The effort to smear Judge Barry as a radical extremist is still alive, and still wrong

Third Circuit Judge Maryanne Trump Barry is a moderate-conservative Republican centrist. After a decade as a federal prosecutor, she was nominated to the district court by President Reagan and confirmed by voice vote by a Republican-controlled Senate. Chief Justice Rehnquist appointed her to chair a Judicial Conference committee. The New York Times reports that she was nominated to the Third Circuit by President Clinton thus:

In 1999, Mr. Clinton was having a hard time getting his appointments through the Senate, and he asked Senator Robert G. Torricelli of New Jersey to find a set of judges who could be confirmed. To balance out the Democratic appointments, Mr. Torricelli chose Ms. Barry.

Again she was confirmed, again by a Republican-controlled Senate, again by voice vote.

But recently Judge Barry has become a talking point in the Republican presidential campaign debate, and conservative partisans brand her a radical extremist. It is a preposterous claim.

Republican Presidential candidate Ted Cruz has been trying for a while now to score a point against fellow candidate Donald Trump by slamming Judge Barry, who is Trump’s sister. I’ve discussed it here and here, and I was quoted about it on here. Trump revived the controversy at Thursday’s Republican debate, noting that Cruz has been criticizing Barry and suggesting “maybe we should get a little bit of an apology from Ted.” (Trump mangled the facts, claiming that Barry had been criticized for “signing a certain bill” and asserting that Justice Samuel Alito “signed that bill.” In reality, Cruz criticized Barry for her opinion in the New Jersey abortion-case Planned Parenthood v. Farmer, and Alito concurred in the judgment.)

After the debate, prominent conservative commentators have rushed to join the attack on Judge Barry. First, Ramesh Ponnuru (who describes Cruz as “[a]n old friend of mine”) wrote on that “Judge Barry wrote an expansive opinion attacking and sneering at” New Jersey’s abortion-ban law, “and laying out an argument that would logically justify a constitutional right to infanticide.”

Then, former Akin Gump partner Paul Mirengoff wrote on that Judge Barry’s “position on abortion” in the New Jersey opinion was “odious.” “Cruz is right about Trump’s sister,” he claimed: “The woman Trump holds out as a model jurist is obscenely pro-abortion.” (Other similar right-wing Barry-bashing here, here, and here. [Update: and here, by him.])

[UPDATE2: Almost a year later, Mirengoff admitted that he was wrong to call Barry’s opinion “obscenely pro-abortion,” admitting he “went too far,” and hyperlinking to this post.]

Here is the reality about Judge Barry’s opinion in Farmer:

  • Judge Barry’s opinion for the court was joined in full by Judge Leonard Garth, a Nixon appointee whom I’ve never before heard accused of being an obscenely pro-abortion radical extremist.
  • Then-Judge Alito concurred in the judgment, agreeing that Supreme Court precedent compelled the result Judge Barry reached.
  • New Jersey’s attorney general declined to defend the law. The district judge judge reached the same result the Third Circuit did. The Third Circuit did not grant rehearing en banc, and the Supreme Court did not grant certiorari.
  • Ponnuro accuses Judge Barry of writing an “expansive” opinion, but in fact her opinion was limited. The plaintiffs argued that the NJ law violated equal protection and did not serve a legitimate state interest, but the opinion declined to reach either question. The district court held that the law created an undue burden on women’s constitutional rights by offering no health exception and an inadequate life-of-the-mother exception; the opinion passed up the chance to endorse either of these points, too. The opinion even expressly refused to address whether a clearly drafted prohibition of intact-dilation-and-extraction abortion would be constitutional. (How Ponnuro squares this express reservation with his claim that Judge Barry’s opinion “would logically justify a constitutional right to infanticide,” I have no idea.)
  • Judge Barry’s opinion began by frankly acknowledging “deeply held convictions by men and women of good will, convictions which we recognize and respect.” It stated, “It is not for us to decide who is right and who is wrong as a matter of conviction or philosophy.”  It acknowledged that “there are unquestionably numerous ethical, philosophical, and moral issues surrounding abortion.”
  • The opinion went into graphic detail describing how the fetus dies during various abortion procedures, repeatedly noting that during the procedure the fetus may still have a heartbeat. It said in passing, “whatever one may think of abortion in general and ‘partial birth abortion’ in particular.” It speculated that the purpose of the NJ law was “to dramatize to the public the ugly nature of abortions of all types.” By contrast, the most favorable thing the opinion says about abortions is that Supreme Court precedent establishes a constitutional right to have one. I don’t see a single pro-abortion or pro-choice sentence in the opinion.
  • It is impossible for me to tell from the opinion whether Judge Barry would vote for a late-term abortion ban if she were a legislator. To the extent the opinion offers any clues, I’d guess that Legislator Barry would vote in favor of such a ban if it were competently drafted.

Judge Barry’s Farmer opinion is aggressively limited. It treats pro-life policy views with respect but decides the appeal based on logic and precedent, not policy. The opinion is competent, professional, and utterly mainstream. If this opinion makes Judge Barry a radical extremist, then so is 98 percent of the federal judiciary.

One final point.

Back in 1998, when Judge Barry was still a district judge, she presided over Greenhut v. Hand, a case in which a pro-life volunteer at a pregnancy-services center sued a defendant who had threatened her. The pro-life volunteer sued under the Freedom of Access to Clinic Entrances Act, a law passed in response to growing violence against abortion providers. The opinion noted that this case was the first time that FACE was invoked to penalize threats against a pro-life volunteer. The defendant argued that FACE did not apply because the act protected only persons providing reproductive health services and the pro-life volunteer wasn’t.

Judge Barry emphatically rejected the defendant’s arguments and granted summary judgment in favor of the pro-life protester. The opinion has not one hint of disapproval of the plaintiff’s pro-life views, not a whisper of approval for the defendant’s pro-choice views.

Obscenely pro-abortion? Radical extremist? Nonsense.

1 thought on “The effort to smear Judge Barry as a radical extremist is still alive, and still wrong

  1. Dave

    Mr. Stiegler: I agree with your opinion that 98% of the federal judiciary are radical extremists.

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