Ramesh Ponnuru says yes. Before the latest Kavanaugh kerfuffle, I would have agreed.
After the latest Kavanaugh kerfuffle, I think this probably won’t matter.
These would be completely anodyne comments coming from a judge in any other administration, but Trump is Trump.
In comments Saturday at a panel at William & Mary Law School, Judge Barrett backed Chief Justice John Roberts ’s public statement last year that judges shouldn’t be seen as ideological mirrors of their patrons, which came after President Trump called a ruling that he opposed on immigration the product of an “Obama judge.”
“The chief justice, I think, articulated what members of the judiciary feel,” Judge Barrett said of his comments to Mr. Trump. “The chief justice responded and pushed back and said, ‘You know, we don’t have Obama judges.’”…
The moderator, William & Mary law professor Allison Orr Larsen, asked the judges what they perceived as the greatest threat to the judiciary.
Judge Barrett said it was “people perceiving us as partisan.” While judges differ in their legal theories and methods—and their votes sometimes can be predicted along ideological lines—they aren’t driven to produce specific outcomes, she said.
“I wish it were otherwise, but I think this makes Justice Barrett less likely,” said Ponnuru about those comments. He’s not crazy to feel that way. Trump prizes loyalty above all things and what Barrett did at William & Mary was not only signal that she wouldn’t necessarily be “loyal” to him as a judge — again, standard patter in any other era — but she took John Roberts’s side against the president in a dispute that got major media attention. Remember?
JUST IN: Chief Justice John Roberts speaks out in defense of an "independent judiciary" in the wake of President Trump's latest attack on the judiciary. (News first reported by @shermancourt and the AP.) pic.twitter.com/22YssGOWXv
— Chris Geidner (@chrisgeidner) November 21, 2018
Sorry Chief Justice John Roberts, but you do indeed have “Obama judges,” and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an “independent judiciary,” but if it is why……
— Donald J. Trump (@realDonaldTrump) November 21, 2018
…..are so many opposing view (on Border and Safety) cases filed there, and why are a vast number of those cases overturned. Please study the numbers, they are shocking. We need protection and security – these rulings are making our country unsafe! Very dangerous and unwise!
— Donald J. Trump (@realDonaldTrump) November 21, 2018
That wasn’t the first time Trump had worried about disloyalty from a “Trump judge” either:
[E]arlier this year [in 2017], Trump talked about rescinding Gorsuch’s nomination, venting angrily to advisers after his Supreme Court pick was critical of the president’s escalating attacks on the federal judiciary in private meetings with legislators.
Trump, according to several people with knowledge of the discussions, was upset that Gorsuch had pointedly distanced himself from the president in a private February meeting with Sen. Richard Blumenthal (D-Conn.), telling the senator he found Trump’s repeated attacks on the federal judiciary “disheartening” and “demoralizing.”
The president worried that Gorsuch would not be “loyal,” one of the people said, and told aides that he was tempted to pull Gorsuch’s nomination — and that he knew plenty of other judges who would want the job.
Now here’s Barrett in a public forum echoing Gorsuch’s point about Trump’s demoralizing attacks on judicial independence, albeit in more tactful terms. To top it all off, Politico reported last year that Barrett’s interview with Trump for the SCOTUS seat that eventually went to Brett Kavanaugh didn’t go well, with Barrett having “performed poorly” — whatever that means. Presumably it means they didn’t hit it off. Like I said at the time, go figure that a bookish Catholic mom and the guy responsible for the “Access Hollywood” tape didn’t have great personal chemistry.
Put it all together and you can see why Ponnuru’s concerned. For all her strengths, Barrett’s unlikely to appeal to Trump as the option available to him who’s most likely to be “loyal.” Imagine, in fact, that the current Court renders a major decision that goes against him before the next vacancy opens up, with Gorsuch or Kavanaugh or both joining the anti-Trump majority. Trump will blow a gasket. Loyalty will become even more prized to him in a nominee than it is now. That means looking beyond Barrett.
But there’s one thing she has in her favor that’s very important, so much so that Trump simply won’t be able to resist nominating her. No, not the fact that she’s a woman; there are plenty of other talented Republican women judges. And no, not the fact that her devout Catholic faith appears to make her a better bet to vote to overturn Roe than most nominees. (Barrett might even take offense at that suggestion.) What she has in her favor is that she’s unquestionably the candidate whose nomination the GOP base has concluded would own the libs the hardest. In particular, if Ginsburg’s seat were to open up, there’s probably no substitute for Barrett whom righty activists would accept at this point. If you want to see Liberal Tears — and that’s what much of Republican politics is about now — then the choice is clear.
And now that righties are newly and justifiably enraged at the latest Kavanaugh smear, Liberal Tears are the only thing that will slake their thirst.
If so, it backfired completely, since it has only hardened the right's resolve to ram Amy Coney Barrett down progressives' throats when the time comes to replace RBG. And the base would revolt if it's anyone else. So, perversely, the left has boxed Trump in on this. Congrats. https://t.co/IvHiOsUQFV
— Varad Mehta (@varadmehta) September 17, 2019
Replacing the left’s judicial heroine, the Notorious RBG, with a judge who’s cracked up to be the female version of Antonin Scalia would be an ideological triumph for conservatives so total that I don’t think Trump could resist. He’d be reluctant to go with Barrett because of all the things I laid out above, but his arm would be twisted. Barrett’s supporters would lean on him by assuring him that literally nothing he could do between now and Election Day would get them as psyched to vote as pulling off the ultimate Court-related lib-owning would. He’d have no choice but to nominate her, whatever his personal misgivings. Watch and see.