Judge Amy Coney Barrett of the 7th Circuit Court of Appeals has emerged as a front-runner to fill the seat left vacant by the death of Justice Ruth Bader Ginsburg, three sources told NBC News on Saturday.
President Donald Trump and Senate Majority Leader Mitch McConnell have vowed to nominate and vote on a replacement for Ginsburg with the presidential election less than two months away.
Allison Rushing, 38, of the 4th Circuit Court of Appeals based in Virginia is also being considered for the nomination, NBC News reported. Two other judges are under serious consideration as well, according to NBC News, including Barbara Lagoa, 52, of the 11th Circuit Court of Appeals in Georgia, and Amul Thapar, 51, of the Sixth Circuit Court of Appeals in Cincinnati.
Barrett, 48, who was appointed by Trump and has served on the federal appeals court in Chicago since 2017, was on a list of potential nominees Trump updated earlier this month. She was also among those considered to replace Justice Anthony Kennedy when he retired in 2018.
To fill Kennedy’s spot, Trump ultimately picked Brett Kavanaugh instead, an establishment Republican figure who angered some on the religious right for not being conservative enough even as he set off storms of panic on the left. Axios’ Jonathan Swan reported in 2019 that Trump said he was “saving [Barrett] for Ginsburg.”
Though any confirmation fight in the midst of a presidential election will be hard fought, the battle is expected to be amplified if Barrett is picked, because of her track record. In particular, critics of Barrett have zeroed in on her prolific academic writings, in which she raised questions about the importance of respecting precedent and referred to “unborn victims” of abortion.
In a 2013 article in Notre Dame’s quarterly alumni magazine, Barrett is paraphrased as saying the landmark abortion ruling Roe v. Wade, the decision which legalized abortion nationwide, created “through judicial fiat a framework of abortion on demand.”
Barrett said in a 2013 speech at Notre Dame, however, that it is “very unlikely at this point that the court is going to overturn Roe [v. Wade].”
“The controversy right now is about funding,” she said, according to Notre Dame’s student newspaper. “It’s a question of whether abortions will be publicly or privately funded.”
During the 2016 hearings for her nomination to the 7th Circuit Court of Appeals, Democrats, including Sen. Dianne Feinstein of California, pressed Barrett on whether her Catholic faith would cloud her legal judgment.
“The dogma lives loudly within you, and that’s a concern,” Feinstein said during the hearing.
Barrett responded: “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they arise from faith or anywhere else, on the law.”
Barrett was ultimately confirmed in a 55-43 vote by the Senate in 2017. The fact that she was already vetted and previously confirmed by the Senate could help her case in the Republicans’ effort to quickly confirm a nominee.
At the time of her 2017 confirmation, three Democratic senators supported her nomination: Joe Donnelly, who was voted out in 2018, Tim Kaine, D-Va., and Joe Manchin, D-W.Va.
Every Republican in the Senate at the time voted to confirm Barrett in 2017.
Barrett’s views on abortion, in particular, stand in stark contrast to the late Ginsburg, who died on Friday surrounded by her family at her home in Washington, D.C., due to complications of metastatic pancreatic cancer, the court said.
The vacancy allows Trump to nominate his third justice to the court, allowing him to swing the bench further to the right. He previously nominated Justices Neil Gorsuch and Kavanaugh.
Only an hour after the Supreme Court announced Ginsburg’s death, Senate Majority Leader Mitch McConnell on Friday pledged he will hold a vote on Trump’s eventual nominee to fill the vacancy. McConnell said last year he would seek to confirm a Trump nominee if a vacancy opened, despite vowing during President Barack Obama’s presidency to refuse any appointments during an election year.
The Supreme Court had a 5-4 majority of Republican appointed justices, and a 6-3 GOP majority could transform the shape of the law and maintain a conservative majority for years.
Ginsburg, a feminist icon who championed women’s rights, was appointed to the Supreme Court in 1993 and vowed to remain as long as her health allowed. Ginsburg told her granddaughter before she died that her “most fervent wish is that I will not be replaced until a new president is installed.”
Democratic presidential nominee Joe Biden, who has served as chairman of the Senate Judiciary Committee, said on Friday night that the vacancy should not be filled until after the November election and noted that Senate Republicans didn’t consider the nomination of Judge Merrick Garland during the Obama presidency.
“There is no doubt — let me be clear — that the voters should pick the president and the president should pick the justice for the Senate to consider,” Biden told reporters in Wilmington, Delaware. “This was the position the Republican Senate took in 2016 when there were almost 10 months to go before the election. That’s the position the United States Senate must take today.”
—CNBC’s Brian Schwartz, Tucker Higgins and Emma Newburger contributed to this report.