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      Amy Coney Barrett dodges abortion, healthcare and election law questions

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      On the second day of hearings before the Senate judiciary committee, Democrats pressed supreme court nominee Amy Coney Barrett on healthcare, election law and abortion rights – and met with little success.Donald Trump’s third nominee for the highest court dodged questions on how she might rule on a challenge to the Affordable Care Act (ACA); if she would recuse herself from any lawsuit about the presidential election; and whether she would vote to overturn the landmark 1973 ruling Roe v Wade, which made abortion legal.In an exchange with the Democratic Delaware senator Chris Coons, Barrett said: “I am not here on a mission to destroy the Affordable Care Act. I’m just here to apply the law and adhere to the rule of law.”Multiple Democratic senators pressed Barrett on whether she would recuse herself from a possible case about the outcome of the 2020 election. The Connecticut senator Richard Blumenthal said he was “disappointed” in Barrett’s refusal to commit to a position. He added: “It would be a dagger at the heart of the court and our democracy if this election is decided by the court rather than the American voters.”Barrett argued that she was not a pundit, citing remarks by Justice Elena Kagan and the late Ruth Bader Ginsburg in saying that outside of reviewing a specific case, it was not her place to offer a position.“No hints, no previews, no forecasts,” Barrett quoted Ginsburg as saying, after the California senator Dianne Feinstein questioned her about how she might rule in any case challenging the legality of abortion.Barrett is a devout Catholic whose previous statements and affiliations have been closely examined by Democrats and the media. Trump has said overturning Roe v Wade would be “possible” with Barrett on the court.When she was asked about a newspaper ad she signed criticizing Roe v Wade, first reported by the Guardian, Barrett said she had “no recollection” of it and stressed she had nothing to hide.At another point in Tuesday’s hearing, Barrett cited Kagan in saying she would not give “a thumbs up or thumbs down” on any hypothetical ruling.Most of the questioning from Democrats centered on the ACA, known popularly as Obamacare, and how a ruling by the high court overturning the law would take away healthcare from millions of Americans. A hearing is due a week after election day. Democrats see protecting the ACA as a productive electoral tactic, having focused on it in the 2018 midterms, when they took back the House.Barrett said she was not hostile to the ACA, or indeed abortion or gay rights, another area worrying progressives as the court seems set to tilt to a 6-3 conservative majority. Barrett said she was simply focused on upholding the law.“I am not hostile to the ACA,” Barrett said. “I apply the law, I follow the law. You make the policy.”Asked about gay rights, Barrett said: “I would not discriminate on the basis of sexual preference.”Her choice of words conspicuously suggested that to her, sexuality is a choice. Amid scrutiny of Barrett’s past, meanwhile, it has been reported that she was a trustee at a school whose handbook included stated opposition to same-sex marriageRepublican senators also questioned Barrett on healthcare, the Iowa senator Chuck Grassley asking if she had been asked during the nomination process if she supported overturning the ACA.“Absolutely not,” Barrett said. “I was never asked and if I had been that would’ve been a short conversation.”Barrett said it was “just not true” that she wanted to strike down protections for Americans with pre-existing conditions.Asked if she thought same-sex marriage should be a crime, she said the ruling in Obergefell v Hodges, in 2015, made it the law of the land.Asked if she would recuse herself on any lawsuit over the outcome of the 2020 election, however, Barrett declined to commit. Instead she said: “I have made no commitment to anyone – not in the Senate, not in the White House – on how I would decide a case.”It was the first of two sessions of questioning, after which outside witnesses will be called. Tuesday’s opening exchanges produced a mere continuation of Barrett’s seemingly serene journey into Ginsburg’s seat.Trump and Republicans are eager to move quickly. The president has said he wants to see Barrett confirmed before election day, which is in three weeks’ time, suggesting that this is in part because he hopes she will rule in his favor if a challenge to the election result reaches the highest court.In a conference call with reporters, Senate Democrats fretted about their chances of stopping Barrett.“The fact of the matter is this nominee is extreme,” the Connecticut senator Richard Blumenthal said. “Her views are outliers.“I think we are going to demonstrate today and tomorrow what’s at stake and how extreme and far right this nominee is.”He conceded that Democrats had no “magic” tool to block Barrett. They would, he said, use every procedural tool they have but “the politics are difficult here. Republicans are practically boasting that they have the votes.”Blumenthal said Democrats were “ultimately making our case to the American people”, to make them realize the impact Barrett’s nomination was likely to have. More

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      in Elections

      US election 2020: why are so many Americans being denied a vote? – podcast

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      Millions of American voters will be unable to cast their ballot in this year’s presidential election and those affected will be disproportionately first-time voters and from minority groups, reports Sam Levine

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      As the November election approaches, Donald Trump is continuing to make stark claims about voter fraud, particularly focused on postal voting. Despite a lack of evidence, many are interpreting the president’s claims as a prelude to his challenging the result should he be defeated. Fears of fraud are also being used by many states to place more hurdles in the way of voters trying to cast their ballots. The Guardian’s Sam Levine tells Anushka Asthana about the bureaucratic steps required to cast a legal vote in some states and how research shows that they mean the discounting of votes from disproportionately younger and minority voters. He also describes how millions of former prisoners are being denied votes decades after release due to bureaucratic errors or minuscule unpaid fines. He met Alfonso Tucker, a resident in Alabama, who was struck from the register over a $4 fine and whose son of the same name was also prevented from voting. Meanwhile, there are growing fears of intimidation at the polls, not least following Trump’s performance at the presidential debate in which he failed to denounce white supremacists, telling the rightwing Proud Boys group to “stand back and stand by”. More

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      in US Politics

      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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      in US Politics

      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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      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