Still some hours before Amy Coney Barrett would speak before the Senate Judiciary Committee, Senator Marsha Blackburn used her opening statement to wonder aloud: Why hadn’t more of her colleagues “jumped at the chance” to back such a “legal superstar” and “working mom”? She had an answer. “As today’s increasingly paternalistic and frankly disrespectful arguments have shown, if they had their way, only certain kinds of women would be allowed into this hearing.” In this fantasy, senators who opposed the nomination were cast as the real “handmaidens” of the patriarchy.
Barrett—perfectly composed, as advertised—did her part to appear as an impersonal and pure vessel for the law. “Part of the rationale for courts adhering to the rule of law, and for judges taking great care to avoid imposing their policy preferences, is that it’s inconsistent with democracy,” she said Tuesday. “Nobody wants to live in accord with the law of Amy. I’m sure not even my children would want to do that.”
As the confirmation hearings opened on Monday, voters in Georgia formed lines that would crawl on for 11 hours before some could cast their ballots. A panel of federal judges would soon rule that voters in all of Harris County, Texas, home to more than four million people, only needed one ballot drop-off box. The long lines in Georgia were owing to the 2013 Supreme Court ruling that rolled back parts of the Voting Rights Act, and in Texas, three of the judges ruling on the accessibility of ballot boxes were appointed by Trump. Millions of voters are at the mercy of such court rulings, and in an election during which Republicans are racing to get Barrett confirmed before Trump misses his chance. Somehow, in this mix, Barrett told the members of the Senate Judiciary Committee on Tuesday that what Congress does is about “policy preferences,” in contrast with what she does as a judge, which is not.
The lie isn’t worth pointing out. But the soft power behind it is: delivered in an even tone, politely firm when needed. As one of her law professors recently told a reporter, “The great things [sic] about Amy is she was never a problem.” There’s a strong conservative women’s lineage behind it, the path laid out by the late conservative political operator Phyllis Schlafly, as Sarah Jones at New York argued ahead of the hearings. The voice and presentation were a strange mix of two things Barrett is not: the kind of woman who cheerfully delegates politics to her husband and a cool-headed jurist guided in her decisions only by a literal reading of the Constitution. How dare anyone think there were strongly held convictions under there?
That is the big conceit of the hearings, wrapped in paper-thin layers of motherhood and faith. It is only more galling because you can clearly find evidence of Barrett’s beliefs. She was a member of a faculty anti-choice group at Notre Dame. She signed an advertisement stating that the legacy of Roe v. Wade was “barbaric.” Yet on Tuesday, Barrett told a struggling Senator Dianne Feinstein that she has been “forthright” about her views on abortion. Feinstein even fed her the “forthright” line. Her disclosure questionnaire for the Senate may not have stated that she had an opinion one way or another on Roe. But that’s only accurate because she did not disclose the ad, placed by a group that wants to criminalize abortion providers, until The Guardian disclosed it for her.
She has other beliefs. In 2016, Barrett waved her hands in a faux-helpless gesture when she referred to transgender girls as “physiologically, a boy” at a Jackson University lecture. Barrett did not stumble at all when she spoke the phrase “sexual preference” in her answer to Senator Feinstein’s question about discrimination. The language would be familiar to groups bringing LGBTQ discrimination cases before the Supreme Court, like Alliance Defending Freedom. Barrett has lectured several times at ADF’s law fellowship program. The group refuses to acknowledge transgender people truthfully, even and perhaps especially in court, where it also misgenders and misnames them. It, too, refers to trans women and girls as “physiologically” male—even seeking to remove a judge who had admonished it for doing so from one of its numerous trans discrimination cases. ADF also sees no legitimacy in what it calls “same-sex sexual attraction.” But Barrett wouldn’t offer an opinion, when asked directly, on cases related to anti-LGBTQ discrimination. As she said at Jackson University, it’s not her job to decide what she calls “policy debates.” Her job, she says, is to decide who decides.
Barrett had clerked for the late Justice Antonin Scalia. Her views go much further than his own, wrote Gregory Bassham in Commonweal magazine. Justice Scalia recognized settled legal precedents. Even if he thought they were incorrect by his strict “originalist” reading of the law, Bassham wrote, Scalia recognized that “it would be wholly unrealistic for judges to order a return to bygone days when women had few rights, states were free to ignore the Bill of Rights, the federal government had no obligation to treat all citizens equally, preteen children could be executed, and crimes could be punished by floggings and bodily mutilations.” Barrett has written that while she recognizes this is a difficult question, “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution than a precedent that she thinks clearly in conflict with it.” It appears she has landed on less “faint-hearted” originalism than her mentor.
It may not matter how successful Barrett’s performance of nonthreatening, perfected femininity is, given how much precedent Republicans are willing to blow past to confirm her nomination. And even if this was a fair fight, convincing anyone that Barrett is who she presents herself to be isn’t the intention. It’s meant to lend others around her plausible deniability, to claim she doesn’t have an agenda and, by extension, neither do they.