Trump To Nominate Amy Coney Barrett to SCOTUS

Andrew Donaldson

Born and raised in West Virginia, Andrew has since lived and traveled around the world several times over. Though frequently writing about politics out of a sense of duty and love of country, most of the time he would prefer discussions on history, culture, occasionally nerding on aviation, and his amateur foodie tendencies. He can usually be found misspelling/misusing words on Twitter @four4thefire and his food writing website Yonder and Home. Andrew is the host of Heard Tell podcast. Subscribe to Andrew's Heard Tell SubStack for free here:

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50 Responses

  1. The question says:

    I mean it’s really cool that deus vult! is about to become actual legal precedentReport

  2. Dark Matter says:

    The newspaper quoted legal experts who worried that such oaths “could raise legitimate questions about a judicial nominee’s independence and impartiality.”

    Did Ford get a law degree?Report

  3. Saul Degraw says:

    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

  4. North says:

    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

  5. 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

    • Pinky in reply to Mike Schilling says:

      I hear Jews are sneaky too.Report

    • George Turner in reply to Mike Schilling says:

      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

      • Paul Medzerian in reply to George Turner says:

        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

        • George Turner in reply to Paul Medzerian says:

          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

  6. greginak says:

    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

  7. Brent F says:

    That she, Roberts and Kavanaugh all were involved in the Bush v Gore litigation probably isn’t a co-incidence.Report

    • Mike Schilling in reply to Brent F says:

      That Roberts hated the VRA in his capacity as GOP operative is no coincidence either.Report

      • Brent F in reply to Mike Schilling says:

        The GOP doesn’t put conservatives on the bench, they’ve been appointing cadres. I mean literal cadres in a Leninist sense.Report

        • George Turner in reply to Brent F says:

          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

          • Brent F in reply to George Turner says:

            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

            • George Turner in reply to Brent F says:

              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

              • Brent F in reply to George Turner says:

                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

              • George Turner in reply to Brent F says:

                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

            • Aaron David in reply to Brent F says:

              “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

              • Pinky in reply to Aaron David says:

                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%.


              • DavidTC in reply to Pinky says:

                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

              • DavidTC in reply to Aaron David says:

                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

              • George Turner in reply to DavidTC says:

                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

              • Pinky in reply to DavidTC says:

                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

              • DavidTC in reply to Pinky says:

                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

        • Mike Schilling in reply to Brent F says:

          Kavanaugh was also one of Ken Starr’s minions.Report

  8. Jaybird says:

    Is her husband okay with her being on the Supreme Court?Report

  9. North says:

    I thought that Douthat had a very good article on ACB’s nomination and the rights relationship to feminism.

    • Mike Schilling in reply to North says:

      It’s the kind of counterfactual an SF fan might enjoy: What if the GOP had goals beyond the pursuit of raw power?Report

      • North in reply to Mike Schilling says:

        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

        • InMD in reply to North says:

          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

          • Aaron David in reply to InMD says:

            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

            • InMD in reply to Aaron David says:

              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

            • Kazzy in reply to Aaron David says:

              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

          • North in reply to InMD says:

            I’m quite there with you on all those points.Report

      • DavidTC in reply to Mike Schilling says:

        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

        • LeeEsq in reply to DavidTC says:

          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

          • InMD in reply to LeeEsq says:

            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

            • DavidTC in reply to InMD says:

              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.

              The GOP is pretty much out of ‘answers and interests in questions’ at all at this point.

              But mainstream Democrats can also treat the conversation as quite reactionary when it strays outside of very narrow parameters.

              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

              • George Turner in reply to DavidTC says:

                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