacks on religion. Conservative writer David French wrote in The National Review that “parachurch” organizations such as People of Praise are misunderstood.
“It betrays fundamental ignorance about the way millions of American Christians live their lives,” he wrote, noting that groups like People of Praise are common places where religious people seek advice on issues like dating, marriage, careers, and child-rearing. Words like “covenant,” he said, were very common.
Members of the organization have also pointed out that it is open to both Republicans and Democrats.