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

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      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

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

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      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

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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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      Conservatives' assault on the supreme court is a judicial tragedy in the making | Shira A Scheindlin

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      On Saturday, Donald Trump nominated Amy Coney Barrett to become an associate justice of the supreme court, to fill the seat vacated by the death of Ruth Bader Ginsburg. In one stroke he violated long-held precedents regarding filling supreme court vacancies, undermined the confidence of the American people in the legitimacy of the court, and ensured that the court will turn back decades of progress in civil rights.This nomination is unprecedented. No justice has been confirmed to a seat on the court during an election year when a vacancy occurred after June. Yet when a vacancy occurred in February 2016 – an election year – the Republican majority in the Senate refused to even consider Barack Obama’s March nomination of Merrick Garland. In fact, when Antonin Scalia died, Obama waited a month to make a nomination out of respect for the mourning process. This time, Trump announced within a day of Ginsburg’s death that he would fill the seat immediately and then made his nomination just a week later.In a naked acknowledgment of his true motivation, Trump recently said that the country needs a ninth justice because the pending election could well end up before the court and a 4-4 court would be a bad thing. Yet, in 2016, the Republicans were content with a 4-4 court with an election around the corner. Indeed, Republicans threatened that if Hillary Clinton won the election, no new justice would be confirmed, leaving the court with only eight justices throughout her term.This election is already in progress with thousands (and soon millions) of Americans voting during what will inevitably be a highly contentious confirmation process. This process will inevitably affect the election and thereby politicize the supreme court as never before. The political branches of our government – the executive and legislative branches – are elected by voters; the court, on the other hand, is supposed to be non-partisan. While appointed by the president and confirmed by Congress, the justices are not beholden to any political party but rather to the rule of law.This is no longer the case. Public confidence and public perception that the courts are non-partisan has eroded. The Republican boycott of Garland, together with Trump’s unprecedented nomination of Barrett and her likely confirmation, will seal the Republican theft of two supreme court seats, at least in the eyes of more than half the electorate, and will ensure conservative control of the court for decades to come.If Barrett’s record is any indication, the court will soon turn its back on its most treasured precedents and turn America into a more regressive country. Before joining the bench just three years ago, she served as a law clerk to Scalia, whose judicial philosophy she has fully embraced. She has also been a longtime member of the rightwing Federalist Society.Public confidence and public perception that the courts are non-partisan has erodedHer short judicial record, together with her scholarly writings, reveal that she is a rock-solid conservative jurist. Like Scalia, she defines herself as an originalist and textualist, which means that the constitution must be viewed as of the time it was written. From that perspective, there is nothing in the constitution that would explicitly support abortion rights, gay marriage, mandatory school desegregation, or the right to suppress evidence that is illegally seized. By contrast, in one of her most famous opinions, United States v Virginia (1996), Ginsburg wrote that “a prime part of the history of our constitution … is the story of the extension of constitutional rights and protections to people once ignored or excluded.”In a 2013 article, Barrett repeatedly expressed the view that the supreme court had created, through judicial fiat, a framework of abortion on demand that ignited a national controversy. In an opinion she joined with another judge, she expressed doubt that a law preventing parents from terminating a pregnancy because they did not want a child of a particular sex or one with a disability could be unconstitutional. These writings surely indicate that Barrett will do whatever she can to limit or eliminate abortion rights.Barrett has also expressed dissatisfaction with the Affordable Care Act and support for a broad interpretation of the second amendment. She has written that Chief Justice John Roberts “pushed the Affordable Care Act beyond its plausible meaning”. She also quoted Scalia, when he wrote that “the statute known as Obamacare should be renamed ‘Scotuscare’” in “honor of the court’s willingness to ‘rewrite’ the statute in order to keep it afloat”. There is little doubt that Barrett would be inclined to find the Affordable Care Act unconstitutional and thereby deprive millions of Americans of affordable healthcare coverage. Similarly, she wrote a dissenting opinion questioning the constitutionality of a statute that prohibited ex-felons from purchasing guns. Thus, she has demonstrated her fealty to the NRA position that the more guns the better – inevitably leading to more Americans dying from gun violence.When addressing the legal doctrine known as stare decisis, meaning respect for precedent, Barrett wrote that she “tend[ed] to agree with those who say that a justice’s duty is to the constitution and that it is thus more legitimate for her to enforce her best understanding of the constitution rather than a precedent she thinks is clearly in conflict with it”. In other words, she would overturn landmark decisions such as Brown v Board of Education or Roe v Wade if those decisions did not reflect her best understanding of the constitution.Stunningly, in an interview in 2016, when asked whether Congress should confirm Obama’s nominee during an election year, Barrett responded that confirmation should wait until after the election because an immediate replacement would “dramatically flip the balance of power”. Given that answer, she should decline the nomination, as her confirmation would even more dramatically flip the balance of the court, entrenching a 6-3 conservative majority.Confirming this nominee before the outcome of the national elections – which will determine both the identity of the next president and the composition of a new Senate – is unprecedented, inexcusable and a threat to many rights that the majority of Americans have embraced. This is a tragedy about to happen. More