Monday, October 26, 2020

Progressive Perspectives on Trump’s Supreme Court Nominee, Amy Coney Barrett

. . . and the Republican Effort
to Cement Minority Rule

In the weeks leading up to today's final vote by the U.S. Senate to confirm Judge Amy Coney Barrett to the Supreme Court, a number of progressive voices have weighed-in on what Barrett's controversial nomination and all-but-certain confirmation says about the influence of right-wing politics on the supposedly non-partisan judicial system and the implications of this for the country. Following are some of these voices.


Shortly after Ruth Bader Ginsburg exited this mortal plane (and before her body entered the earth), Mitch McConnell announced that his party would nominate and confirm her replacement to the Supreme Court. The Senate majority leader justified his hypocritical stance by citing the GOP’s obligation to the “American people” who “reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary.” Of course, the “American people” did not uniformly support Republicans in those elections, let alone for that reason. The people McConnell referenced are strong GOP partisans.

In the weeks since Ginsburg’s passing, Republicans have reiterated — through words and deeds – that they consider the appointment of Trump’s Supreme Court nominee, Amy Coney Barrett, to be a partisan goal of the highest importance. The GOP is so committed to her confirmation it has prioritized it over economic relief in the midst of a brutal recession. It’s so committed to it that Chuck Grassley and Lindsey Graham — 87 and 65 years old, respectively – have refused to take COVID-19 tests despite being exposed to infected individuals out of an apparent preference for risking the spread of a pandemic disease over risking positive tests that would force the GOP senators into quarantine, cost the GOP its majority on the Senate Judiciary Committee, and thus imperil Barrett’s nomination.

And yet: During the first day of her confirmation hearing, Barrett revealed that all of this was for naught. As the Supreme Court nominee explained to the Senate in her opening statement, her confirmation would have no predictable influence on public policy, nor would it advantage any particular ideological movement. If confirmed, all she would do is enforce existing law, nothing more, nothing less.

. . . Barrett is hardly unique in selling herself as a disinterested umpire. Justices both left and right have offered the Senate similar avowals of judicial modesty. But as a self-described “originalist,” Trump’s nominee puts exceptional weight on her supposedly disinterested adherence to the “original public meaning” of the U.S. Constitution. Yet “originalism” is less a humble method for settling constitutional disputes than a parlor trick for recasting the conservative movement’s unpopular agenda as the minimum demanded by constitutionality.

. . . In sum: Amy Coney Barrett’s originalism does not work as a method of safeguarding democracy against an activist, ideologically motivated judiciary. It does, however, function quite well as a means of obscuring a far-right movement’s efforts to impose its unpopular agenda by judicial fiat.

– Eric Levitz
Excerpted from “Amy Coney Barrett’s Judicial Neutrality
Is a Political Fiction

New York Magazine
October 12, 2020

Like the late Justice Scalia, for whom she clerked, Barrett is a self-described textualist and originalist; she interprets the US constitution based on its plain language and an attempted understanding of the intent and mindset of the original drafters. Barrett has also written that, in her view, it is appropriate and legitimate for judges to overturn precedents when they conflict with their personal interpretation of the constitution. Obedience to the exact original meaning of the constitution without current context is problematic. These laws were made by white, cisgender men who enslaved other human beings and never intended to include a vast sum of Americans – like women and people of color – in their quest for equal rights. When one person’s truth, defined by the way they see the world, impacts the lives and liberties of generations of diverse Americans, it has tremendous power.

– Lisa M O'Neill
Excerpted from "Amy Coney Barrett Went to My All-Girls High School.
I Hope She's Not Confirmed

The Guardian
October 12, 2020

There’s no doubt that what we’re facing is, increasingly, rule by a minority in this country. Basically, we live in a democracy that’s being plagued by minority rule – in essence, a very counter-democratic approach to governance. And here we are with the Supreme Court, which is, by its nature, a non-democratic institution. It’s not one where people have an equal say in terms of the appointments. The appointments are handled entirely by the Senate. The United States Senate is increasingly dominated by a majority that represents a minority of people in America.

. . . [S]ince Richard Nixon, there have been 15 nominations that have been confirmed to the United States Supreme Court for a Republican president and four for Democrats. So, when people say that the court needs to be packed, it really needs to be unpacked. . . . [I]n my lifetime it’s been Republican nomination after Republican nomination, in part due to fate and in part due to this power grab that these Republicans are right now engaged in. If they had not stolen the seat that became open in the beginning of 2016, and if they were not in the process of stealing this seat right now, the court wouldn’t be 6-3 with a majority Republican appointees. It could very well be the other way around.

. . . [W]e would have a 5-4 court but for these last four years of the way the Republicans have operated the United States Senate, in terms of Democratic appointees. But the reality is that this has been a longtime process. In essence, the Republicans have been engaged in blocking nominees of Democratic presidents for the last, basically, 30 years, whenever they could. In the 1996 election year for President Clinton, they only allowed, I think, 16 or 17 judges to be confirmed that entire year – no one for the Supreme Court, obviously; there was no vacancy. Democrats have not engaged in that kind of a blockade, a widespread blockade.

And so . . . when Senator Harry Reid changed the rules or had the rules changed for lower court nominees, that was out of intense frustration, but the reality is, is that the Republicans were never going to honor that filibuster rule when it came to the United States Supreme Court, as Mitch McConnell did not. And that has resulted in this situation in which there is no compromise. And, in fact, the rules of the game have basically been rigged.

And they’re being rigged this week. Senator Lindsey Graham is going to notice a vote on Amy Barrett’s nomination before even the answers are in from the written questions that will be submitted to her this week. So they’re basically willing to break every rule, bend every rule, change every rule, in order to pack the Supreme Court, because they’re so desperate to overturn these laws, laws that are widely respected, precedents that are widely respected by the American people.

And there’s no doubt that Amy Coney Barrett has been chosen precisely with the view that that’s exactly what she’ll do. She wasn’t chosen with the view that she’ll be fair. She was chosen because they believe very strongly that she will be unfair, that she will reverse these precedents.

The general feeling that the nomination of Judge Amy Coney Barrett to the Supreme Court is the capstone of a lavishly funded, long-term conservative plan to own the federal judiciary for the foreseeable future, and that Barrett's career is altogether a product of that project, has hung over the confirmation hearings like a foul mist. On Tuesday afternoon, Senator Sheldon Whitehouse gave that feeling form and substance, and charts, too.

Whitehouse used every one of his allotted 30 minutes to describe in detail the mechanisms by which conservative activists, fueled by the unlimited corporate money unleashed by Citizens United v. FEC, have fashioned to produce judicial nominees – and, ultimately, judges – on what in the last decade has looked very much like an ideological assembly line. Whitehouse showed in (occasionally excruciating) detail every aspect of the complicated network at the center of which is the Federalist Society, the intellectual wingnut-welfare chop-shop to which this president* outsourced the selection of federal judges.

He then tied all that research into the current full-court press across the federal courts to kill the Affordable Care Act, curb reproductive freedom, and reverse marriage equality, to say nothing of the dozens of cases regarding the money power and corporate control of government that are the real goals of most of the people funding what Whitehouse called, “the schemes.” Whitehouse even worked in his favorite statistic – that on those kind of cases, there have been 80 decisions handed down by the current court as 5-4 decision, and the business/conservative side of those cases, which almost always coincides with the interests of Republican donors, is 80-0.

Whitehouse has been a lone voice on what he calls “court capture” for a while now and, on Tuesday, given a half hour, he took his audience, both live and via television, and including the nominee herself, on a tour of the swamp. In doing so, he made a more compelling case against the illegitimacy of this nominating process than anyone else has. He showed the connections between the Federalist Society and the Judicial Crisis Network, and he showed the outsized influence of Leonard Leo and Carrie Severino, activists who have been the puppeteers behind many of these nominations. (Leo headed up the work at the Federalist Society and Severino ran the Judicial Crisis Network. When Leo quit, Severino moved over and replaced him.) Whitehouse turned the machine around and pulled out all the wires.

– Charles Pierce
Excerpted from “Sheldon Whitehouse Made the Case
That Amy Coney Barrett's Nomination Is a Bag Job

Esquire via Common Dreams
October 14, 2020

As the party is now constituted, the GOP’s chances of winning popular majorities in presidential elections – or representing most Americans in the Senate – will probably be even lower in the coming decade than they’ve been in the past few. Trump has relentlessly targeted the GOP on the priorities and resentments of non-college-educated, Christian, and rural white voters – groups whose numbers are either stagnant or shrinking.

Meanwhile, the key groups that favor Democrats – such as college-educated white voters, people of color, and adults who don’t identify with any religious tradition – are growing. Generational transition is accelerating all of these changes. Millennials were the most diverse generation in American history, but Generation Z is more diverse still. The unnamed generation younger than Gen Z is the first in American history in which people of color compose the majority, according to recent calculations by the Brookings Institution demographer William Frey.

In November, for the first time, the diverse generations born after 1981 – Millennials and Gen Zers – will equal the preponderantly white generations born before 1964 as a percentage of eligible voters, Frey calculates. By 2024, those younger generations will almost certainly exceed them as a share of actual voters, with the gap widening quickly after that. Figures provided to me by Frey on the racial composition of the millions of young people who have turned 18 since the 2016 election offer a preview of what’s coming: Young people of color make up about 70 percent of those newly eligible voters in California and Nevada, two-thirds in Texas, three-fifths in Arizona, and about 55 percent in Georgia, Florida, New York, and North Carolina.

It’s not hard to see a collision ahead between a conservative Supreme Court majority and the priorities of those younger Americans, including climate change, racial equity, voting rights, gun control, and protections for same-sex couples. “This focus on judgeships that [Senate Majority Leader Mitch] McConnell has put in place is really the only way” that conservatives can see of “guaranteeing their ideological priorities,” Alvin Tillery, the director of Northwestern University’s Center for the Study of Diversity and Democracy, told me.

– Ronald Brownstein
Excerpted from “What the Rush to Confirm
Amy Coney Barrett Is Really About

The Atlantic
October 15, 2020

A Barrett confirmation is a catastrophe. We don’t know a fraction about her. This is like getting married in three weeks, except it’s not getting married, it’s choosing somebody who’s going to govern us; [who] effectively, [will] decide the rules of our democracy, the rules governing our bodies, the rules governing our intimate relationships, for 50 years. And we don’t actually need to know that much to know that a 6-3 majority on the court is basically a bomb coming at what is left of our protections against corruption in politics, against corporate money, what is left of the Voting Rights Act. I mean, this is an absolute 5-, 10-alarm fire catastrophe.

Nominee Amy Coney Barrett is an originalist who excites evangelicals because of her expressed opposition to abortion rights and excites corporate leaders by her views on the limits of federal power, including her likely opposition to the Affordable Care Act. Senate Majority Leader Mitch McConnell is rushing her confirmation through. In a rare Sunday session this afternoon, after the Senate voted to limit debate on the nomination, McConnell noted: “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.” Tomorrow, the Senate is expected to confirm Barrett’s elevation to the Supreme Court.
Heather Cox Richardson
via Facebook
October 25, 2020

NEXT: The Sad Fate for Amy Comey Barrett

Related Off-site Links:
Corporatist Judge Barrett – Two More Senate Abstentions Needed to Stop Trump – Ralph Nader (CounterPunch, October 19, 2020).
Hate Group Leader: Amy Coney Barrett Is One Of Us – Jake Thomas (The Intellectualist, October 20, 2020).
Supreme Court Nominee Barrett Was Trustee of a School That Bans LGBTQ Students and FacultyDemocracy Now!) October 21, 2020).
We Were Clerks at the Supreme Court. Its Legitimacy Is Now in Question – Jamie Crooks and Samir Deger-Sen (The New York Times, October 25, 2020).
Amy Coney Barrett’s Judicial Philosophy Doesn’t Hold Up to Scrutiny – Angus King Jr. and Heather Cox Richardson (The Atlantic, October 25, 2020).
Republican Senator Susan Collins Says She Is Voting Against Amy Coney Barrett Confirmation to Be “Fair and Consistent” – Andrew O'Reilly (Fox News, October 25, 2020).

UPDATES: Amy Coney Barrett Confirmed To Supreme Court, Takes Constitutional Oath – Barbara Sprunt (NPR News, October 26, 2029).
Senate Confirms Barrett to Supreme Court, Cementing Its Conservative MajorityThe Washington Post (October 26, 2029).
Amy Coney Barrett Is Set to Transform America’s Supreme CourtThe Economist (October 26, 2029).
Amy Comey Barrett Will Complicate John Roberts’ Goal of Keeping the Supreme Court Out of Politics – Joan Biskupic (CNN News, October 26, 2029).
Incensed Over Amy Coney Barrett's Confirmation? Don't Mourn – Organize and Vote – Jules Lobel (Common Dreams, October 28, 2020).

See also the previous Wild Reed posts:
Charlie Stuart: Quote of the Day – September 28, 2020
Hold Them to Their Word

Image: President Donald Trump announces Judge Amy Coney Barrett as his Supreme Court nominee on September 18, 2020 in Washington, DC. (Photo: Oliver Douliery/AFP via Getty Images)

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