I made the mistake on Tuesday of tweeting that “Judge Amy Coney Barrett is very likable. She just is.” Boy, did all hell break loose on my Twitter feed.
I didn’t say that I supported her nomination for the Supreme Court, or that I agreed with her judicial philosophy. I just said I found her to be a likable human being, which as we all know makes a huge difference for ambitious, professional women like Barrett, Kamala Harris, Nancy Pelosi and so many others.
People unfollowed me. They yelled at me. They told me I had sold out to this “Handmaid’s Tale.” That’s where we are in our discourse. You can’t simply say someone is “likable.”
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One reason I find the judge so impressive is that her story is much like my own. Conservative women of faith. From small towns. Raised in deep religious traditions. The first woman in our respective families to go to law school. Where our stories diverge is that I am Black. She is white. She married and had a large family. I did not. She became a law professor and jurist. I went into politics and private practice. The reason I found myself rooting for this woman this past week is because she is not an Ivy Leaguer like almost every justice ever nominated and confirmed. She is small in frame like me. While I was troubled by some of her non-answers, her quiet manner, and her patience, are qualities perfect for a justice to have.
Having said that, I understand that this nomination is controversial because it comes so close to a national election, and I am opposed to this seat being filled before the American people decide on our next president. But the real rub here is that Barrett appears to be a staunchly conservative, anti-abortion prodigy of the Federalist Society. You don’t see women like her in the public square often assuming positions of power.
I am old enough to remember Justice Sandra Day O’Connor’s nomination in 1981. History records that she too was controversial. The right said she was really “pro-abortion” and the left said she was really pro-life. Reagan was catching flak from all over, but his historic, clearly qualified nominee was confirmed by a vote of 99-0.
O’Connor was widely viewed as both a federalist and as a moderate. Once confirmed, she approached each case narrowly, avoiding reliance on long-lasting sweeping precedents to justify her holdings. More frequently than not she sided with the court’s more conservative male bloc, although as she grew into her term she often was seen as the court's reliable middle or swing vote. O’ Connor once said: “The power I exert on the court depends on the power of my arguments, not on my gender.”
For Barrett, who is a self-described originalist or textualist, the fear is much greater, and I suspect unfairly so. I have seen the arguments made by senators and media pundits alike that someone who supports the “original text” of the Constitution must also support slavery, women being denied basic rights, the right to vote, and so on. That is ridiculous. Originalism does not mean that at all. What it means is that when reading and reviewing the U.S. Constitution, which has been amended 27 times since 1787, the judge looks to the “intent” of those who drafted the law.
When originalists look at the amendments, they likewise look to the intent of the drafters. So for example, the 15th Amendment gave Black men the right to vote. The 19th Amendment gave women the right to vote. Originalists do not then harken back to the text of the document “before the amendments” were passed to use in their analysis.
For all the concerns about how a Justice Barrett would rule in November on the Supreme Court case likely to decide the fate of the Affordable Care Act, I think she has given her answer. It rests in severability. She clearly would be inclined to remove a provision of the Act while leaving the law intact. She has said she reveres stare decisis (Latin for “let the decision stand”) and is for precedent. For the same reason, I do not think that this court, including Barrett, is likely to consider a direct challenge to the validity of its Roe v. Wade decision.
But again, I also do not think that Barrett being an originalist is the problem. The problem for her is that she is a conservative woman. Let’s be honest: If you look at Gallup's poll of the most admired women in America over the past decade, who heads that list? Hillary Clinton. Michelle Obama. Oprah. Nancy Pelosi. Ruth Bader Ginsburg. Elizabeth Warren. Kamala Harris. Only first ladies Laura Bush and Melania Trump make the list as conservative women.
Conservative women are not liked by the media or profiled by the media. They are seen as anti-woman because they are often anti-abortion. They are seen as anti-woman because they tend to be married, more traditional, mothers of larger families, despite being successful in their own careers. We have no conservative female icons in America. Not at least in the mainstream media. Sarah Palin, when she was nominated for VP in 2008 had a following for sure, but she was not widely viewed as a female role model in the way Geraldine Ferraro was as the first woman VP nominee in 1984.
Democratic and liberal women in America get all the press and all the love. We need to evolve past this. We need to agree that all of us as women have been subject to gender discrimination, sexual harassment in some form, disrespect from male colleagues, and on and on. All of us. Not just some of us.
What I want to say to my friends on the left and progressive side of politics is that Judge Barrett is going to be confirmed. She will be our next female justice. So our hope has to be that she turns out to be more like Justice O’Connor than her mentor, Justice Scalia. Or maybe, just maybe, we end up with her being like neither of them.
And instead, as she carves out her own unique voice and judicial philosophy over the 35 years or more that she is likely to be on the court, just maybe the media—and many Americans—will recognize this conservative woman as the role model that she already is.
