Trump To Nominate Amy Coney Barrett to SCOTUS
Unless something really screwy happens, and it’s 2020 so…yeah, President Trump will announce Amy Coney Barrett as his nominee to replace Ruth Bader Ginsburg on the Supreme Court.
President Trump has told people around him that on Saturday he plans to nominate federal appeals court judge Amy Coney Barrett to fill the Supreme Court vacancy left by the death of Justice Ruth Bader Ginsburg, putting forth a nominee who, if confirmed, would ensure a solid conservative majority on the high court for years to come, according to people familiar with the matter.
Democrats have little chance to block the nominee, but a bitter Senate battle looms in the weeks ahead of the Nov. 3 election, the results of which Trump has said may end up before the high court.
Barrett’s confirmation would replace a liberal icon with a deeply conservative jurist whose views suggest she might vote to further limit abortion rights, an issue that animates conservative Republicans and evangelical voters.
Barrett, 48, could hold the lifetime seat for decades. She would join two other relatively young, deeply conservative jurists chosen for the high court by Trump. Trump’s first two appointments, Neil M. Gorsuch and Brett M. Kavanaugh, are in their 50s. The trio would represent one-third of the body and form a new 6-3 conservative majority.
Ginsburg’s death jolts chaotic presidential race as both sides prepare for Supreme Court battle
The people familiar with the matter, who spoke on the condition of anonymity because the decision has not been announced, cautioned that Trump could always change his mind ahead of the announcement but said he is telling others that Barrett is his pick. She is the only candidate he is known to have met with about the vacancy. Administration officials and campaign advisers were preparing for a Barrett announcement, and remarks for the president disclosing her as his choice have already been written, according to these people.
Some Videos of Judge Barrett:
Talking about her family at her 7th Circuit confirmation hearing in 2017:
Amy Barrett introduces family 9/6/2017 hearing.
– 7 children
– "Vivian 13, our miracle, was born in Haiti, 14 months old weighed 11 pounds"
– "John Peter born in Haiti joined family 2010 after devastating earthquake
– "Benjamin 5 has special needs"
— Howard Mortman (@HowardMortman) September 25, 2020
Interview discussing the death of Justice Antonin Scalia in 2016, who Judge Barrett clerked for:
The invaluable SCOTUSBlog has a detailed breakdown of Judge Barrett and her career including various writings and rulings, but this bit from her 2017 confirmation hearing is likely to be the crux of the coming one:
When questioned about the article at her 7th Circuit confirmation hearing, Barrett stressed that she did not believe it was “lawful for a judge to impose personal opinions, from whatever source they derive, upon the law,” and she pledged that her views on abortion “or any other question will have no bearing on the discharge of my duties as a judge.” She acknowledged that, if she were instead being nominated to serve as a federal trial judge, she “would not enter an order of execution,” but she assured senators that she did not intend “as a blanket matter to recuse myself in capital cases if I am confirmed” and added that she had “fully participated in advising Justice Scalia in capital cases as a law clerk.”
Barrett’s responses did not mollify Feinstein, who suggested that Barrett had a “long history of believing that religious beliefs should prevail.” In a widely reported exchange, Feinstein told Barrett that, based on Barrett’s speeches, “the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for years in this country.”
In another article, “Stare Decisis and Due Process,” published in the University of Colorado Law Review, Barrett discussed the legal doctrine that generally requires courts to follow existing precedent, even if they might believe that it is wrong. Barrett wrote that courts and commentators “have thought about the kinds of reliance interests that justify keeping an erroneous decision on the books”; in a footnote, she cited (among other things) Planned Parenthood v. Casey, the 1992 decision reaffirming Roe v. Wade. Barrett’s detractors characterized the statement as criticism of Roe itself, while supporters such as conservative legal activist Ed Whelan countered that the statement did not reflect Barrett’s views on Roe itself, but instead was just an example of competing opinions on the reliance interests in Roe.
Path to the federal bench
Trump nominated Barrett to the 7th Circuit on May 8, 2017. Despite some criticism from Democrats, she garnered bipartisan support at her confirmation hearing. A group of 450 former students signed a letter to the Senate Judiciary Committee, telling senators that their support was “driven not by politics, but by the belief that Professor Barrett is supremely qualified.” And she had the unanimous support of her 49 Notre Dame colleagues, who wrote that they had a “wide range of political views” but were “united however in our judgment about Amy.”
After Barrett’s confirmation hearing but before the Senate voted on her nomination, The New York Times reported that Barrett was a member of a group called People of Praise. Group members, the Times indicated, “swear a lifelong oath of loyalty to one another, and are assigned and accountable to a personal adviser.” Moreover, the Times added, the group “teaches that husbands are the heads of their wives and should take authority for their family.” The newspaper quoted legal experts who worried that such oaths “could raise legitimate questions about a judicial nominee’s independence and impartiality.”
Barrett declined the Times’ request for an interview about People of Praise, whose website describes the group as an “ecumenical, charismatic, covenant community” modeled on the “first Christian community.” “Freedom of conscience,” the website says, “is a key to our diversity.” In 2018, Slate interviewed the group’s leader, a physics and engineering professor at Notre Dame, who explained that members of the group “often make an effort to live near one another” and agree to donate 5% of their income to the group.
On Oct. 31, 2017, Barrett was confirmed to the 7th Circuit by a vote of 55 to 43. Three Democratic senators – her home state senator, Joe Donnelly; Tim Kaine of Virginia; and Joe Manchin of West Virginia – crossed party lines to vote for her, while two Democratic senators (Claire McCaskill of Missouri and Robert Menendez of New Jersey) did not vote.
I mean it’s really cool that deus vult! is about to become actual legal precedentReport
Did Ford get a law degree?Report
She will almost certainly be confirmed by the start of the October term. I suspect this animates partisans on both sides. She might be as safe a pick as Trump can do but that is not saying much.Report
No surprise there. Only question is if she’ll be to the right of Thomas or ‘merely’ a Thomasian right wing vote on the bench.
Electorally I would assume it’ll be a wash, both sides will get energized about equally.Report
I think she will be more like Alioto, a rigid partisan. Gorsuch and Thomas are idiosyncratic enough that their judicial philosophy takes them in unexpected places.Report
I’m not up on my San Francisco history, but I had thought Alioto was a Democrat.Report
Eagerly awaiting the 5-4 decision that a state declaring Catholicism its official religion doesn’t violate the original meaning of the establishment clause.Report
I hear Jews are sneaky too.Report
Sneaky? Thomas has been saying this quite seriously for years.Report
You wouldn’t think a party could be unfailingly bigoted for more than 150 years and still believe they have the high ground every time. How do they do it? Betray their old allies every generation or two and never look back. It’s always bigotry for the right reasons.Report
It doesn’t. Some states maintained their established religions for decades after the Constitution was ratified. What the establishment clause prohibits is a national established church, which could cause religious friction between states that would never agree on which religion should be the national one.Report
See, that was my hold-out hope, that Mike’s comment was some kind of troll move that was making fun of both bigots and people who don’t know the Constitution. It’s kind of the know-nothing Know-Nothing.Report
Massachusetts disestablished its official, tax-supported, state “Puritan” church on Nov 11, 1833.
The court didn’t move to incorporate the establishment clause into the 14th Amendment’s due process clause until 1940, and their legal argument to do so was extremely tenuous, at best.
You might have assumed that antidisestablishmentarianists were long gone, but reports of our death are greatly exaggerated.Report
Scalding hot take: Many people all over the political spectrum will make massive asses of themselves over this nom when we all know she will be confirmed. Lord knows i’ve seen a dozen varieties this morning.
I’ve seen ijits talking about being a working mom and her kids: ugh. I’ve seen people who were told were brilliant (teddy cruz) saying it’s so important to get this done because the election is going to be decided by the supremes and we need 9. Which is corrupt, disingenuous and tipping their hand on fucking up the election more than is already obvious.Report
Wait, is she an actual working mom, or a working mom like Gwenneth Paltrow (who has a Nanny, a housekeeper, a cook, etc.)?Report
That she, Roberts and Kavanaugh all were involved in the Bush v Gore litigation probably isn’t a co-incidence.Report
That Roberts hated the VRA in his capacity as GOP operative is no coincidence either.Report
The GOP doesn’t put conservatives on the bench, they’ve been appointing cadres. I mean literal cadres in a Leninist sense.Report
What is a constitutionalist Leninist cadre? Can you perhaps elaborate on this description, or does it translate to “poopy head”?
The normal left-right paradigm doesn’t map well to the court, where the questions are things like how much a judge defers to the other branches, how much weight they give to the mindset of the other branches when a law was written, the proper role of the judicial branch and the proper role of a limited government, and how the text of the Constitution should be approached. Some of this is, or was, settled legal doctrine.
But since national socialism is at complete odds with both established law and the Constitution, the left wants justices who will just throw all that in a waste basket and declare socialist utopia to be the new standard.Report
Loyal Party people, trained and molded by the Party for their specific roles, to serve Party interests.
The distinction between them and mere ideologues is significant.Report
Except that judges don’t have anything to do with the party. It’s quite rare for one to even attend a partisan political event. They go to law school, then take a variety of positions throughout their careers. Many conservative justices were appointed by Democrats, and many liberal justices were appointed by Republicans.
David Souter, for example, was a Bush 1 appointee, Stevens was a Ford appointed. Kennedy, a Reagan appointee, got unanimous Democrat support.Report
You’re quite adept at letting the point whoosh over your head when you want to George.
These three justices all had careers as partisan operatives prior to being put on the Federal bench. Its not about judges generally, its about who the GOP grooms to take the highest spots.Report
Oh? Please tell us more.
Then explain why the left keeps calling for people like Barack Obama and Bill Clinton to be appointed. Explain why Biden says his pick will be a black woman, who are apparently indistinguishable from each other because he won’t elaborate.
Then go on to explain why Obama picked Elena Kagan, who was an assistant White House council, then a policy advisor to Bill Clinton, and then a solicitor general for Obama. She’d never heard a single case as a judge prior to being put on the Supreme Court. All her prior work was as a high-level Democrat legal operative. Pretty much the only qualification liberals go by is race, gender, and political activism.
In contrast, the conservatives go for appeals court judges with long trails of legal decisions on the bench.Report
“Loyal Party people, trained and molded by the Party for their specific roles, to serve Party interests.”
Don’t the four liberal justices vote as a block more often than the conservative justices? Why, yes they do!
(Should we question whether they are mere ideologues? Or if they are Party apparatchiks?)Report
I’ve brought this up before, and no one ever answers it. And it’s something that everyone knows by anecdote, even if they don’t know the data. But people can’t quite admit it. Instead they post theories about how Roberts’s latest 5-4 decision actually helps the conservatives because it leaves a window open for them, or that he sided with the liberals in order to be able to write the majority opinion.
Not just Roberts, either. I just ran across this article that shows how Gorsuch and Kavanaugh only agree 70% of the time, compared to Sotomayor and Kagan at 96%.
Most things about ‘How do justices numerically rule on cases’ does not prove anything.
This is because challenges to the law are not issued equally and don’t make their way to the Supreme Court equally. (Also, comparing Gorush and Kavanaugh’s record is fairly silly at _this_ point, statistically speaking. Like…that’s two years.)
And on top of that, there are a large amount of ‘meaningless’ decisions like ‘does the law, as written, cover this thing’, which…I’m sure that’s relevant to the people involved.
But the thing everyone is actually worried about for the Supreme Court is _constitutional_ issues, not whether, as that article listed as one of the example, the ‘Armed Career Criminal Act covers vehicular homicide’. I mean…is anyone disputing it couldn’t? Or it could? Does the current interpretation of the law as it stands matter at all, as the legislature could just change that?Report
Brent F is…rather wrong about how we want judges to act. I think you both are.
You know what that NPR article actually shows? That conservative judges are more likely to wander down paths to justify something that they can’t get _anyone_ else to sign on to, no even fellow conservatives. Alito and Thomas, in particular, seem particularly unlikely to have others follow their logic.
You may think this shows independent thought…but as the same article shows, conservative judges are voting together basically as much as liberal judges. 10% less is not meaningfully less, especially since that’s just one random year.
So why are they voting together but for different stated reasons?
Once you ask that question, there’s really only one good answer: Motivated reasoning.
Each conservative judge wanted to come to that conclusion, but thought the other conservatives did not justify it well, so came up with their own justification.
Pinky actually pointed to an article which mentioned a good example of this, or not this specifically because two judges signed on to part of it, but a good example of the principle: Flowers v. Mississippi
That was decided 7 to 2 in favor of the (very obvious) fact that Flowers had had completely unfair and racially biased juries against him. Repeatedly. Like, this was the sixth goddamn mistrial demand for having racial bias in the selection process, because the damn prosecutor seems literally unable to not preemptively dismiss all black jurors.
Alito, rather reluctantly, voted with the majority, but wrote a concurrence saying ‘not an ordinary case, and the jury selection process cannot be analyzed as if it were’. I.e, he admits the facts of _this_ case, but wants to make it clear…jury selection isn’t _normally_ super-racist. But at least he voted the truth.
Thoma did not, and meanwhile wrote in his opinion that…he thought such obviously biased juries might be acceptable if…well, he came up with a hypothetical ‘what if the jurors all knew the accused’, which, does not appear to have been mentioned at trial, which Gorush signed on to. Then he went further and suggested that Batson v. Kentucky was wrongly decided, which Gorush would not follow.
This…astonishing for all sorts of reasons, and is almost indefensible. For both of them.
This is because the two of them (and Alito, honestly.) are opposed to idea that racial bias should have any sort of legal remedy, and thus end up contorting themselves into all sorts of nonsense when confronted with it.
And the same thing happens on _other_ issues. Conservative judges end up contorting themselves into knots to come up with outcomes they want.
This is opposed to the liberal side, which says ‘The answer to that seems clear’, and everyone agrees usually mostly the same logic. Or when they disagree…they disagree using the same point of law, and they all agree.
Although Sotomayor is interesting, she has a lot of solo concurrences, but those are trickier to judge than solo dissents…was she arguing everyone was right for different reasons, or that everyone was right _and also_ some other thing was true.
Being willing to run off and invent flights of fancy to justify something that you can’t get _any fellow judge_ to sign on to is not…a good thing for the Supreme Court.Report
Conservative judges often come to conclusions they oppose. Scalia hated lots of his own decisions. That’s the whole point, and a sign of a good judge.
Liberal judges rarely seem to reach a conclusion they don’t like, and what are the odds of that?
“The answer seems clear” is generally the wrong answer, or else the case probably wouldn’t have made it all the way to the Supreme Court.Report
So, Republican-appointed justices are predictable to the extent that they clearly don’t care about the law and invent all kinds of reasons not to follow it, and Democratic-appointed justices are independent thinkers who march in lockstep. Or wait, the Republican appointees make up their mind beforehand and use creative ways to get to their pre-determined positions, but in ways that outsiders can anticipate but the justices themselves can’t which is why they can’t coordinate enough to write joint opinions. And Sotomayor does the same thing because she sees the law differently, except when she does it it’s not flights of fancy even though she takes positions the other liberals wouldn’t, but it’s ok because they all end up agreeing (but not being in lockstep, even though the statistics show that they are, although you can’t really trust the statistics, because 10% is practically nothing).Report
You just…completely made up giant blocks of things that you imagine people have said, huh?
I said what I actually said, and I pointed out Brent F is wrong: It is bad for judges to not able to back up decisions with enough facts to get _any_ fellow traveler on board. I stand by this statement.
I don’t stand by anything Brent F said…or at least not how he said it. I’m pretty certain by ‘ideology’ he didn’t mean ‘judges that all agree’, he meant ‘judges that let their political beliefs override their actual legal conclusions’. Which…is not entirely true, but it is true to some level. The problem is not ideology, the problem is when that overrides the function of the court.
Some of the decisions by conservatives are just…absurd levels of reaching, often by outright ignoring or making up _facts_. Like I said, Thomas and Gorouch decided to write about a hypothetical situation of ‘what if all black people knew each other’, something apparently not even hypothesized at trial, and used that as justification for prejudicial behavior.
And Thomas has apparently decided to declare war on precedent, that huge chunks of what the court did were ‘wrongly decided’. Which is…not something anyone else is on board with.
And I did not say Sotomayer’s behavior was ‘okay’, I pointed out that solo dissents people uniquely disagreeing with the majority, whereas solo concurrences are _often_ merely pointing out an extra thing. Which is true for a lot of Sotomayer’s, as far as I can tell.
For example, United States v. Jones, her solo concurring opinion agreed with _the entire rest of the court_ and just added something that basically just said ‘In addition to the physical issue of the the trespass, there are additional considerations about GPS tracking the court might have later about privacy. But the trespass to the car enough is enough to decide this specific case’.
This is a…completely pointless concurring opinion. Same with _another_ of her concurring opinions on _another_ unanimous decision, Outokumpu.
In both of those, she was completely in line with the rest of the court. She’s not taking positions that other liberals (Or even conservatives!) won’t, she just…likes to hear herself talk.
It is possible there are some solo concurrences that do wander off into stupid land, where someone agreed with the rest of the court, but disagreed with that reasoning. So in some abstract sense, it would seem either sort of ‘solo’ statement is bad…except, in practice, solo concurrences are used to just add random unimportant shit that even the writer agrees is not important, whereas solo dissents are most often just compete bugnuts hack motivated-reasoning logic.
And I mean that for when liberals do them, too. For an example of that: Breyer just wanders off into nonsense in Brown v. Entertainment Merchants Association. (So does Thomas, incidentally. Even worse, to the point of asserting that no one has the right to speak to minors without the permission of their parents.)
There were two solo dissents in that case, one from a liberal and one from a conservative, I’m not really sure _either_ of them were ‘partisan’, and they were both completely bonkers and tried to overturn very clear court precedent.Report
Kavanaugh was also one of Ken Starr’s minions.Report
One who predicted that the Senate wouldn’t convict, and urged that a subsequent criminal indictment should not be pursued.Report
Is her husband okay with her being on the Supreme Court?Report
I think we can assume it’s a sacrifice he is willing to make.Report
$255,300 a year? That’s a lot in Iowa. Not so much in Northern Virginia.Report
Yea all these bougie bastards who come to the DMV end up in NoVa. They could live great on that in New Carrollton! And it’s both a shorter drive and straight shot on the metro!Report
I thought that Douthat had a very good article on ACB’s nomination and the rights relationship to feminism.
It’s the kind of counterfactual an SF fan might enjoy: What if the GOP had goals beyond the pursuit of raw power?Report
One of the reasons I referred it is that he forthrightly admits towards the end that conservativism, as it currently exists, doesn’t actually have any principles or positions like what he describes in his musings.Report
Douthat as usual identifies something real but then loses some of the insight by projecting his own wishful thinking into it. There’s something to this piece though. It made me think how much of a shame it is that Elizabeth Warren devolved into so much less than what she started out as.
There’s a force out there of working women (and those who love them) that isn’t well represented in our politics. Too moral and modern for the GOP, not enough of a special interest or coherent enough identity for the Democrats.Report
I think the reality is the “working woman” is to be found everywhere, not bound by race or class, party or principle. And if you tried to pigeon hole them into a voting block, you would quickly find that the identity falls away quickly in service to other needs.Report
That’s absolutely what happens right now. But if there’s a realignment I think their interests are central to it. I don’t think it will be identity-based though so much as economic based. Someone will chime in and say that there are plenty of people in America getting a worse deal than middle class working mothers/families and that’s true. But they are a large group whose interests aren’t a priority for either of the parties.Report
I wonder if this is because despite much overlap among the many challenges that “working women” face, there is likely a range of solutions that they may be looking for that would move them into different groups.
And maybe that isn’t unique to “working women” as a group but maybe is just happening more with them.Report
I’m quite there with you on all those points.Report
I like to do the same sort of things (Like, what if conservatives had embraced gay marriage as marriage and started acting worried about gay people living in sin outside marriage.) and all sorts of things.
But I’m not really sure this works, mostly because it does indeed postulate the Republicans as some sort of political party with specific goals. But, forgetting that for a second…what would conservative women want, in a hypothetical conservative party that responds to them? I can come up with a few unique things.
Things like ‘childcare options’, ‘expanding and supporting the foster system and making adoption easier and cheaper’ and ‘helping young women into STEM’, and things like that.
This would be on top of some ‘normal’ feminism issues like ‘taking sexual assault seriously’ and ‘paying women the same for the same work’.
Honestly, everything I can think of for ‘conservative women’ is just normal feminism except tilted toward supporting children and parenting, and tilted away from ‘sexual liberation’ type things, if that makes sense.
The problem is that the GOP is not only not particularly good at normal feminism, but the things conservative women want done…are often social services of some sort.
Thus, these things cannot possibly be supported by the GOP.
I’ve probably mentioned this here before, but I have some pro-life somewhat ‘conservative’ relatives. They don’t vote for Republicans? Why? Because Republicans are trying to take away the Medicaid for their disabled child, that they need to to stay afloat.Report
The idea that women would be automatically liberal-left voters in mass, upending the traditional social order, was something that men in Anglophone countries feared but not really men in other countries in the days before suffrage. In Catholic countries like France, men believed that they needed to deny women the right to vote because they would just vote for who their priest told them too. Likewise, many fascist parties including you know who had a big group of female support. So I think you are right, conservatism feminism is basically normal feminism plus domesticity rather than anti-domesticity.Report
Dave is much closer to the mark. It isn’t feminism plus domesticity versus feminism minus domesticity. It’s accounting for the the hard trade-offs families and particularly women have to make by virtue of entry into higher education and the workforce while still being the child bearing sex. Two-Income Trap stuff much more than the ideology of identity and gender. Like Dave says, the GOP has no answer or even interest in this question. But mainstream Democrats can also treat the conversation as quite reactionary when it strays outside of very narrow parameters.Report
The GOP is pretty much out of ‘answers and interests in questions’ at all at this point.
I don’t think they really do, I just think the media acts like they do. The elected Democratic politicians are not reactionary at all about feminism….a good chunk of them are in a mentality of second-wave feminism, i.e., somewhere between 1970 and 1991.
I think the only hard-line Democratic pols are willing to draw is abortion rights. Which is very second wave….I mean, that hasn’t changed in later waves, but it’s originating from there.
Feminism meanwhile is, as usual, about 10-20 years ahead of where the public is, and the media, especially the right-wing media, will always take a good deal of joy in pointing out the ‘extremism’ of ‘left-wing feminism’. (Which will mysteriously stop being talked about as extreme in 20 years or so.)
Or, to put it another way, a ‘wave’ of feminism end when society catches up to them…and third wave ended somewhere around 2005-ish. That’s where society currently is. Although, we arguably haven’t reached the end of third-wave yet, which is probably is why the boundary between it and fourth- is blurry…because we, as society, decided against letting men abuse their positions of power to hurt women (Which is why third-wave started back in 1991 with the nomination of Bork.)…and then society promptly never did anything about that, ever.
Republicans (And this nominee), of course, are wandering around back at first-wave feminism, where women should have the right to vote and not be assaulted by men (In theory, at least.) but have a specific place in society that’s not the same as men.Report
In countries were women have the most rights and freedoms, and have enjoyed their status the longest (Scandinavia), the gulf between female and male career choices is the largest.
It seems that women prefer being fashion designers, hairdressers, teachers, nurses, and doctors way more than they like brick laying, logging, truck driving, and commercial fishing. Go figure.Report