Amy Coney Barrett: Adding a Handmaid to SCOTUS

[JMarie]

As an adult, do you ever hear your mom or grandma's voice in your head? One thing my mom always told me was if I'm going to do something special, I should do something pretty with my hair. This led me to many nights sleeping on pink sponge curlers the night before middle school dances, and a later fascination with barrettes and scrunchies. So every time I see ACB, I want to hand her a hairbrush and a deep conditioner. So. Badly. That, and she sounds like Marcie Fox from Jawbreaker.

[starfish]

On 10/16/2020 at 3:44 PM, JMarie said:

As an adult, do you ever hear your mom or grandma's voice in your head? One thing my mom always told me was if I'm going to do something special, I should do something pretty with my hair. This led me to many nights sleeping on pink sponge curlers the night before middle school dances, and a later fascination with barrettes and scrunchies. So every time I see ACB, I want to hand her a hairbrush and a deep conditioner. So. Badly. That, and she sounds like Marcie Fox from Jawbreaker.

Yes to both of those things. Hair conditioner is a good thing, Coney Island Barrett. Split ends are not. And that voice......

And substantively, she needs to answer a question.  She acts like she's too good to answer anything. At least Kavanaugh told us he likes beer......

[Marmion]

Quote

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.

https://www.theguardian.com/commentisfree/2020/oct/14/the-problem-with-amy-coney-barretts-nomination-isnt-timing-its-her-views?

[GreyhoundFan]

"A 2009 Supreme Court ruling may require Barrett to recuse herself from 2020 election cases"

Spoiler

J. Michael Luttig served as a judge on the U.S. Court of Appeals for the 4th Circuit from 1991 to 2006.

It is a foregone conclusion that Amy Coney Barrett will be seated on the Supreme Court before the Nov. 3 presidential election. As soon as her first day, Justice Barrett may face the most momentous and difficult decision of her promised tenure of decades: whether to recuse herself from cases that could determine the outcome of that presidential election.

At her confirmation hearings this past week, Barrett rightly deflected Democratic senators’ demands that she commit in advance to recusal, wisely promising instead to seriously consider the question should it arise. Barrett herself almost certainly does not know whether recusal is required and will not know until she is actually confronted with the question.

But as Barrett must already understand, her decision was made exponentially more difficult by Caperton v. A.T. Massey Coal Co., an inartful and mischievous 5-to-4 case decided over a decade ago by the court she will soon join. The ruling would seem to apply squarely to Barrett’s recusal decision and could well require, or at least counsel, her recusal.

Caperton involved a litigant who spent $3 million to help elect a West Virginia Supreme Court of Appeals justice, who then voted to reverse a $50 million damage award against his benefactor. The U.S. Supreme Court found that the judge should have recused himself. Writing for the majority, Justice Anthony M. Kennedy said that recusal may be constitutionally required even where a judge is not actually biased, if there is a “serious risk of actual bias.”

Based upon its appraisal of the “psychological tendencies and human weakness" of all of us, the majority concluded that the campaign spending had “significant[ly] and disproportionate[ly]” influenced the judge’s election while the case was pending or imminent, resulting in a perceived serious risk that the judge was biased in favor of his contributor. “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent — a man chooses the judge in his own cause,” the court said.

The dissenters warned that the majority would come to regret its new test. “At the most basic level,” wrote Chief Justice John G. Roberts Jr., “it is unclear whether the [majority’s] new probability of bias standard is somehow limited to financial support in judicial elections, or applies to judicial recusal questions more generally.” Justice Antonin Scalia, while criticizing the majority for constitutionalizing the judge’s recusal decision “in a manner ungoverned by any discernable rule,” wrote that “in the best of all possible worlds, [judges should] sometimes recuse [themselves] even where the clear commands” of the Constitution don’t require it.

The majority declined to grapple with Roberts’s prescient question whether there is a principled difference between a case where a person has financially influenced a judge and one where the biasing influence is nonfinancial. But the majority’s evident concern was over an influence — financial or not — that would be so overwhelming that a judge’s psychological temptations and human weaknesses would necessarily yield to that influence, whether or not the judge recognized it.

The question for Barrett, if it arises, will not be whether she personally believes she can be fair in deciding an election case but, rather, whether a reasonable person would conclude that her impartiality would be inescapably overborne by the flood of influences brought to bear on her.

Among these pressures are her nomination, due to Justice Ruth Bader Ginsburg’s death, little more than a month before the election, the unavoidable fact that Barrett would be deciding the political fate of the president who nominated her only weeks ago, and President Trump’s ill-timed calls for Barrett’s swift confirmation so that she can be seated in time to decide the election cases. These bludgeoning pressures alone are at once singular and unprecedented, unsurpassed and quite possibly unsurpassable in their magnitude. By comparison, the pressures believed put on the West Virginia judge in Caperton pale.

But while Caperton would seem to apply to Barrett’s decision with proverbial vengeance, only the Supreme Court knows whether this precedent applies so as to require her recusal from the 2020 presidential election cases. And only Barrett will know whether, in Scalia’s words, even if Caperton may not require her recusal, it counsels that recusal.

The art of judging is to divine from extant law and, when necessary, to fashion a principled rule of law that is sufficiently broad to decide the case before the court but sufficiently narrow that the rule will not decide cases for which a different rule should apply. The art is practiced by many but accomplished by few. One would think that the Supreme Court surely must have perfected this art by now, but, truth be known, it often eludes even our highest court — as it did in Caperton.

Unfortunately, inartful Supreme Court decisions are no less the law of the land than artful ones. Now Barrett, the Supreme Court and the country may have to reap the consequences.

 

[mamallama]

It has always puzzled me how one could argue that any of the justices appointed by Trump would not have to recuse themselves should he be a party to a case before them.  I was shocked when that wasn't a criterion used in Bush v Gore.

 

[Audrey2]

6 hours ago, mamallama said:

It has always puzzled me how one could argue that any of the justices appointed by Trump would not have to recuse themselves should he be a party to a case before them.  I was shocked when that wasn't a criterion used in Bush v Gore.

 

The difference between Bush v Gore and Trump v Biden is that neither Bush nor Gore had been president with the ability to nominate Supreme Court justices. Since this is Trump's second term, he's got three of his nominees on the court.

[GreyhoundFan]

Rachel was talking about this on her show.  No surprise that the handmaid is against children of gay parents   
 

https://www.freep.com/story/news/politics/2020/10/21/amy-coney-barrett-trustee-private-school-anti-gay-policies/3715101001/

[mamallama]

Wonder what Frances' statement about civil unions does to her thinking.  Even though she's the kind of Catholic who will fight that you have to follow all church proclamations I'm sure if it doesn't fit with her prejudices she'll feel free to ignore it.

[GreyhoundFan]

Lindsey went ahead and pushed the committee vote, even though all Dems boycotted the vote.

Quote

The Senate Judiciary Committee advanced the nomination of Amy Coney Barrett to the Supreme Court with solely Republican support Thursday, as Democrats boycotted the vote in protest of what they viewed as an illegitimate confirmation process.

The vote was 12-to-zero, with no Democrats present to officially register their objections. The Democratic senators, along with Senate Minority Leader Charles E. Schumer (D-N.Y.), will hold a news conference later Thursday morning.

“That was their choice,” Committee Chairman Lindsey O. Graham (R-S.C.) said. “It will be my choice to vote the nominee out of committee. We’re not going to allow them to take over the committee.”

In place of the Democratic senators, aides had placed 10 large portraits of people who benefited from the Affordable Care Act in their seats. Each person was someone that the Democratic senators spoke about at Barrett’s confirmation hearing last week, which senators centered around the issue of health care and the future of Obamacare.

Democrats are sure to accuse Graham of breaking committee rules to hold the vote, since the panel generally requires two members of the minority to be present to conduct committee business.

But Republican aides said if a majority of the entire committee is present — which, on Thursday, they were — that means the Judiciary Committee can go ahead, under long-standing precedents. There have been more than a half dozen instances, including under Democratic control, since 2006 when the committee has conducted business without two members of the minority being there.

 

[fraurosena]

2 hours ago, GreyhoundFan said:

Lindsey went ahead and pushed the committee vote, even though all Dems boycotted the vote.

 

Well, that was completely expected. They are stacking the SC. They are gearing up to fight the election results tooth and nail. It's going to get ugly...

[fraurosena]

This tweet seems innocuous at first, with a simple message.

But those last two words are everything.

You can bet that once the Dems get control of the Senate, they will undo her appointment to the SC based on the fact that the process to get her there was illegitimate. 

Boom.

[Snarkasarus Rex]

I wish the Dems would stop calling her nomination illegitimate.  It's not.  If it was, they'd have a way to block it.  Dems have pushed business through committee without Republicans showing up so there is precedent for them proceeding.  The boycott is symbolic and they know it.  

Is it right? No. Especially since Merrick Garland's nomination was blocked many months before Election Day. But it's legal and legitimate. They can't undo it once it's done.

[GreyhoundFan]

"Senators engage in bitter floor feud over Barrett nomination to Supreme Court"

Spoiler

Senate Republicans and Democrats engaged in a bitter feud Friday over the confirmation of Judge Amy Coney Barrett as Senate Majority Leader Mitch McConnell took steps to finalize her installation to the Supreme Court by Monday evening.

The move by McConnell (R-Ky.) set up a procedural vote Sunday to advance the nomination of the conservative jurist, with a final vote Monday. With a narrow majority, Senate Republicans have enough support to confirm President Trump’s third high-court nominee, a hallmark achievement of this White House and the McConnell-led Senate — with the GOP in a close fight to keep control of both in the Nov. 3 elections.

McConnell, who has faced a chorus of outraged Democratic senators in the weeks since the death of Justice Ruth Bader Ginsburg on Sept. 18, on Friday defended his decision to confirm Barrett so close to an election and took time to praise her legal credentials and jurisprudence.

But the debate Friday was also imbued with years of built-up anger over each side’s escalation in the judiciary wars.

McConnell ticked off several perceived sins from Democrats in the battle over judges throughout multiple administrations, including the successful effort in 1987 to defeat President Ronald Reagan’s nomination of Robert H. Bork, who was ultimately rejected on a bipartisan vote; the first-ever filibuster of a circuit court nominee, under President George W. Bush; and their decision in 2013 to go “nuclear” on confirmation rules to require effectively a simple majority to process nominations.

“It’s a matter of fact — a matter of history — that it was Senate Democrats who first began our . . . contemporary difficulties back in 1987 and who initiated every single meaningful escalation,” McConnell said. “Every escalation was initiated by the other side.”

But McConnell engineered one of the most significant escalations of the judicial wars in recent years when he blocked the nomination of President Barack Obama’s third Supreme Court pick in 2016 for eight months in anticipation of the election — a move that has embittered Democrats since.

McConnell’s speech included an unusually sharp and personal jab at Senate Minority Leader Charles E. Schumer (D-N.Y.): “I hope our colleague from New York is happy with what he has built. I hope he is happy with where his ingenuity has gotten the Senate.”

When McConnell spoke, he primarily faced the Republican side of the chamber, with his back to Democratic senators. As Schumer stood up after McConnell’s remarks, the Democrat spoke to all senators, even though at least a dozen were fiddling with their phones.

Schumer called McConnell’s speech a “tit-for-tat, convoluted version of history.”

“The Republican majority is on the precipice of making a colossal and historic mistake,” Schumer said. “The damage it does to this chamber will be irrevocable.”

Schumer painted a party of hypocrisy that had no qualms holding up the nomination of Merrick Garland to the Supreme Court in 2016 and yet is rushing through the confirmation of Barrett just over a week before an election in which tens of millions of Americans have already voted.

To Republicans, Schumer said, “You don’t have the right to argue consistency when you’re doing what you’re doing now.”

“The majority has trampled over norms, rules, standards, honor, values, any of them that could possibly stand in its monomaniacal pursuit to put someone on the court who will take away the rights of so many Americans,” Schumer said.

Barrett’s confirmation, which has produced a rancorous yet truncated fight in the Senate, is all but assured. She has the support of nearly all GOP senators and needs only a simple majority of the Senate to clear two key floor votes en route to becoming a justice.

Sen. Susan Collins (R-Maine), facing a tough reelection fight, has said she would vote against Barrett’s confirmation, to register her opposition to her party moving on the nomination so close to a closely contested presidential election. Sen. Lisa Murkowski (R-Alaska) has also registered her objections to the process, although she has yet to say whether she will vote against Barrett on the floor.

Collins and Murkowski voted with Democrats to try to prevent McConnell from going into executive session, which he needed to do to set up the process and lock in floor votes on Barrett.

Throughout Friday, Democrats had pushed a number of dilatory procedural maneuvers, including an unexpected — yet brief — closed session that Democrats said was meant to candidly discuss the toxic process surrounding Barrett’s confirmation.

Republicans had no choice but to allow the closed session, since all it takes is one senator to offer to move into closed session and another to second it. About 20 minutes later, the Senate quickly reconvened in public. No actual discussion occurred among senators while the cameras were off.

“It's just harassment,” said Sen. John Cornyn (R-Tex.). “It's not about substance.”

Shortly afterward, McConnell formally set up a pair of votes to confirm Barrett, 48, currently a judge on the U.S. Court of Appeals for the 7th Circuit.

On the floor all week, Schumer has pushed for a number of votes meant to illustrate how Republicans have upended confirmation procedures. Schumer pushed for a floor vote Thursday arguing that Barrett’s nomination should not be considered — because, according to Democrats, it was reported in violation of Senate Judiciary Committee rules. (Republicans say there was no such violation.)

Democratic senators also boycotted Barrett’s vote in the Judiciary Committee on Thursday, choosing instead to hold a news conference on the steps of the Capitol — giving Barrett a unanimous committee vote, yet one with an asterisk.

 

[SPHASH]

Fuck you Lisa Murkowski!

 

[starfish]

4 hours ago, SPHASH said:

Fuck you Lisa Murkowski!

 

She's a freaking coward. 

[GreyhoundFan]

 

[Smee]

Wait, is this actually happening? She’s going to be confirmed? I thought it’d be blocked, doesn’t both the house and senate need to confirm her??

[Snarkasarus Rex]

29 minutes ago, Smee said:

Wait, is this actually happening? She’s going to be confirmed? I thought it’d be blocked, doesn’t both the house and senate need to confirm her??

No, only the Senate confirms SCOTUS justices. The Democrats never had a way to stop it.

[Travlr98]

ACB was just confirmed to the Supreme Court 

[GreyhoundFan]

19 minutes ago, Travlr98 said:

ACB was just confirmed to the Supreme Court 

She's being sworn in at 9PM.

[apple1]

Heartbreaking. (I have daughters and a granddaughter).

[libgirl2]

I wonder if she will wear her red Handmaiden's robes? 

[SilverBeach]

I just logged on to come here and say how disgusted I am that the handmaid's confirmation has been rammed through a week before the election, while voting is ongoing. When Obama's nominee wasn't even brought in for a hearing, in MARCH of 2016.  How can they possibly justify this blatant hypocrisy? Democracy is truly on life support.  The rules for this kind of thing need to be firmed up, as the rethugs have shown that decency and fairness mean nothing anymore. I hope turtle's ass is voted out. How can any of them look at themselves in the mirror?  The hearings were a sham, and the handmaid isn't even that bright. RBG is truly turning over in her grave.  I am really, truly over what the US has become. Sickening.

ETA: Why does just the Senate need to confirm justices? We are all so screwed. It's time to stop being so nice while we get fucked over again and again.  Rethugs are determined to legislate from the bench, circumventing the entire purpose of having three branches of government. It will take ten years to undo the damage that's been done in four. I'm just sick. 

Edited October 27, 2020 by SilverBeach

[SilverBeach]

On 10/23/2020 at 3:23 PM, Snarkasarus Rex said:

I wish the Dems would stop calling her nomination illegitimate.  It's not.  If it was, they'd have a way to block it.  Dems have pushed business through committee without Republicans showing up so there is precedent for them proceeding.  The boycott is symbolic and they know it.  

Is it right? No. Especially since Merrick Garland's nomination was blocked many months before Election Day. But it's legal and legitimate. They can't undo it once it's done.

It may be legal , but it sure as shit is not legitimate.  What it is is immoral and hypocritical after what was done to President Obama in 2016. And confirming a justice while people are voting SHOULD be made illegal. I don't mind the symbolic boycott, not at all. That's why I'm so upset, it can't be undone and I feel so disempowered and disenfranchised as a US citizen. 

[nausicaa]

10 hours ago, GreyhoundFan said:

 

I don't think this is true. I do believe Elena Kagan had less experience before being appointed.

That being said, I have really serious concerns about Barrett.