The more Dems attack her, the more likely she is to be the nominee to replace Anthony Kennedy.

Neil Gorsuch was an incredibly safe pick for Trump. Despite the plaintive wails of Democrats about a “stolen” seat, they didn’t have much with which to go after Gorsuch on the merits.

Nonetheless Democrats filibustered Gorsuch, forcing Republican’s to play the nuclear option for a SCOTUS nominee (as Democrats did in 2013 for all lower courts and made clear they would do if Hillary won and they regained the Senate).

Having forced the nuclear option for Gorsuch, Democrats made it easier for Trump to pick a more controversial nominee next time. It was a strategic error for Democrats, much as their exercising the nuclear option for all lower courts in 2013 came back to bite them.

We are now at that next time, with Justice Anthony Kennedy retiring. What has changed is that Republicans have an even thinner margin in the Senate after losing the Alabama seat.

Most of the reporting on the “short list” includes the same names — Amy Coney Barrett, Thomas Hardiman, Brett Kavanaugh, Raymond Kethledge, Amul Thapar. The Daily Caller reports that Barrett and Kavanaugh are the two leading contenders.

Any of them would be fine.

My sense is that Kavanaugh is the “safest” pick, in the sense of a Gorsuch-like relatively non-controversial nominee. That’s important, because Trump can’t afford to lose any Republicans. There is a one-vote margin, but McCain’s health is in question. Losing Susan Collins (the most likely defector) would not be fatal to a nomination assuming McCain can vote (and Pence breaks a tie), but that’s risky.

While Kavanaugh may be the safest choice, he may not be the best choice. Aaron Blake at WaPo explains why an Amy Barrett nomination would make sense to Trump:

Amy Coney Barrett is thought to be one of the leading contenders and is almost surely one of the two women Trump has now said is on his shortlist ahead of the announcement of the pick July 9. She’s the one female candidate who was on pretty much everybody’s shortlist, in fact. And she checks a lot of boxes. Like his previous pick, Justice Neil M. Gorsuch, she’s young (46), good on her feet, telegenic, unmistakably conservative and, with seven children, has the kind of family you want sitting behind you during tense confirmation hearings. Unlike Gorsuch, of course, she’s a woman — a fact that could help mitigate the onslaught of questions about whether she would help overturn Roe v. Wade. Barrett is also from Indiana, which could apply pressure on its vulnerable Democratic senator, Joe Donnelly, to vote for her. As far as reinventing the court for decades to come, she’s everything Trump’s base could want. But she also gives something Trump something less tangible: The opportunity to stoke a culture war.

Culture war? That would be liberal Democrats’ war against Barrett’s Catholicism. We covered that when she was nominated by Trump for the Court of Appeals, Some worry about anti-Catholic bigotry against 7th Cir. nominee Amy Barrett.

The questioning of Barrett from Democrat Senators smacked of a religious litmus test (meaning, Democrats opposed a Catholic nominee who actually practiced Catholicism).

﻿

We noted in that post that NY Times article amplifying the anti-Catholic attitude of the Democrats, Some Worry About Judicial Nominee’s Ties to a Religious Group:

One of President Trump’s judicial nominees became something of a hero to religious conservatives after she was grilled at a Senate hearing this month over whether her Roman Catholic faith would influence her decisions on the bench…. Ms. Barrett told the senators that she was a faithful Catholic, and that her religious beliefs would not affect her decisions as an appellate judge. But her membership in a small, tightly knit Christian group called People of Praise never came up at the hearing, and might have led to even more intense questioning. Some of the group’s practices would surprise many faithful Catholics. Members of the group swear a lifelong oath of loyalty, called a covenant, to one another, and are assigned and are accountable to a personal adviser, called a “head” for men and a “handmaid” for women. The group teaches that husbands are the heads of their wives and should take authority over the family. Current and former members say that the heads and handmaids give direction on important decisions, including whom to date or marry, where to live, whether to take a job or buy a home, and how to raise children. Legal scholars said that such loyalty oaths could raise legitimate questions about a judicial nominee’s independence and impartiality. The scholars said in interviews that while there certainly was no religious test for office, it would have been relevant for the senators to examine what it means for a judicial nominee to make an oath to a group that could wield significant authority over its members’ lives.

Now that Barrett is on the short list to replace Justice Kennedy, the attacks on her Catholicism are coming fast and furious, including from Twitter nutter and Democrat Senate candidate Richard Painter:

A religious group in which members take an oath of loyalty to each other and are supervised by a male “head” or female “handmaiden.” That looks like a cult. Now she wants a seat on SCOTUS for the sole purpose of overturning Roe v. Wade. The answer is NO.https://t.co/i3lb7nVJPU — Richard W. Painter (@RWPUSA) June 30, 2018

Two awful choices. At least one —Amy Barrett — is downright dangerous unless we want to live in a theocracy. How low will the anti-abortion movement go? Judges Brett Kavanaugh and Amy Coney Barrett are leading candidates for Supreme Court seat https://t.co/hZV2PhuYg8 — Richard W. Painter (@RWPUSA) June 30, 2018

This could be the fight Trump wants.

This is how the Judicial Action Network played the issue for the appeals court nomination:

Michael Brendan Dougherty at National Review notes that Dems will not be able to control themselves over a Barrett nomination:

… her appointment, in particular, has several political advantages. Millions of Republicans held their noses and voted for Trump because they felt it was necessary to protect the liberty to practice their faith. The fight over Barrett’s confirmation would almost certainly build trust between President Trump and social conservatives. It would energize Republicans ahead of the midterm elections. The facts of Barrett’s life — that she is a mother of seven children, and that when she speaks about her Catholic faith, she speaks about God as if she really believes in His existence — will provoke nasty and bigoted statements from Democratic senators and liberal media personalities. Again.

And sure enough, Chuck Schumer is attacking Barrett:

Amy Coney Barrett is a judge on the Court of Appeals for the 7th Circuit & on @realDonaldTrump’s pre-approved list for SCOTUS. She passed his “litmus test” on overturning Roe v. Wade & striking down the ACA. Here’s where she stands on Americans' big issues: — Chuck Schumer (@SenSchumer) July 2, 2018

The bottom line: Judge Barrett has given every indication that she will be an activist judge on the Court. If chosen as the nominee, she will be the deciding vote to overturn Roe v. Wade and to strike down pre-existing conditions protections in the ACA. #WhatsAtStake — Chuck Schumer (@SenSchumer) July 2, 2018

The ramping up of attacks on Barrett may in fact seal her destiny to be the nominee:

My prediction: the more people speak nonsense & worse against Judge Barrett (who is no relation to me), the more likely Trump is to pick her. Trump loves the limelight, controversy, and he knows how to tweak the opp'n. — Seth Barrett Tillman (@SethBTillman) July 2, 2018

The attacks on Amy Barrett due to her Catholicism are … going to get her nominated. — Jack Goldsmith (@jacklgoldsmith) July 2, 2018

As Rush says, they will always tell us who they fear.

The question is, however, not what Chuck Schumer thinks, but what Susan Collins and a couple of other weak Republicans think. Will Trump take the risk of a Republican defection over Barrett? It’s not all one-sided, though. If the Barrett nomination is portrayed in the media as a fight over Catholicism, will vulnerable Democrat Senators up for reelection in November vote against Barrett?

The “rational” me says someone in Trump’s position would take the safe pick, Kavanaugh. Barring a skeleton in the closet, he’ll be confirmed before the First Monday in October.

Which means WELCOME MS. JUSTICE AMY CONEY BARRETT.



