Law

Subterms

    More stories

    • 138 Shares179 Views

      in Elections

      Could Trump really settle US election result in the supreme court?

      by

      Given Donald Trump’s lifelong predilection for tying up opponents in the courts, and his long-stated threat to do the same with an election result that threatened to go against him, his call to have the 2020 election settled in the supreme court is not a surprise.
      So can he do it?
      Trump may, with this in mind, have filled the supreme court with conservative appointees, but things aren’t so straightforward. The supreme court is the final court of appeal in the US and has discretion over which cases it should hear, largely relating to challenges to cases heard in lower courts on points of federal law and the constitution.
      So a lot of action will happen initially at state-level courts – the election has prompted a spate of new cases in the hotly contested battleground state of Pennsylvania, including two due to be heard later on Wednesday.
      What has made the current election landscape more of a minefield is the fact the coronavirus pandemic has led states to look for ways to make voting safer, including expanding absentee ballots, which has opened states up to challenges in the courts over issues such as proposed extensions to the period in which late mail-in votes are counted.
      It is important to remember that election challenges in state courts are nothing new, sometimes without merit, and often have little impact in the end. However, one important exception to that was the 2000 election where a series of legal challenges over faulty voting procedures in Florida handed the election to George W Bush.
      What’s the thrust of Trump’s tactic?
      With more than 40 pre-election cases by Republicans, Trump’s strategy is to argue that any measure to make voting easier and safer in the midst of a pandemic is unconstitutional and open to fraud, a framing aimed at the supreme court.
      A second argument that has been deployed several times is that many of the measures to ensure voting is easy have been made by state officials – like governors – rather than state legislatures, opening a path, say conservatives, for a constitutional challenge.

      How could this work?
      The most common scenario is for lawyers to challenge the way an election was conducted locally and seek to have votes discarded. In the key state of Pennsylvania, conservative groups have already ramped up cases to ensure late mail-in ballots are not counted, with two cases due to be heard on Wednesday.
      However, Pennsylvania requires an unusually high burden of proof for challenging elections, including written affidavits detailing wrongdoing.
      Pennsylvania is already on the supreme court’s radar in this respect. Republicans in the state have already appealed against a Pennsylvania supreme court decision ordering state election officials to accept mail-in ballots that arrive up to three days after the election, relying on an interpretation of the state’s own constitution.
      The US supreme court deferred hearing this case before the election but in a case that it did rule on, the court sided with a Republican challenge saying the state could not count late mail in ballots in Wisconsin. The supreme court chief justice John Roberts made clear, however, that “different bodies of law and different precedents” meant the court did not consider the situation in Pennsylvania and Wisconsin as the same.
      Isn’t that good news for Democrats?
      It’s difficult to know. The Wisconsin decision was delivered before Trump’s third pick for the supreme court, Amy Coney Barrett, formally joined the bench last week, giving conservatives a 6-3 majority.
      Trump’s hope, as he has made very clear, is that this would help in the event he challenged the election result, but it is also unclear how Barrett would respond given Trump’s comments. And she could recuse herself from hearing any election-related cases because of a perceived conflict.
      Where else could we see challenges?
      Michigan, if it is close, is an outlier in that it has no formally laid-out system for a challenge, although any recount is automatically triggered by a margin of less than 2,000 votes.
      North Carolina, for instance, also has a challenge to a late voting extension before the courts. It all becomes something of moot point should Biden secure enough of a lead in the electoral college.
      What’s the worst-case scenario?
      The closer the outcome in the electoral college, the more messy things become, with the memory of Florida in 2000 looming above everything. The closest of results led to 35 messy days of legal challenges and laborious hand recounts, which gave the election to George W Bush after the state was originally called by news organisations for the Democratic challenger Al Gore.
      Bush took 271 of the 538 electoral votes, winning Florida by fewer than 600 votes, after a recount was halted by the supreme court, making Bush the first Republican president since 1888 to win despite losing the popular vote. More

    • 150 Shares199 Views

      in US Politics

      Wisconsin can't count mail-in ballots received after election day, supreme court rules

      by

      The US supreme court has sided with Republicans to prevent Wisconsin from counting mail-in ballots that are received after election day.
      In a 5-3 ruling, the justices on Monday refused to reinstate a lower court order that called for mailed ballots to be counted if they are received up to six days after the 3 November election. A federal appeals court had already put that order on hold.
      The ruling awards a victory for Republicans in their crusade against expanding voting rights and access. It also came just moments before the Republican-controlled Senate voted to confirm Amy Coney Barrett, a victory for the right that locks in a conservative majority on the nation’s highest court for years to come.
      The three liberal justices dissented. John Roberts, the chief justice, last week joined the liberals to preserve a Pennsylvania state court order extending the absentee ballot deadline but voted the other way in the Wisconsin case, which has moved through federal courts.
      “Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin,” Roberts wrote.
      “As the Covid pandemic rages, the court has failed to adequately protect the nation’s voters,” Justice Elena Kagan wrote in a dissent that noted the state allowed the six-day extension for primary voting in April and that roughly 80,000 ballots were received after the day of the primary election.
      Democrats argued that the flood of absentee ballots and other challenges posed by the coronavirus pandemic makes it necessary to extend the period in which ballots can be counted. Wisconsin, a swing state, is also one of the nation’s hotspots for Covid-19, with hospitals treating a record high number of patients with the disease. The supreme court allowed a similar extension to go into effect for Wisconsin’s April election, a decision that led to nearly 80,000 additional votes getting counted in the contest (Trump carried the state in 2016 by just under 23,000 votes).
      Republicans opposed the extension, saying that voters have plenty of opportunities to cast their ballots by the close of polls on election day and that the rules should not be changed so close to the election.
      The justices often say nothing, or very little, about the reasons for their votes in these emergency cases, but on Monday, four justices wrote opinions totaling 35 pages to lay out their competing rationales.
      Justice Neil Gorsuch acknowledged the complications the pandemic adds to voting, but defended the court’s action.
      “No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted,” Gorsuch wrote.
      Justice Brett Kavanaugh, meanwhile, echoed Trump in writing that states should announce results on election night.
      States “want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter”, he wrote. “Moreover, particularly in a presidential election, counting all the votes quickly can help the state promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner.” He also wrote states had an interest in avoiding “the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”
      That comment earned a sharp rebuke from Kagan, who said “there are no results to ‘flip’ until all valid votes are counted”.
      She noted that the bigger threat to election “integrity” was valid votes going uncounted. “nothing could be more ‘suspicio[us]’ or “improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process,” she wrote.
      Kavanaugh cited Vermont as an example of a state that “decided not to make changes to their ordinary election rules” due to the pandemic, even though, in fact, the state authorized the secretary of state to automatically mail a ballot to all registered voters this year, in order to make it easier for everyone to vote absentee.
      In a significant footnote, Kavanaugh also wrote that state courts do not have a “blank check” to step in on state laws governing federal elections, endorsing conservative justices’ rationale in deciding the election in 2000 between George W Bush and Al Gore.
      Two decades ago, in Bush v Gore, the supreme court decided – effectively – that Bush would be the US president after settling a recount dispute in the swing state of Florida. Back then, three conservative justices – William Rehnquist, Antonin Scalia and Clarence Thomas – said that the Florida supreme court “impermissibly distorted” the state’s election code by ordering a recount of a close election, during which voting machines were found to have issues correctly counting the votes.
      In Monday’s ruling, Kavanaugh and Gorsuch – both Trump appointees – endorsed that view expressed in the Bush v Gore case, a move that could foretell how the court, which now has a 6-3 conservative majority, would rule if the results of the presidential election are contested.
      Justices Thomas, Samuel Alito, Gorsuch, and Kavanaugh recently voted to block a deadline extension to count ballots in Pennsylvania. However, with only eight justice on the court at the time, and the conservative justice John Roberts siding with liberals – at tied court ultimately upheld the deadline extension.
      But Pennsylvania Republicans, sensing an ally in Barrett, have asked for a re-do. In making their case, they are arguing that the state supreme court overstepped by ordering officials to count mail-in ballots that are sent by election day but arrive up to three days later.
      Agencies contributed to this report More

    • 125 Shares119 Views

      in US Politics

      Senate judiciary committee votes to advance Amy Coney Barrett nomination

      by

      Republicans on the Senate judiciary committee voted unilaterally Thursday to advance Amy Coney Barrett’s supreme court nomination to the full Senate despite Democrats’ refusal to sit in the hearing room for what they called a naked “power grab”.
      Democratic senators had announced the night before that they would not participate in any move to install Donald Trump’s third supreme court nominee even as tens of millions of Americans vote in a presidential election less than two weeks away.
      No supreme court nominee has ever been installed so close to a presidential election, and just four years ago the Senate majority leader, Mitch McConnell, and Senator Lindsey Graham, who now chairs the judiciary committee, said that installing such a nominee in an election year would be a shameful defiance of the will of voters.
      Those qualms were nowhere in evidence on Thursday as Republicans, who hold a majority in the Senate and thus on every committee, met with themselves to send Barrett toward a seat vacated with the death last month of liberal justice Ruth Bader Ginsburg.
      “My Democratic Senate colleagues and I boycotted the supreme court nominee committee vote today,” Democratic vice-presidential nominee and California senator Kamala Harris tweeted. “Let’s be clear: this nomination process is a sham and shows how Republicans will stop at nothing to strip health care from millions of Americans with pre-existing conditions.”
      Senators plan to convene a rare weekend session for procedural actions ahead of a final confirmation vote expected Monday. McConnell has said he has the votes to confirm Barrett, whose arrival on the court would create an unassailable 6-3 conservative majority.
      “Barrett deserves to be on the supreme court and she will be confirmed,” said Graham. Democrats, he said, “made a choice not to participate”.
      Democratic senators on the committee spoke outside the Capitol later Thursday morning about what they said was a broken process demanded by a corrupt president and engineered by a Republican majority that had lost its way in a desperate attempt to hold onto power despite dwindling popular support.
      “We are descending into the low ground, the quicksand of a power grab, that will go down in history as one of the darker days of this institution,” Senator Cory Booker of New Jersey said.
      In their committee room seats, Democrats arranged for posters to be placed of constituents they said had been helped by the Affordable Care Act, also known as Obamacare, which they fear Barrett, 48, could help throw out in a case that begins oral arguments next month, amid the coronavirus pandemic.
      Barrett is a conservative whose anti-abortion views and ties to groups that have publicly opposed same-sex marriage raised alarm among progressives, as well as her unwillingness to comment on the legality of voter intimidation or to promise to recuse herself from any case arising from the coming election.

      Nan Aron, president of the progressive Alliance for Justice group, said Republicans had conducted “theater”, as opposed to a real hearing.
      “Senate Republicans believe ‘advice and consent’ means performing the theatre of a hearing without scrutinizing the nominee in the least,” Aron said in a statement. “Amy Coney Barrett refused to answer the most fundamental questions about our democracy and human rights. Today’s vote shows Senate Republicans are already confident that she will advance their agenda.”
      But Jeanne Mancini, president of the anti-abortion group March for Life, praised Barrett and compared her favorably to Ginsburg.
      “Like her predecessor, Amy Coney Barrett is a trailblazer who is a role model for Americans,” Mancini said in a statement. “Her immense respect for the law and constitution will allow her to fairly apply the law and consider the rights of everyone who comes before her, including the unborn.”
      Trump is on track to becoming the first president in decades to appoint three supreme court justices in just one term, and he has shattered records for the speed with which he has remade the judiciary, installing more than 200 federal judges with McConnell’s help.
      Previous Trump nominees Neil Gorsuch and Brett Kavanaugh joined the supreme court in 2017 and 2018, respectively.
      In her confirmation hearings, Barrett declined to say how she would rule in potential future challenges to the landmark Roe v Wade decision in 1973 that made abortion legal in the US, or other landmark reproductive rights cases.
      But progressives and mainstream legal analysts said her views on those and other issues appeared to be extreme, and they expressed concern that she could participate in the dismantling of environmental regulations, voting rights law, anti-discrimination protections, protections for immigrants and other essential safeguards.
      “It is an irresponsible and undemocratic abuse of power to see the Republican Senate leadership on the judiciary committee rush to fill Justice Ruth Ginsburg’s seat in the middle of an election and instead of providing coronavirus relief for the millions of families harmed by the pandemic and the economic crisis,” said Tina Tchen, president of the anti-sexual harassment group Time’s Up Now.
      “This sham process is preventing the American public from understanding how her extreme views are out of step with our constitutional values and principles.” More

    • 175 Shares109 Views

      in US Politics

      Amy Coney Barrett hearing: top Republican praises judge for being 'unashamedly pro-life' – live

      by

      Lindsey Graham lavishes praise on supreme court nominee
      Barron Trump had coronavirus, first lady reveals
      Barrett dodges abortion and healthcare questions
      Trump and Biden offer different visions of US role in world
      Trump in trouble as Florida’s seniors shift towards Biden
      Sign up for Fight to Vote – our weekly US election newsletter

      LIVE
      Updated

      Play Video

      Amy Coney Barrett questioned on third day of supreme court hearing – watch live

      Key events

      Show

      5.48pm EDT17:48
      Public hearing poortion ends

      5.00pm EDT17:00
      Today so far

      4.06pm EDT16:06
      Barron Trump had coronavirus, first lady reveals

      1.15pm EDT13:15
      Today so far

      12.33pm EDT12:33
      Third day of Barrett’s nomination hearings resumes

      12.01pm EDT12:01
      First break in today’s hearing

      10.27am EDT10:27
      Virginia voter registration deadline extended after technical failure

      Live feed

      Show

      5.48pm EDT17:48

      Public hearing poortion ends

      Next is a closed hearing on FBI background checks. Tomorrow the judiciary committee will set up a vote and hear outside witnesses.
      “You will be confirmed, God willing,” Graham said.

      Updated
      at 5.49pm EDT

      5.40pm EDT17:40

      Senator John Neely Kennedy, a Republican, used a Trump campaign talking point that Harris’ past career as a prosecutor deepened racial inequities to rebut her claim that systematic racism exists.
      You can read more about Harris past as a prosecutor here. The Trump campaign – while itself promoting a “tough on crime” attitude and railing against Black Lives Matter protestors – has nonetheless adopted progressive critiques of Harris’ record as “top cop”.
      Harris “thinks America is systemically racist – I think our history is the best evidence of that it is not,” said the senator from Louisiana, citing the Barack Obama presidency as proof. “With the blink of an eye, we went from institutionalized slavery to an African American president,” he said.
      After lobbing several softball questions at Barrett including (“Do you hate little warm puppies?”) Kennedy ended by asking: “Who does the laundry in your house?” (which I’m sure he also meant to ask Brett Kavanaugh and Neil Gorsuch).
      It is worth noting that Barrett didn’t clearly answer this one either: “We run a lot of loads of laundry.”

      5.19pm EDT17:19

      Barrett also would not comment on whether she believes voting discrimination exists.
      Harris: Do you agree with Justice Roberts when he said voting discrimination still exists?
      Barrett: “I will not comment on what any justice said in an opinion, whether an opinion is right or wrong, or endorse that proposition.”

      Aaron Rupar
      (@atrupar)
      Under questioning from Kamala Harris, Amy Coney Barrett refuses to say if she thinks voting discrimination still exists pic.twitter.com/gv9KN904fu

      October 14, 2020

      5.14pm EDT17:14

      Harris took up questioning Barrett on climate change.
      Harris: Do you think COVID-19 is infectious?
      Barrett: Yes.
      Harris: Do you think smoking causes cancer?
      Barrett: I’m not sure exactly where you’re going with this… Yes, every package of cigarettes warns that smoking causes cancer.
      Harris: Do you think climate change is happening?
      Barrett: “Senator, again… You have asked me a series of questions that are completely uncontroversial, and then trying to elicit an opinion from me that is on a very contentious matter of public debate.”
      Climate change is not a contentious matter of public debate – about 8 in 10 Americans say that human activity is fueling climate change, per a Kaiser Family Foundation poll. But most importantly, climate change is not a contentious matter of scientific debate.

      5.00pm EDT17:00

      Today so far

      That’s it from me today. My west coast colleague, Maanvi Singh, will take over the blog for the next few hours.
      Here’s where the day stands so far:
      The third day of Amy Coney Barrett’s nomination hearings is still unfolding. Barrett has been answering questions from the Senate judiciary committee for eight hours, and Democratic vice-presidential nominee Kamala Harris is currently questioning the nominee.
      Lindsey Graham praised Barrett as “unashamedly pro-life,” describing her nomination as historic. “I have never been more proud of a nominee,” the Republican committee chairman said. “This is history being made, folks. This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology. And she’s going to the court.”
      The first lady revealed Barron Trump had coronavirus. Melania Trump said Barron, her and the president’s 14-year-old son, tested positive for coronavirus but showed no symptoms. Barron and the first lady have both since tested negative, she said.
      Trump is en route to Des Moines, Iowa, where he will hold a campaign rally tonight. The president won Iowa by 9 points in 2016, but recent polls show Trump and Biden running neck and neck in the state.
      Virginia extended its voter registration deadline, after an accidentally cut cable caused the state’s online registration system to shut down yesterday. Virginia voters now have an additional two days to register.
      Maanvi will have more coming up, so stay tuned.

      4.54pm EDT16:54

      Democratic vice-presidential nominee Kamala Harris is now questioning Amy Coney Barrett. She is the last Democrat who will speak in this round of questioning.

      4.49pm EDT16:49

      Trump is en route to Iowa, a state that he won by 9 points in 2016. Polls currently show the president and Joe Biden running neck and neck in Iowa.
      The president will hold a rally in Des Moines tonight, and attendees will be greeted by this billboard when they arrive at the event site.

      Jim Acosta
      (@Acosta)
      Billboard outside Des Moines airport where Trump holds Iowa rally tonight. pic.twitter.com/XHix45wzlw

      October 14, 2020

      4.41pm EDT16:41

      Speaking to reporters before leaving for his Iowa rally, Trump very briefly addressed his son’s health before pivoting to praising Amy Coney Barrett.

      Aaron Rupar
      (@atrupar)
      Trump spent exactly one second answering a question about how his son Barron is doing after he tested positive for coronavirus pic.twitter.com/aiGXBSbHRZ

      October 14, 2020

      “Barron’s fine, and Amy is doing a fantastic job. We’re heading out to Iowa, and we have a big rally,” Trump said.
      The first lady said in a statement that Barron tested positive but experienced no coronavirus symptoms. He has since tested negative, as has the first lady.

      4.31pm EDT16:31

      Like other Democrats on the Senate judiciary committee, Cory Booker pressed Amy Coney Barrett on voting rights.
      As part of his questioning, Booker asked Barrett if she had ever waited in line for five hours to vote. She said no. Booker asked if she had ever waited an hour to vote. She said no.
      Booker compared those answers to the experience of many black voters in America, who often face long lines at their polling stations.

      4.22pm EDT16:22

      Trump said his son, Barron, is doing “fine” after testing positive for coronavirus.
      The president responded to a reporter’s question about Barron as he left for Des Moines, Iowa, where he is holding a campaign rally later tonight.
      Shortly before Trump’s departure, the first lady revealed Barron had tested positive but shown no coronavirus symptoms in a statement about her own experience with the virus.
      Melania and Barron Trump have both since tested negative, the first lady said.

      4.16pm EDT16:16

      Amy Coney Barrett told Democrat Cory Booker that she could not offer her opinion on whether it was wrong to separate immigrant children from their parents.
      “That’s a matter of hot political debate in which I can’t express a view or be drawn into as a judge,” Barrett said. “I can’t express a view on that.”
      The Democratic senator responded that he considered such matters to be “basic questions of human rights”.
      The Trump administration attracted severe criticism in 2018 after its “zero tolerance” immigration policy resulted in thousands of children being separated from their parents.

      4.06pm EDT16:06

      Barron Trump had coronavirus, first lady reveals

      Melania Trump released a statement about her experience with coronavirus, and the first lady revealed her son with the president, Barron Trump, tested positive for coronavirus.
      The first lady said 14-year-old Barron initially tested negative after the president was diagnosed, as the White House announced. But the White House did not reveal Barron’s later test came up positive.

      Melania Trump
      (@FLOTUS)
      To all who have reached out – thank you. Here is my personal experience with COVID-19 :https://t.co/XUysq0KVaY

      October 14, 2020

      “To our great relief he tested negative, but again, as so many parents have thought over the past several months, I couldn’t help but think ‘what about tomorrow or the next day?’,” the first lady said in the statement.
      “My fear came true when he was tested again and it came up positive. Luckily he is a strong teenager and exhibited no symptoms.”
      The first lady noted Barron has since tested negative again, as has she. Trump said her own experience with coronavirus was like “a roller coaster of symptoms in the days after” she was diagnosed.
      “I experienced body aches, a cough and headaches, and felt extremely tired most of the time,” Trump said. “I am happy to report that I have tested negative and hope to resume my duties as soon as I can.”
      The first lady added, “Along with this good news, I want people to know that I understand just how fortunate my family is to have received the kind of care that we did.”
      Trump said she continues to pray for the Americans who are currently struggling with coronavirus and their families.

      Updated
      at 4.09pm EDT More

    • 138 Shares159 Views

      in US Politics

      Amy Coney Barrett pledges 'open mind' and plays down conservative record

      by

      Judge Amy Coney Barrett, Donald Trump’s nominee to the US supreme court, returned to Capitol Hill on Wednesday for a final round of questioning about her judicial record and personal views, with her confirmation all but assured despite Democrats’ forceful opposition.Members of the Senate judiciary committee on Wednesday attempted to dig deeper into the conservative judge’s views on the Affordable Care Act, which expanded healthcare cover to millions more Americans under Barack Obama’s signature piece of legislation, and abortion rights.Also on the agenda in this week’s hearings are same-sex marriage, gun control and any potential cases related to the result of the looming 2020 election.But Barrett, in the tradition of recent supreme court nominees, avoided answering directly about how she would rule on some of the most important issues that the court may be asked to address.Playing down the conservative positions she expressed in legal writings as an academic and in personal commitments she made as a private citizen, the 48-year-old appellate court judge she had no political agenda and would approach every case with “an open mind”.Barrett has been nominated to replace Ruth Bader Ginsburg, a liberal icon who died last month. The confirmation hearings have halted all other business on Capitol Hill as Republicans, eager to cement a conservative majority on the court for at least a generation, rush to confirm Barrett before the November election.Opening the session on Wednesday, after nearly 12 hours of questioning the day before, Senator Lindsey Graham, a Republican of South Carolina and the chairman of the committee, celebrated Barrett’s almost inevitable confirmation as a momentous victory for conservatives, and particularly for conservative women, who he said have faced “concrete” social and cultural barriers in public life that do not exist for liberal women.“This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology,” Graham said. “She is going to the court.”In moments of personal reflection during the hearings, Barrett suggested that mockery of her association with People of Praise, the insular Catholic community inspired by charismatic Christianity, as well as commentary about her large family, which includes two adopted children from Haiti, has been painful. But she said while faith was important to her personally, it would not influence her decisions on the supreme court bench.But she repeatedly declined to say how she would rule on a challenge to Roe v Wade, the landmark 1973 supreme court decision that established a woman’s right to an abortion. But she declined again on Wednesday to characterize the decision as a “super-precedent” that must not be overturned.Democrats continued to press their case that her confirmation would imperil the Affordable Care Act, also known as Obamacare, arguing that Donald Trump and Republicans were rushing to confirm her before the court hears arguments that could decide the fate of the healthcare law next month. Again, Barrett insisted that she was not “hostile” to the ACA and would decided cases “as they come”.Republican state officials and the Trump administration are effectively seeking to invalidate the entire healthcare law based on a single part of it.Though she did not say how she would rule, Barrett expressed skepticism of this view in an extended exchange with Graham. In such cases, the judge said “the presumption is always in favor of severability” – a legal doctrine applied to congressional litigation that she said requires a court to strike down one element while preserving the rest of the law.Democrats have urged Barrett to recuse herself in the forthcoming case involving the ACA – as well as potential challenges to the result of the election – because Trump has repeatedly said that his judicial nominees will dutifully advance his agenda. In a vague reference to the president’s tan, Senator Dick Durbin, a Democrat from Illinois, suggested that Trump’s words cast an “orange cloud” over Barrett’s nomination.Barrett declined to say whether she would recuse herself in either instance, only that she would consider the matter. Again, she maintained her independence from the executive branch and the president who nominated her, first to a seat on the US court of appeals for the seventh circuit, and then to the supreme court.Pressed by Senator Patrick Leahy, a Democrat of Vermont, Barrett would not say whether the president was allowed to pardon himself. She stated unequivocally that that “no one is above the law”, though cautioned that the supreme court has no real recourse to ensure that Americans, including the president, followed its orders.Republicans rushed to the judge’s defense, accusing Democrats of impugning her integrity as a judge.Recalling the 1987 nomination ofRobert Bork, which was derailed amid deep opposition from liberal groups and Democrats who warned that his confirmation would tilt the court to the right on key issues such as religion and abortion, senator Josh Hawley, a Republican from Missouri, decried the “attempted Borking of Amy Barrett”.Republicans touted her adherence to “originalism”, an approach championed by Barrett’s mentor, the late justice Antonin Scalia, that aims to interpret the constitution as it was written centuries ago. Confronted by Senator Chris Coons, a Democrat of Delaware, with several of Scalia’s more controversial opinions, including a scathing dissent in a landmark case establishing the right for same-sex couples to marry, Barrett said that they shared a philosophy but would not always reach the same conclusions.“I hope you’re not suggesting I don’t have my own mind,” she said.But Coons was not persuaded, and announced that he would not vote to confirm her.“Nothing has alleviated my grave concerns that rather than building on Justice Ginsburg’s legacy of advancing privacy and equality and justice, … in fact, you will take the court in a very different direction,” he said.Owing to the proximity of the election, and the near-certainty of the outcome, many senators have used the nationally televised hearings as an opportunity to amplify their campaign messages. Graham, locked in a tight race for re-election in South Carolina, was effusive in his praise of the conservative judge, who Republicans hope will energize their base while appealing to suburban women leaving the party over Trump.“I have never been more proud of the nominee than I am of you,” Graham said to Barrett. “This is history being made, folks.”Away from the hearing room, the Democratic presidential nominee Joe Biden told donors that Barrett “seems like a decent person” but said it was “an abuse of power” to confirm her to the supreme court before the November election.The committee is expected to vote on 22 October, as Trump pressures the Senate to confirm Barrett before the November election. More

    • 188 Shares199 Views

      in US Politics

      The problem with Amy Coney Barrett's nomination isn't timing. It's her views | Nathan Robinson

      by

      The nomination of Amy Coney Barrett to the US supreme court has been controversial in large part because Republicans are so obviously violating the standard they used to justify keeping Merrick Garland off the supreme court during Obama’s second term. But that hypocrisy has overshadowed the much more important matter: the substance of Barrett’s record, and her likely actions as a supreme court justice.Barrett’s rulings on the seventh circuit court of appeals show her to be someone who cares little about justice, and who doesn’t particularly value the interests of workers, immigrants and the poor. In case after case, she has found procedural technicalities to justify depriving people of their basic rights, and it’s clear that on some of the most important issues of our time, she would swing the supreme court in a direction nobody should want to see it go.Take policing. This year saw the eruption of massive Black Lives Matter protests all over the country as a reaction to police violence, with the deaths of George Floyd and Breonna Taylor outraging millions of people. But as a judge, Barrett has shown little interest in rectifying racial injustice. In the case of Torry, et al v City of Chicago, et al, she concluded that officers were reasonable in stopping and harassing a group of Black men even though there was absolutely no evidence that they had committed a crime. In Biegert v Molitor, et al, Barrett sided with police who shot a mentally ill man to death after his mother had called 911. In United States v Wilson, Barrett concurred with a decision that officers had reasonable suspicion to use force to detain a Black man when he ran away from them, because he had a “bulge in his pocket” and was in a “high-crime area”, in part because a “reasonable officer could infer from Wilson’s flight that Wilson knew he was in violation of the law”. And in Sims v Hyatte, Barrett indicated that she would have kept a Black man in prison who had been convicted on the basis of incredibly dubious eyewitness testimony.Barrett’s attitude has been the same on other issues. On immigration, she has indicated that she would defer to the executive branch’s absurd reasons for denying visas to lawful immigrants, without requiring the Trump administration to justify its decisions. She has ruled against prisoners, workers, debtors, and consumers, and there is reason to believe she would rule against the Affordable Care Act if the issue came before her.Barrett’s body of rulings is not that large, making it difficult to extrapolate how she would rule on important issues if elevated to the supreme court. But we have ample reason to believe that Barrett, a conservative Catholic, is hostile to abortion rights and might overturn Roe v Wade when she had a chance. In addition to being a conservative Catholic, Barrett is a self-described legal “originalist” who almost certainly believes Roe was a legally shoddy opinion. (Even Ruth Bader Ginsburg was not that confident in the legal grounds for the ruling.)There is one perspective on law that suggests judges should be evaluated on the basis of their “qualifications” rather than their “politics”. This point of view has led the liberal Harvard Law professor Noah Feldman to endorse Barrett, on the grounds that she is intelligent and experienced. Some of the same arguments were made about Brett Kavanaugh. If you think in terms of qualifications, it’s difficult to come up with good reasons to oppose conservative judges. After all, many conservatives went to top-ranked law schools and published journal articles. I suspect that this is part of why Democratic opposition to Barrett has not been as strong as it should be, and the focus has been on Republican hypocrisy rather than Barrett’s record. Slate’s Mark Joseph Stern even argues that Democrats have “privately given up” on opposing Barrett.But they shouldn’t. The fact that Barrett is “qualified” does not automatically entitle her to a supreme court seat – and her politics are enough to justify trying to keep her off it. Barrett’s views are almost certainly far to the right of the average American, and her elevation to the court will make that body even less representative of a complex and rapidly changing society. Judging is a political act; supreme court justices do not, as John Roberts famously insisted, merely “call balls and strikes” like neutral umpires. Instead, they impose their personal convictions on the country through rulings on questions that affect us all. Conservative judges tend to be less sympathetic to the relatively powerless, and this comes out in their rulings. If you care about protecting the legal rights of the powerless, you have good reason to oppose the confirmation of hardline conservatives onto the court no matter which law school they went to or how many years they have previously served on the bench.The primary reason Barrett needs to be opposed is not that she has been nominated during an election year, but that she has been nominated at all. Her record as a federal appeals court judge indicates that she will issue politically conservative rulings with harmful social consequences. Democrats need to unanimously oppose her and use all of the procedural weapons at their disposal to reduce the chances of her successful confirmation. More