Judge Barry is back in the campaign headlines

Donald Trump put his sister, Third Circuit Judge Maryanne Trump Barry, squarely in the national media spotlight last year when he told interviewers she’d be a phenomenal Supreme Court justice.

Now that quote has Judge Barry back in the headlines, but this time it’s neither as positive nor as honest. Brent Johnson at NJ.com (among others) reports that fellow Republican candidate Ted Cruz today said:

Now, it’s good to stand with your sister. But Donald’s sister was a Bill Clinton-appointed federal appellate judge who is a radical pro-abortion extremist,” said Cruz, a Princeton University graduate. “Indeed, she wrote an opinion striking down restrictions on partial birth abortion, saying that restricting partial birth abortion was irrational. Even among liberal judges, that position is extreme, and Donald said, his extreme, abortion-supporting sister would make a terrific Supreme Court justice.

Judge Barry a radical extremist? Cruz isn’t the first Republican to float that one, but it’s still pure applesauce.

The case Cruz is bashing Barry for is Planned Parenthood of Central NJ v. Farmer, in which Judge Barry wrote the opinion striking down New Jersey’s late-term abortion ban.

Just one question. If Barry’s ruling striking down the New Jersey law was extreme even among liberal judges, what does Cruz make of the fact that the Third Circuit judge who concurred in the judgment in that case, opining that Supreme Court precedent “compels” the result Barry reached, was a fellow named Alito?


4 thoughts on “Judge Barry is back in the campaign headlines

  1. Joshua Levy

    Your rhetorical question is very misleading because it suggests that Judge Alito had the same reasons as Judge Barry. He did not.

    Alito began his opinion by rejecting what Judge Barry wrote as “unnecessary” and “obsolete.” He repeatedly emphasized that he was bound to follow Supreme Court precedent as a lower court judge; he never stated he agreed with that precedent. The plain implication is that Alito opposed the Supreme Court on this question, unlike Judge Barry.

    Cruz’s criticism of Judge Barry is apt. Your retort is without merit.

    1. Matthew Stiegler Post author

      Joshua, if you find phrases like “concurred in the judgment” and “the result Barry reached” confusing, this probably ain’t the blog for you. And if you think calling Judge Barry a radical extremist is “apt,” it definitely ain’t.

  2. Joshua Levy

    Cruz criticized Judge Barry for “saying that restricting partial birth abortion was irrational.” Alito obviously made a point of not saying that in his opinion. Cruz’s criticism was not based merely on the result but also on the reasoning behind that result. He found Judge Barry’s reasoning extreme (no surprise there, given the horror of slaughtering a near-term baby).

    Alito by contrast stated he was bound by Supreme Court precedent to concur in the judgment. He did not agree with the reasoning of the Supreme Court or Judge Barry.

    Alito and Barry were worlds apart in that case. To suggest otherwise is just playing games.

    1. Matthew Stiegler Post author

      Thank you for clarifying your view. So Barry is a radical extremist because she said restricting partial birth abortion was irrational, but Alito is not a radical extremist because he voted to strike down the law but didn’t say that. That still leaves me with a couple questions, though.

      Nixon appointee Leonard Garth, who joined Barry’s opinion — radical extremist? Anne Thompson, the DNJ judge who struck down the law — radical extremist? The five Supreme Court Justices in the Carhart majority — radical extremists? And at what point can I begin to wonder about Cruz’s claim that Barry’s position is extreme “[e]ven among liberal judges?”

      And, if you’re now abandoning the idea that Barry is a radical for striking down the same law Alito voted to strike down, and you’re hanging your hat on the idea that Barry’s opinion contained the word irrational, is that position defensible, either? Here’s what the opinion actually said:

      The Legislature’s argument that Roe and Casey are inapplicable to “partial-birth” abortion procedures because such procedures are infanticide rather than abortion is based on semantic machinations, irrational line-drawing, and an obvious attempt to inflame public opinion instead of logic or medical evidence. Positing an “unborn” versus “partially born” distinction, the Legislature would have us accept, and the public believe, that during a “partial-birth abortion” the fetus is in the process of being “born” at the time of its demise. It is not. A woman seeking an abortion is plainly not seeking to give birth.

      I don’t read that to mean that any attempt to restrict late-term abortion is irrational, as you appear to read it. What the opinion calls irrational is a party’s “argument,” namely that Roe and its progeny magically don’t apply. I tend to think that argument was irrational, too.

      Which makes me yet another radical extremist, I guess.

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