Third in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg
In my last post, I suggested that purely from the standpoint of conventional political strategy, the President should nominate Sixth Circuit Judge Joan Larsen to fill Justice Ruth Bader Ginsburg’s seat on the U.S. Supreme Court. Judge Larsen is reportedly on the short list, so it’s certainly possible.
But we also know that the President’s political instincts rarely align with convention. And if he wants a public fight instead of a better chance of an electoral win, he has other options.
I think he will go with the current consensus front-runner, Amy Coney Barrett. And he’ll do it not because of her qualifications — which are excellent — but because her nomination is likely to create the most short-term political chaos.
Judge Barrett has been a political lightning rod for Democrats since she was first nominated to the Seventh Circuit Court of Appeals in 2017. A devout Catholic who formerly taught law at Notre Dame, she has been open about her faith and the religious principles by which she lives. Her confirmation hearings three years ago brought out particular ugliness from Senator Dianne Feinstein (D-CA), who pressed Barrett on her religious beliefs, and reportedly told her, “the dogma lives loudly in you.” Other Democrats on the Senate Judiciary Committee, apparently fearful that Catholic judges would curtail abortion rights, have similarly attacked the President’s judicial nominees on the grounds of their religion.
This is exactly the fight that the President may be looking for. Nominating Judge Barrett to the Court would allow Trump to rekindle that fight and place many Democrats — including Vice Presidential nominee Kamala Harris (whose own impertinent lines of questioning rival those of Feinstein) on the defensive. Whether Barrett is ever confirmed — or even makes it to a vote — is less important to the President than the spectacle of turning the Senate hearings into a political football.
A Barrett nomination, in short, allows the President to set the terms of the conflict. Senate Democrats want to make the next five weeks about the procedural impropriety of pushing through a Supreme Court nominee in the shadow of a looming national election. The President, by contrast, wants to lure the Democrats into public expressions of obsession over the nominee’s faith. If confirmation hearings turn into a series of attacks on religion — or even comments that can be painted as attacks — the President wins. He might even hope to peel off a few religiously devout Black and Hispanic voters in the process. And if the Democrats stay on message and refuse to take the bait, Trump is no worse off politically than if he had nominated any other highly qualified candidate.
To be clear, this view is not a reflection on the nominee’s qualifications or abilities. Judge Barrett surely would make a fine Supreme Court Justice. She is very well-qualified for the position, and has demonstrated quiet competence since her confirmation to the Seventh Circuit. But her nomination would also invite a display of histrionics from the liberal establishment in a way that nominating Judge Larsen would not, and that may be exactly what the President is looking for.