• Keyden Smith-Herold

President Trump Should Have Nominated Amy Coney Barrett for the Supreme Court

On July 9th, President Trump Nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit. He clerked for Justice Kennedy, worked for Solicitor general Kenneth. W. Starr during the George W. Bush administration, and worked as a Bush White House Staff Secretary— all before entering the bench.

Kavanaugh is a moderate conservative at best. Overall, his record is lengthy and his jurisprudence would be defined as originalism/textualism.

There are however, a few concerns pertaining Kavanaugh’s record. In Seven Sky v. Holder, he wrongly dissented from the majority opinion upholding the constitutionality of the Affordable Health Care Act, giving support to the claim that the act was indeed a tax and not a penalty.

In Priests for Live v. Department of Health and Human Services, Kavanaugh stated that government had a “compelling interest [in] facilitating access to contraceptives” for religious employees pertaining to that specific case. This is wrong of course, as the government should not force a religious organization to do anything—especially it violates their beliefs.

There are also worries that Kavanaugh would not vote for a complete overturn of Roe v. Wade—a disastrous decision both constitutionally and morally—and would decide to chip away abortion laws little by little, at best.

Details about Kavanaugh aside, Judge Amy Coney Barrett would have been the best choice for the Supreme Court. President Trump played it safe by nominating Judge Kavanaugh. It is obvious that the left would vehemently oppose anyone Trump nominates—we have already seen people blindly denouncing whoever Trump would appoint— so why not go for the best candidate? The consequences and backlash would have been the same regardless.

President Trump could have nominated President Obama or Judge Merrick Garland for the court, and the left would still do what they always do — protest, scream, harass, smear, ad. infinitum. They simply do not want to hand the President a potential win.

Barrett of Indiana is a Judge of the United States Court of Appeals for the Seventh Circuit, a former Notre Dame law student and professor, a mother of 7, and a strict originalist and textualist. Her record is not as lengthy as Kavanaugh, but this does not disqualify her for the position. Her judicial rulings are actually more promising than Kavanaugh's.

At her confirmation hearing, Senate Democrats attacked Barrett for her Catholic faith, and she correctly responded, “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law”—mirroring the words of Scalia, with whom she clerked.

Barrett is a prolific and perspicacious writer in all respects, with a lot of her writings published in law reviews across the U.S. She is without a doubt more predictable when it comes to her judicial philosophy. Moreover, Barrett would have most likely been the deciding factor in overturning Roe v. Wade. It is doubtful that Kavanaugh would do the same, as he has simply called the decision "precedent".

Barrett’s stance, however, on ‘stare decisis’ and precedent is that “public response to controversial cases like Roe [v. Wade] reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging.”

She is completely correct. Plessy v. Ferguson and Dred Scott v. Sandford were technically "precedent". Does that mean these decisions should have been left alone? Of course not. Barrett understands that an established "precedent", no matter how long in effect, does not make any ruling automatically right — whether constitutionally, morally, or both.

She also correctly explained the conflict between the law and a Catholic judge’s religious views, stating “Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard.”

Another reason to appoint Barrett is that the average American citizen can easily connect to her. She did not attend an Ivy League University—Kavanaugh is a Yale grad— and her educational background (in terms of where she attended) can show young Americans, especially females, that an Ivy League education is not necessarily needed to reach the highest positions in this country.

Although Barrett was not nominated this time around, there is speculation that she will be the next one chosen if President Trump has the privilege of nominating a third judge to the Supreme Court. As for Kavanaugh, there is no reason why conservatives should not support him, and he should have a fairly easy time getting confirmed.


Keyden Smith-Herold is the Editor-in-Chief of The Daily Analytical, (dailyanalytical.com) a brand new publication.