I think her point here is being distorted by righty critics. Although it’s understandable that they’d withhold the benefit of the doubt from someone who’s not just pro-choice but has already begun to echo the Democratic line that Roe should be left alone right at the moment when conservatives might finally have the votes to overturn it.
.@TomiLahren: Implying that we’re sending a Supreme Court justice to the bench to carry out religious judicial activism is a mistake and unconstitutional. It’s not what conservatives stand for. pic.twitter.com/025CT3gZ9v
— FOX & friends (@foxandfriends) July 11, 2018
She doesn’t mean to imply that there are no non-religious grounds to overturn Roe. (I think?) There are many. It’s based on an unwritten constitutional right; that right is derived from a part of the Constitution, the Due Process Clause, that doesn’t speak to unwritten rights as other parts of the Bill of the Rights do; it imposes a sliding-scale trimester legal framework conjured out of thin air, the Roe majority’s feeble attempt to, ahem, split the baby among abortion supporters and opponents. It took away the public’s power to legislate the issue, locking in simmering public tensions for decades. It’s bad law and bad policy. No need to grab your Bible to understand why.
But that’s not what she’s saying. She starts, in fact, by patting Kavanaugh on the back for being a “constitutional conservative.” Her point, I think, is to contrast the case for him with the case for Amy Coney Barrett. Was religion not one of the core reasons among her ardent supporters for putting her on the Court instead of Kavanaugh? She’s a respected academic and newly minted judge, but apart from her religious devotion there’s zero reason to think she’s more likely to overturn Roe than Kavanaugh is. There are no judicial opinions pointing towards her willingness to do so. How could there be when she’s been on the bench for less than a year? She’s suggested in her academic legal writing that precedents, even famous precedents, aren’t necessarily sacrosanct, but every judge in America — actually, every person in America — agrees with that. There were no leftist tears shed for Bowers v. Hardwick when Anthony Kennedy and the Court’s liberals nuked that decision 15 years ago.
There were two reasons to strongly favor Barrett over a conservative with a track record like Kavanaugh. One was identity politics: After Feinstein’s ugly comments during last year’s confirmation hearings about Barrett’s religious faith, putting her on the Court would have been the strongest possible affirmation that serious devotion is no bar to the highest public offices. But Barrett was in fact confirmed for the Seventh Circuit (with one more vote than Neil Gorsuch got for SCOTUS) and the Court will soon once again have a *majority* of Catholics, in case anyone’s laboring under the illusion that Catholicism is disqualifying. Mike Pence is no one’s definition of a squishy Christian and he’s the duly elected vice president of the United States. If the idea was that by confirming Barrett Republicans would somehow force Democrats to back away from their suspicion of demonstrative Christians, I … don’t know why you’d think that. Their party is drifting left. If anything, the new rallying cry after Justice Barrett was confirmed would be, “No more Barretts ever again!” The culture war is never over.
The other reason to prefer Barrett to Kavanaugh, though, was what Lahren implies — that, because of her faith, she’d be more likely to nuke Roe than he would. He’s a “constitutional conservative” but you never know what those guys might do on a cultural hot-button when the pressure’s on. But a devout Catholic? Surely her faith would steel her to cast the fateful vote. Ross Douthat, a Barrett supporter, acknowledged the tension in his own side’s position a few days ago:
A big Q for conservative nominees has always been their willingness to row against the tide of elite culture on “arc of history”/”sexual modernity” issues. This is an issue of temperament and mindset, not just philosophy and resume. And religious commitment looms large there.
— Ross Douthat (@DouthatNYT) July 3, 2018
It can’t be that Feinstein is out to lunch in worrying that “the dogma lives loudly” in Barrett when the social conservative case for elevating her to the Court rests on the fact that … the dogma lives loudly within her. Both sides are reading deeply into her religion for clues on how she’s likely to rule as a judge. There’s a religious test, but it’s being applied both ways. Lahren’s point, as I take it, is that if Roe is destined to go down, it’d be uniquely bad for the GOP to have it be seen as going down because it offends a particular faith rather than because it offends the Constitution. The enthusiasm for Barrett, all of 46 years old and with barely any jurisprudence to suggest why she should be nominated ahead of someone as qualified as Kavanaugh, would have made that more likely.
This is why I wonder whether the Barrett boomlet this time around will ultimately do her more harm than good. There’s no reason to believe she’ll be anything less than a perfectly scrupulous judge on the Seventh Circuit, laying aside personal views and ruling as she believes the law requires case by case. But thanks to Feinstein and the backlash to Feinstein, she’s at risk of being pigeonholed as the Christian warrior come to smite the heathen abortionists. It’s unfair to her, and if she ever does land on the Court and helps overturn, it’ll be used to discredit the decision. Hopefully as she builds a body of jurisprudence as a judge it’ll fade and the next go-round with her and SCOTUS will be devoted to anodyne topics like executive power. Lahren’s not wrong to worry about how it would have played now, though.