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    Amy Coney Barrett: US supreme court nominee delivers opening statement – video

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    US supreme court nominee Amy Coney Barrett was sworn in during Monday’s opening confirmation hearing before the Senate judiciary committee and told senators she was humbled to be considered to fill the seat left by Ruth Bader Ginsburg.
    President Donald Trump formally nominated Barrett on 26 September.
    Trump’s nomination of Barrett to a vacancy created by the death last month of Ginsburg just weeks before the election enraged Democrats, still furious about Republicans’ refusal to consider a nominee from Barack Obama some 10 months before the 2016 election.

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

    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

    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

    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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    Lindsey Graham, reverse ferret: how John McCain's spaniel became Trump's poodle

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    US Senate

    Lindsey Graham, reverse ferret: how John McCain’s spaniel became Trump’s poodle

    Sidney Blumenthal

    On Monday, the senator who praised Hillary and helped get the Steele dossier to the FBI will preside over a hearing for Amy Coney Barrett, a nominee to tilt the supreme court right for years to come. His is a quintessential Washington tale More

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    Mitch McConnell and the Newspeak of Democracy

    US Senate Majority Leader Mitch McConnell has the reputation of acting as a powerful unifier of his party’s troops in the Senate. He has demonstrated his ability to convince fellow Republicans of what needs to be done (or prevented from being done) and how to move forward with urgency (or not move at all), as circumstances require.

    McConnell, a Republican senator, famously blocked sitting Democratic President Barack Obama’s attempt to nominate Judge Merrick Garland to the Supreme Court after the death of Justice Anthony Scalia in February 2016. He did so on the grounds that it was an election year. Now, McConnell is faced with a similar situation, but this time his aim is to force rapid confirmation of President Donald Trump’s candidate, Judge Amy Coney Barrett, less than a month before a presidential election that risks unseating the Republican president. 

    Richard Wagner and the Twilight of Western Civilization

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    From the announcement of Justice Ruth Bader Ginsburg’s death on September 18, the task of pushing through Barrett’s confirmation already appeared to be a daunting task. It would require every bit of talent and energy McConnell is capable of, especially after learning that he was guaranteed only the slimmest of margins in a vote of the full Senate. Still, the odds of success looked good, at least until the nation learned on October 2 that President Trump had tested positive for COVID-19 and would be hospitalized. Worse, two Republican senators also tested positive.

    As everyone knows, the valor of great heroes will always be tested by the gods. Sensing the panic that might follow concerning the continuity of government itself, McConnell wasted no time reassuring an anxious nation that everything would continue as planned. After speaking to the president, he reported via Twitter the good news: that the president was healthy enough to govern and that Barrett’s confirmation was still on course.

    On Friday, McConnell tweeted: “He’s in good spirits and we talked business — especially how impressed Senators are with the qualifications of Judge Barrett. Full steam ahead with the fair, thorough, timely process that the nominee, the Court, & the country deserve.”

    Here is today’s 3D definition permitting to understand McConnell’s vocabulary:

    Fair, thorough, timely:

    Hypocritical, incomplete, rushed  

    Contextual Note

    McConnell provides a textbook example of a rhetorical device called a tricolon: “a series of three parallel words, phrases, or clauses.” Some teachers call it the “rule of three,” observing that three aligned items are “always stronger and more memorable than one.” It is the key to sounding authoritative.

    The senator insists that his precipitation, in this case, is “fair” because some people dared to suggest it contradicted the sacred principle he himself had invoked in 2016 to justify delay. At the time, McConnell insisted that only the newly elected president had the legitimacy to nominate a candidate. “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide,” he said.

    Embed from Getty Images

    In effect, a US presidential election is the only time the will of the people of the entire nation is expressed. And so, in 2016 democracy prevailed. Trump was elected. McConnell had his way, effectively preventing the confirmation of Judge Garland. Alas, it wasn’t “the people” who offered Trump the keys to the White House but the Electoral College. In their clear majority, the people had voted for Hillary Clinton, the Democratic presidential nominee. 

    So much for fair. What about the idea of thorough? The New York Times reports that “Republican officials said they had no doubt that senators would find a way to muscle through the nomination over Democrats’ protests.” In US culture, the idea of “thoroughness” often implies exactly that: using muscle to overpower any opposition, making the result irreversible. The adversary must be thoroughly defeated. The terminator must be thoroughly terminated.

    Finally, “timely” normally contains the idea of optimal timing to produce an acceptable result in the general interest. For McConnell, it seems to mean any timing that achieves his own goals. In the current context, a timely confirmation must take place before November 3. This ensures that even if the will of the people in 2020 results in the election of Democrat Joe Biden, the more sacred will of the Electoral College in 2016 will be honored. The meaning of words sometimes evolves. In 2016, timely meant “not now.” In 2020, it means “immediately.”

    Historical Note

    Any lucid observer would agree that politicians tend to be disingenuous. Sometimes it is for laudable reasons, such as conveying an optimistic message in dire times to bolster the public’s morale. But more commonly, it reflects the simple fact that most of their public discourse is motivated by their electoral strategy rather than the logic of government or the needs of the people.

    This has become accepted as the normal hypocrisy of politicians. Mitch McConnell may be twisting the meaning of words, but he is guilty of nothing more than everyday political hypocrisy. In contrast, Donald Trump is one of those rare politicians who, lacking any serious training in political culture, consistently rises above the habit of everyday hypocrisy by boldly and brazenly prevaricating. Trump will never miss an opportunity to deny the obvious or affirm the absurd. 

    President Trump’s success over the past four years may have created a trend that has now infected others. Democratic Senator Chris Murphy demonstrated this trend on October 2 when, in an interview with CNN about Trump’s temporary absence due to COVID-19, he asserted that the president “is going to rely on his surrogates. And unfortunately, one of his surrogates is Vladimir Putin.”

    When politicians make statements as comically over the top as this on national television without being challenged by their hosts in the media, the very notion that a stable frame of reference exists in public life risks disappearing irretrievably. What emerges is the impression that democracy and the ritual of elections constitute little more than an entertaining facade, a form nor of reality TV but of hyperreality TV, produced by people whose business is to seek, manage and manipulate power. Nothing they say has meaning other than as a badge of power. The more brazen the lying, the more respect they earn for demonstrating their competence in playing with the levers of power.

    In recent years, the concept of democracy has come to designate little more than the toolbox successful politicians use to convince the populace that they are fulfilling their will, even when contradicting it. What better illustrates this truth than Brexit in the UK? Theresa May and Boris Johnson, the two prime ministers who succeeded the hapless David Cameron, argued that the official result of the poorly designed and clearly manipulated 2016 referendum asking people to answer “leave” or “remain” to a question no one could understand definitively represented “the will of the people.” Similarly, Trump has consistently claimed that any policy he supports, however absurd, reflects the will of the people who voted in 2016.

    In his book, “The Will of the People: A Modern Myth,” political theorist Albert Weale claims that “around the world, political parties and movements – on both the left and on the right – invoke the will of the people.” He compares the idea of “the will of the people” to unicorns, flying horses and the sunken continent of Atlantis.

    Gideon Rachman, writing for the Financial Times last year, detected a common thread to Trump’s and Johnson’s approach to governing. He saw their insistence that the result of one election or referendum in 2016 justified every one of their own most extreme policies as “signs that the laws and conventions that underpin liberal democracy are under attack in both the UK and the US, two countries that have long regarded themselves as democratic role models for the world.”

    Both the US and the UK are on the brink. We still have no idea of how Brexit will play out in 2021. What happens in the US after November 3 is anybody’s guess, but the result is unlikely to be pretty. Democracy, in its unnatural marriage with capitalism, is reeling from the unexpected structural and economic effects of a pandemic. It has aggravated capitalism’s unbridled tendency to upset human life everywhere in the world. The consequence of that is undeniable: It has become increasingly difficult for any politician to conduct business in a way that is fair, thorough and timely.

    *[In the age of Oscar Wilde and Mark Twain, another American wit, the journalist Ambrose Bierce, produced a series of satirical definitions of commonly used terms, throwing light on their hidden meanings in real discourse. Bierce eventually collected and published them as a book, The Devil’s Dictionary, in 1911. We have shamelessly appropriated his title in the interest of continuing his wholesome pedagogical effort to enlighten generations of readers of the news. Read more of The Daily Devil’s Dictionary on Fair Observer.]

    The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy. More