Amy Coney Barrett Would Destroy Ruth Bader Ginsburg’s Legacy

And that’s exactly why President Trump would nominate her

Photo: Library of Congress/Corbis/VCG via Getty Images

For nearly two years, I’ve made doomsday predictions about federal judge Amy Coney Barrett assuming Justice Ruth Bader Ginsburg’s seat on the U.S. Supreme Court. Well, doomsday is here. Barrett’s name began circulating as a top contender for the lifetime job within hours of Ginsburg’s death on Friday. By Saturday afternoon, Trump said that his nominee would “most likely” be a woman.

Barrett is one of the 216 and counting Trump-appointed federal judges the Republican-controlled Senate has confirmed to lifetime seats, many of which Majority Leader Mitch McConnell held open through the Obama years. She fit into the new generation of overwhelmingly white, mostly male, extremely conservative, and comparatively young lifetime federal judges transforming the courts for the next generation. (Barrett is 48 years old.) Unlike Ginsburg, who spent 13 years as an appeals court judge before being elevated to the Supreme Court, Barrett — formerly a law professor — has been on the bench for less than three years.

Back in October 2018, I believed Trump might rescind Brett Kavanaugh’s embattled Supreme Court nomination and submit Barrett’s name to the Senate instead. The SCOTUS switcheroo would solve two problems: It would pacify conservatives who openly worried Kavanaugh didn’t adequately oppose abortion rights, and it would arm them with a false god they could wield against the Big Bad Feminists who protested Kavanugh’s confirmation in the wake of Christine Blasey Ford’s sexual assault allegations. Barrett represented the ultimate judicial gaslighting.

Three days before Kavanaugh’s 50-48 confirmation to a lifetime position on the highest court in the land, The Atlantic’s Adam Serwer wrote an article about Trump and his supporters titled “The Cruelty Is the Point.” The cruelty is the point again now. Judge Barrett is everything Justice Ginsburg wasn’t. Trump wants us to hurt that much more.

Amy Coney Barrett first came to my attention in October 2017 when I was covering Congress and the Trump administration for a news outlet focused on reproductive health, rights, and justice. Sen. Mitch McConnell had gathered half a dozen of his white Republican male colleagues to defend Barrett’s nomination to the Seventh Circuit Court of Appeals, the federal court that had been involved in a prolonged battle over whether the University of Notre Dame could defy the Affordable Care Act’s birth control benefit and deny contraceptive coverage to students and employees. (The Trump administration later exempted the school in a settlement that’s the subject of its own legal challenge.) Barrett, then a Notre Dame law professor who had never been a judge, belonged professionally to University Faculty for Life and privately to People of Praise, a Catholic group that long referred to women as “handmaidens.”

“The dogma lives loudly within you, and that’s a concern,” Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, declared during the appeals court nomination process to the ire and delight of Senate Republicans. Barrett was a victim of religious persecution by Senate Democrats, McConnell and company argued. In the same breath, they praised Barrett for defending “religious liberty,” the kind that imposes beliefs against abortion, contraception, and LGBTQ rights. The Senate approved Barrett 55-43, including the votes of three Democrats, two of whom remain in the Senate — Sen. Tim Kaine and Sen. Joe Manchin.

For Ginsburg, the right to abortion was as much about equal protection as individual autonomy, according to her 1993 Senate confirmation testimony. “When government controls that decision for [a woman], she’s being treated as less than a fully adult human responsible for her own choices,” she said. Barrett is like a coiled fist, poised to attack bodily autonomy, including abortion, contraception, and trans-affirming health care. If Barrett controls those decisions for people, they will be treated as less than fully adult humans responsible for their own choices.

As a federal appeals court judge, Barrett joined dissents in abortion cases on forced fetal burial and parental consent that could hardly have been more ideologically opposed to the ringers that made Ginsburg an icon. Ginsburg always thought Roe v. Wade, the 1973 Supreme Court case that legalized abortion nationwide and preceded her tenure, was weak: “She continued to critique Roe as poorly reasoned and too sweeping until the end,” journalist and Notorious RBG author Irin Carmon wrote in the justice’s obituary for New York magazine.

Under Roe, abortion remains disproportionately out of reach for people with low incomes and people of color, thanks to the Hyde Amendment’s prohibition on federally funded abortion coverage and manifold state restrictions. Abortion without access is a right in name only. Adding Barrett to the bench alongside Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh provides the last vote necessary to eliminate the federal right to an abortion, no matter how Chief Justice John Roberts votes.

“If and when RBG dies, Trump will nominate Amy Coney Barrett,” I ranted again to a friend last month, as the presidential election began to eat up some of the coronavirus pandemic headlines. This prediction gave me no pleasure. I don’t want to be right. I want women and all people with uteruses to have rights. The best way to honor Ginsburg’s legacy, and dying wish, would be to protest Barrett’s nomination with our rage that’s only grown from Kavanaugh and the larger takeover of the federal judiciary.

There’s no better way to describe replacing Ginsburg with Barrett than a cliché: It’d rub salt in the wound that ripped open in people who can least afford their bodily autonomy to be wrested away. Salt in the wound is Trump’s favorite flavor.

I’m a Washington, D.C.-based journalist covering reproductive and LGBTQ policy under Congress and Trump. I write essays, too. She/her are my pronouns.

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