Amy Coney Barrett

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      Judges' politics absolutely sway how they decide cases. I crunched the numbers | Zalman Rothschild

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      Not much is certain about US politics these days. But if there’s one thing we know about Amy Coney Barrett’s confirmation hearings it is this: she will be asked about the role politics will play in her judicial decision making. If history is precedent, Judge Barrett will adamantly reject the supposition that her politics impact her adjudication. Starting with Chief Justice John Roberts – who, during his confirmation hearings, famously described the judicial role as one of a neutral baseball umpire “call[ing] balls and strikes” – it has become a commonplace for both liberal and conservative US supreme court nominees to declare that politics have no bearing on judicial decision making.In reality, there is no dearth of data measuring the extent to which judges decide cases based on political preferences. Consider the recent spate of cases concerning religious institutions which challenged coronavirus-related lockdown orders as violations of religious freedom. Freedom of religion and the future supreme court are of particular importance: the survival of many recent progressive initiatives – including the Affordable Care Act’s mandate requiring employers to provide health insurance that covers contraception, and laws prohibiting discriminatory treatment of LGBTQ people, to list just two – will rest in no small measure on courts’ interpretation and application of the “free exercise” religion clause of the first amendment of the constitution. Findings from a survey I conducted suggest that the outcome in some subsets of religious freedom cases track political affiliation to a staggering degree.I surveyed every merits-based federal court decision pertaining to a free exercise challenge to a stay-at-home order. The findings are staggering: 0% of Democrat-appointed judges have sided with a religious institution; the sizeable majority (64%) of Republican-appointed judges have sided with a religious institution; and 0% of Trump-appointed judges have ruled against religious institutions. In other words, all Trump-appointed judges have sided with religious institutions and all Democrat-appointed judges have sided with the state or city government. To be sure, my sample set – 81 judicial decisions – is not enormous. But the ability to predict to such a high degree the outcome of cases implicating the same free exercise question (in remarkably similar contexts) is illuminating. It suggests that Covid-19 has produced not only a partisan divide in the courts, but also that freedom of religion itself has become dramatically politicized.It was not long ago that religious freedom was considered a bipartisan issue, garnering near unanimous support on Capitol Hill. When the supreme court in 1990 drastically narrowed the meaning of free exercise, it was met with outrage from Republicans and Democrats alike. That outrage fueled the passage of the Religious Freedom Restoration Act (RFRA), which was designed to resurrect the religious freedom the court had eviscerated. RFRA passed the House unanimously and was approved in the Senate by a vote of 97-3.Such collaboration on religious freedom could not be imagined today. In the wake of Obergefell v Hodges, in which the supreme court legalized same-sex marriage in 2015, conservatives became alarmed at the prospect of America shifting sharply more “progressive” on cultural and social issues. Conservatives, especially rightwing Catholics and evangelical Protestants, rallied around the banner of religious freedom. They fought the Affordable Care Act’s contraception mandate and argued that the accommodations for churches in the Act were insufficient. Religious pharmacists also sought exemptions from state requirements that they dispense contraceptives.Yet by far the most charged battle over religious accommodation has concerned same-sex marriage. Conservatives worked hard at the state and federal levels to carve out religious exemptions through state statutes and proposed constitutional amendments. Liberals saw these exemptions as fronts to discriminate against LGBTQ individuals and women seeking contraception. As a result, Democrats in Congress are attempting to pass the Equality Act, a bill which would prohibit almost all discrimination based on sexual orientation and gender identity. A specific provision would pre-empt the possibility of RFRA being employed as a defense against a discrimination allegation. The Democratic congressman Jerry Nadler – who was a vocal advocate of RFRA two and a half decades ago – co-sponsored the new legislation.Religious freedom has undergone a cataclysmic change over the last decade. Whereas it was once seen as an American value on which Americans across the aisle could agree, now its polarization in society is mirrored in the judiciary. The root of the problem is inflexibility. Rather than take to heart the possibility that a cake shop owner truly feels inhibited by his religious beliefs to assist in the celebration of a gay marriage, advocates for gay rights – and the judges who agree with them – insist on being served by a religious baker, dismissing out of hand the legitimacy of his religious objections. Meanwhile, some religious employers demand to be exempted from merely having to notify the government that they will not provide conception healthcare under their insurance plans, claiming that even doing that violates their religious sensibilities. Neither side seems willing to give an inch, thus further entrenching a polarization that has now infected the judiciary to a staggering degree.To “save th[e] honorable court[s],” and the country, we must learn to listen to, and take to heart, the positions of others. What we need in a polarized country is not the idle fantasy that politics can or will never play a role in adjudication – it always will – but to strive for a world in which we believe in the power of encounter, of giving and listening to the other side, and of being open to compromise. More

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      Amy Coney Barrett supreme court hearing sets stage for partisan clash

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      Judge Amy Coney Barrett will appear on Capitol Hill for the opening of her supreme court confirmation hearings on Monday, setting the stage for an extraordinary partisan clash three weeks before election day.Four days of hearings are scheduled before the Senate judiciary committee, beginning with opening statements on Monday, followed by two days of questioning. Thursday, the Senate panel will hear from outside experts.Republicans are moving ahead with the nomination over the strident objections of Democrats, who have argued that the winner of the November election should nominate the next justice to the supreme court as was the case in 2016, after the death of Antonin Scalia.Donald Trump thrilled conservatives and anti-abortion activists when he nominated Barrett last month to fill the vacancy left by the death of justice Ruth Bader Ginsburg, a liberal icon whose legacy was championing women’s rights.Upon Scalia’s death in February 2016, the majority leader, Mitch McConnell, took the unprecedented step of refusing to hold a hearing for President Barack Obama’s nominee, Judge Merrick Garland, explaining that it was too close to a presidential election.McConnell has already lost the support of Senator Susan Collins, a Republican from Maine locked in a tight re-election battle, who said she would vote against Barrett on the floor if the vote was held before the election. Alaska senator Lisa Murkowski, a Republican, also said she believed the Senate should wait until after the election to move forward with the nomination.But Republicans are confident that they will have the votes to rush Barrett’s nomination through before the election.Complicating this, however, is a coronavirus outbreak at the White House, which infected the president and has spread to senior government officials and Republican lawmakers.Two Republican senators on the committee – Mike Lee of Utah and Thom Tillis of North Carolina – tested positive for the coronavirus after attending a Rose Garden ceremony for Barrett on 26 September. Two other members – Ben Sasse of Nebraska and Ted Cruz of Texas – are self-quarantining after possible exposure to the virus but have tested negative. All plan to attend the hearing in person, though the committee chairman, Lindsey Graham, has said members would be allowed to participate remotely.If any more members fall ill or are unable to participate in person, the math could be complicated for McConnell. But for now, Republicans are determined to press forward. More

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      US election 2020: who is supreme court nominee Amy Coney Barrett?

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      Today is the start of the confirmation process for Amy Coney Barrett, a deeply conservative judge who is Donald Trump’s pick for supreme court judge. Guardian US investigative journalist Stephanie Kirchgaessner has been looking at her career and personal life, including membership to the secretive Catholic group People of Praise, and discusses what her appointment would mean for the US

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      If Donald Trump has his way then he will use the few weeks remaining before Americans go to the polls on 3 November to install his choice as the ninth supreme court justice. If successful, it would mean replacing Ruth Bader Ginsburg, a ferocious campaigner for women’s rights whose work turned her into a liberal icon, with Amy Coney Barrett, a deeply conservative judge whose values push in the opposite direction. The move would shift the balance so starkly in America’s highest court that some fear it could lead to key rulings protecting civil rights being overturned – and possibly hamper the ability of Democrats to change laws for decades to come. The Guardian US investigative journalist Stephanie Kirchgaessner talks to Anushka Asthana about Barrett’s career and personal life – including membership of a secretive Catholic “covenant community” called People of Praise that is accused of adhering to a “highly authoritarian” structure. She discusses Barrett’s views on abortion and the Affordable Care Act, the Obama-era law that extended health insurance to millions of Americans. If she is confirmed before the election, one of Barrett’s first cases could determine the fate of that act. More

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      Holy war: Republicans eager to focus Amy Coney Barrett hearings on religion

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      When Donald Trump’s latest supreme court nominee, Amy Coney Barrett, arrives before the Senate judiciary committee for her confirmation hearings on Monday, Democrats will be out to raise an alarm that Barrett could help strike down the Affordable Care Act in the very first case she hears.But in the weeks leading up to the hearings, Republicans have been out for something else entirely: a holy war.The future of the supreme court hinges on the Barrett hearings. But the hearings will be backgrounded by a political fight over religion that is potentially as important as the question of whether Barrett replaces Ruth Bader Ginsburg, the late liberal justice, on the court.If Republicans can make it look like Democrats are attacking Barrett, a conservative Catholic, for her religious views, they believe, that could stir enough political anger to rescue a couple of tight Senate races in the elections on 3 November – and potentially save the teetering Republican Senate majority.Democrats hope to defeat the Barrett nomination on the merits.But they also hope to take control of the Senate next month, claim the White House, and then pass a bulwark of laws on key issues – healthcare, reproductive rights, marriage equality, voting rights, the climate emergency – to withstand what could be decades of tendentious rulings by a supreme court with as many as three Trump-appointed justices on it.The current Senate judiciary committee chair, Lindsey Graham, who happens to be among the most endangered Republican incumbents, explained the Republican strategy last month on Fox News, saying Democratic protests over credible sexual assault allegations against Trump’s supreme court nominee Brett Kavanaugh helped Republicans in the 2018 midterm elections.“Kavanaugh really did help Republicans pick up Senate seats because they went too far,” Graham said.In a transparent attempt to whip up a comparable spectacle around the Barrett nomination, Senate Republicans have produced an ominous video featuring tense footage from the Kavanaugh hearings and accusing Democrats of a “radical power plot” to attack Barrett over her religious beliefs.But prominent Democrats have urged a minimum of pageantry during the Barrett hearings and a focus on Barrett’s views on the healthcare law, abortion, same-sex marriage and other issues.“It is going to be really important to not give Lindsey Graham and the rest of the Republicans a moment of righteous vindication over a circus-like atmosphere,” the former Democratic senator Claire McCaskill said on a popular politics podcast this week.“So I just think this is one of those times when some of our most passionate supporters that are so angry on behalf of Ruth Bader Ginsburg, that they’ve got to realize that there is a better way than flooding the halls with women in handmaid costumes.”To protest against the Barrett nomination earlier this month, activists stood outside the supreme court wearing red robes and white bonnets, recognizable from the TV series based on the Margaret Atwood novel of female subjugation, The Handmaid’s Tale.Democrats should focus on the threat posed to healthcare by Barrett, who in 2017 published a critique of Chief Justice John Roberts’ 2012 ruling to uphold the Affordable Care Act, said Ben Jealous, president of the progressive People for the American Way group. On 10 November, just one week after the election, the supreme court is scheduled to hear a separate case that could vacate the law.“The confirmation hearings have to be all about what the nomination is about: destroying healthcare for millions of Americans,” Jealous said. “Anybody who wants to make this about a nominee’s personality, or even the life they’ve lived so far, is missing the point.”Democrats on the committee acknowledge they do not currently have the votes to stop the nomination from moving forward, and Senator Cory Booker said last week that procedural stalling measures would not work – because the Senate majority leader, Mitch McConnell, could merely change the rules to keep the nomination on track.Progressives must not write off the Ginsburg seat as lost, however, said Neil Sroka of the progressive Democracy for America group. More

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      Amy Coney Barrett: quick confirmation under threat as three senators infected

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      Senate Republicans are facing a shrinking window of time before the November 3 election to confirm Donald Trump’s supreme court nominee Amy Coney Barrett, following the news that at least three Republican senators have tested positive for the coronavirus and more are quarantining after likely exposure.Mitch McConnell, the Senate majority leader and Republican from Kentucky, on Saturday morning said he would seek consent from Democrats to cancel any action on the main floor of the Senate for the next two weeks, until 19 October.But the Senate judiciary committee, which must vote on the nomination first, will still convene as planned on 12 October to begin the confirmation hearing process for Barrett, he said. While senators have attended recent hearings remotely, Democrats have said there is bipartisan opposition for allowing them to do so for something as high profile as a supreme court nomination that could determine the ideological tilt of the court.In a letter on Saturday, top Democrats on the committee said that to “proceed at this juncture with a hearing to consider Judge Barrett’s nomination to the supreme court threatens the health and safety of all those who are called upon to do the work of this body”. Many of the senators on the committee are older and have other risk factors for Covid-19.Republicans are trying to advance Barrett’s nomination as quickly as possible to replace the court’s progressive champion Ruth Bader Ginsburg, who died last month.This despite refusing to consider Barack Obama’s pick for a supreme court justice in an election year in 2016.Republican leaders are concerned that if they lose their majority in the Senate in the November election, and if Trump loses the White House, it will be harder to confirm a conservative nominee during the lame-duck session before former vice president Joe Biden could enter office in January 2021.Utah senator Mike Lee and North Carolina senator Thom Tillis, both of whom sit on the judiciary panel, tested positive for Covid-19 on Friday and will quarantine for 10 days, until the committee meeting.Both had attended an event at the White House announcing Barrett’s nomination last Saturday. Multiple attendees of the event, including Trump, his wife Melania, former White House counsel Kellyanne Conway and Chris Christie, the former New Jersey governor and a Trump adviser, have now tested positive.Without Lee and Tillis’s votes, Barrett’s committee approval could be in jeopardy. Democrats could refuse to attend the meeting, denying Republicans the total number of lawmakers required to send the nomination to the full floor.A third Republican senator on the committee, Iowa’s Chuck Grassley, who is 87, was also at a hearing last week with Lee. But Grassley’s office argues his doctors have not recommended he be tested and don’t believe he has been in close contact with anyone suspected of having or confirmed to have the coronavirus. At the hearings, senators sit far apart, although neither Grassley nor Lee wore a mask when speaking.McConnell said the judiciary committee has been meeting since May with some senators present and some participating virtually.“Certainly all Republican members of the committee will participate in these important hearings,” he said, of the supreme court confirmation process, which, if completed, would tilt the court dramatically to the right.Wisconsin Republican senator Ron Johnson, who is not on the committee, has also contracted the coronavirus. He did not attend the White House event last Saturday because he was already isolating following a different potential exposure.Senate Republicans meet several times a week for a caucus lunch, where they sit in a large room and remove their masks. All three of the senators who have tested positive were at those lunches last week, according to CNN.If at least three Republican senators are too ill to appear in person to confirm Barrett, the party leadership may not have enough votes.Republicans have a 53-47 majority in the Senate, and Mike Pence, the vice-president, could break a tie. Two Republicans, Maine’s Susan Collins and Alaska’s Lisa Murkowski, have said they will not confirm a nominee before the election. More