President Donald Trump announced that he intended to fill a vacancy on the Supreme Court following the passing of Supreme Court Justice Ruth Bader Ginsburg on September 18. President Trump declared that he would only consider female nominees, and legal and political commentators quickly identified a number of potential candidates. The president indicated that he would announce his pick to fill the vacancy on Saturday, September 26. CNN, Bloomberg, and other media outlets quickly identified Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals as the favorite to fill the seat.
Journalists and legal analysts describe Judge Barrett’s record as reliably conservative and originalist. She clerked for former justice Antonin Scalia and worked as a law professor for 15 years at the University of Notre Dame. In May 2017, President Trump nominated her to a vacancy on the 7th Circuit. Her nomination hearing was contentious. Democratic senators attacked her for her Catholic faith, with Senator Dianne Feinstein (D-Calif.) suggesting that “the dogma lives loudly within you.” Nonetheless, the Senate confirmed her nomination by a 55-43 vote.
As with many issues, significant changes in federal immigration policy often face legal challenges that rise to the review of the Supreme Court. Any change on the court has the ability to alter the legal landscape for decades to come. Before Ginsburg’s death, the Court often split into 5-4 decisions, although Chief Justice John Roberts, a George W. Bush nominee, has become a centrist swing vote. Were the Senate to confirm a nominee such as Barrett, the Court’s conservative wing (Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh) would have a significant majority over both the liberal wing of the court (Stephen Breyer, Sonia Sotomayor, Elena Kagan) and the more centrist Roberts.
Barrett has two recent opinions regarding the issue of immigration. She authored the dissenting opinion in the case Cook County v. Wolf in June 2020. The 7th Circuit’s decision temporarily barred the Trump Administration from imposing new rules that would exclude potential immigrants from green cards if they were likely to require public assistance. Barrett’s dissenting opinion supported the Trump Administration’s action and argued that Cook County, Illinois’ definition of public charge was too narrow and was not supported by law. The 2nd Circuit Court subsequently lifted that ban in September 2020.
Before that, Barrett wrote the majority opinion in the 2019 case Yafai v. Pompeo. Barrett ruled that the wife of a U.S. citizen could not challenge the denial of her visa application by a consular officer, who suspected the wife of child smuggling.
Barrett’s time on the appellate court has been short, and subsequently does not have a long record of immigration decisions. That said, her two rulings indicate that she supports the legality of President Trump’s public charge ruling and the independence of consular officers to reject immigration petitions without obtrusive review from activists. While her nomination is far from guaranteed the frontrunner at this time has two rulings on immigration, one of which defended the new public charge rule, one of the Trump administration’s successful attempts to reform our country’s immigration system.
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