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Judge Amy Coney Barrett

Amy Coney Barrett—“You’re No Ruth Bader Ginsburg” (Apologies to the late Sen. Lloyd Bentsen {D-TX }) October 14, 2020

After liberal Supreme Ct. Justice’s Ruth Bader Ginsburg’s 9/18/2020 death, Trump and his “GHP,” G rand H ypocrite P arty that now control both the Senate and White House made “no bones” about filling her seat with right-wing Justice Amy Coney Barrett. Such a confirmation would occur less than one month away from the crucial 2020 presidential election. In fact, before the start of Barrett’s fast-track confirmation hearing, millions of ballots had already been cast in several states. If Barrett is confirmed, GOPers will have a 6-3 hard conservative majority which could easily overturn Roe v. Wade and Obamacare, for starters, and keep the High Court reactionary for several decades. Barrett could also be on the Supreme Court of the United States (SCOTUS) in time to rule in Trump’s favor in disputed election cases that could come before the High Court (See huffpost.com, Jones, J., 10/11/20). In her opening statement, delivered to the Senate Judiciary Committee on 10/12/2020 Judge Barrett said, “I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place. I will be forever grateful for the path she marked and the life she led (cnn.com 10/11-10/12/20, Duster, Brown, & deVogue).” Barrett’s statement about the late Justice Ginsburg rightly praises her predecessor’s legal record. Barrett’s words about Ginsburg, however, are just an attempt to burnish her own image to make her look more “reasonable.” Judge Barrett is “no Ruth Bader Ginsburg” and never will be. Let’s look at her true record.

Amy Coney Barrett (48) was born and raised in New Orleans. She is the oldest of seven children, with five sisters and one brother. Her father Michael Coney was an attorney who worked for Shell Oil Company. Devout Catholic Barrett graduated from St. Mary’s Dominican High School, where she was student body vice president (nola.com, clarionherald.org, 9/19/17, Aymond). She received her B.A. undergraduate degree magna cum laude from TN’s Rhodes College and was elected to Phi Beta Kappa. She received a 1997 law degree from Notre Dame University in South Bend, IN. At Notre Dame, she graduated first in her class and served as executive editor of the Notre Dame Law Review (scotusblog.com, 7/2018, law.nd.edu/directory-barrett, 9/02/12). After graduating from law school, Barrett served as a law clerk to conservative D.C. Circuit Court of Appeals Judge Laurence Silberman and then spent a year as a law clerk to Supreme Court Justice Antonin Scalia, a major conservative ideologue. She practiced law from 1999-2002 in D.C. (afj.org, Barrett bio, 9/02/12, Lat, D., abovethelaw.com, 5/06/17, Carr, web.archive.org, 7/26/04). Barrett served as a visiting associate professor and John M. Olin Fellow in Law at George Washington University Law School for a year. Olin is one of the conservative think tank groups that funds and endorses right-wing groups in colleges (Mayer, “Dark Money,” 2017).

In 2002, Barrett returned to Notre Dame Law where she taught federal courts, constitutional law, and statutory interpretation. She was named a full Professor of Law in 2010. Her scholarship focused on constitutional law, originalism, statutory interpretation, and stare decisis, the doctrine of letting most established legal rulings stand to give the law continuity. She has published articles in the Columbia, Cornell, Notre Dame, and Texas Law Reviews. A 2003 article she wrote dealt with “Stare Decisis and Due Process,” 74 U. Colo. Law Review (law.nd.edu/directory, wsj. Com, Nicholas & Radnofsky, 7/05/18, scholarship.law.nd.edu/law, Barrett, 2003). She has a long “paper trail.”

On 5/08/2017, Trump nominated Barrett to serve on the U.S. Court of Appeals for the Seventh Circuit, which covers appeals from Federal District Courts in Illinois, Wisconsin, and Indiana (ballotpedia.org). Since joining the Federal 7th Circuit, Barrett has been aware that she was under consideration for a SCOTUS appointment. She has gone out of her way to demonstrate her conservative plus stands. In 2019, Barrett alone dissented from a Second Amendment challenge from a man found guilty of felony mail fraud and prohibited from possessing a firearm under WI law. In a dissent, in that Kanter v. Barr decision, she wrote, “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.” Using an originalist approach that looked to 18th Century intentions, Barrett argued, “But that power extends only to people who are dangerous. Founding legislatures did not strip felons of the right to bear arms simply because of their status as felons. Holding that ban is constitutional…does not put the government through its paces, but treats the Second Amendment as a second-class right (cnn.com, Biskupic, 9/26/20).” Last term, Chief Justice Roberts kept the hard-right group of Justices Alito, Thomas, and Kavanaugh from taking up cases where states regulated firearm bans. Count on Barrett to be the fourth vote to grant a hearing (certiorari) on such cases and limiting many state regulations of dangerous firearms. In another dissent from the 7th Circuit majority, Barrett stood for Trump’s rigid anti-immigrant views of what constituted a “public charge.” Her opinion would have made many immigrants ineligible for permanent status in the U.S. (See Biskupic, cnn.com). Again, count on Barrett to bolster SCOTUS’ anti-immigrant stances.

Unlike lower federal court justices, members of SCOTUS are not bound by any specific set of conflict of interest laws. It is up to each SCOTUS member to decide whether or not to recuse himself/herself from the cases that come before them. In 2012, Barrett supported the Becket Fund for Religious Liberty’s opposition to the Obama administration’s attempt to accommodate religious interests in the Affordable Care Act’s contraceptive coverage mandate. When asked whether she would recuse herself from ongoing litigation over the Affordable Care Act (ACA/Obamacare) birth control mandate, Barrett stated that she could be “impartial” on disputes she had earlier spoken out about. In a 2017 law review essay in which she reviewed a book related to SCOTUS’ ruling on the Affordable Care Act, Barrett strongly criticized Chief Justice Roberts’ rationale that saved the law in 2012. In words that she carefully wrote and reviewed, Barrett stated, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power.” Should Barrett be confirmed before Election Day, 11/03/2020, or right after it, she would hear the third attempt to overthrow Obamacare on 11/10/2020. She would probably join the four hard-core conservatives (Alito, Thomas, Gorsuch, and Kavanaugh), to overturn it and deprive millions of Americans of vital medical care in the midst of the COVID-19 pandemic (See cnn.com, Biskupic, cnn. com 9/26/20). Barrett has not indicated that she will recuse herself from any election cases involving Trump that come before the High Court. Demagogue Donald is already arguing that mail-in-votes are “rigged” and illegal. Scalia himself, Barrett’s legal guide, was not known to go out of his way to recuse himself from possible conflict of interest cases.

Barrett was not picked by Demagogue Donald just for her scholastic record. Yes, her being a woman who is replacing another woman, Ruth Bader Ginsburg, looks good to the general public. And yes, her being a mother with seven young children, some adopted, and one with Down’s Syndrome is very appealing. However, the key reason she was picked to replace Ginsburg is for her right-wing plus ideology that would destroy everything Ginsburg fought for. Judge Barrett, 48, would be the youngest member of the current SCOTUS and serve for decades, long after Donald and many of his GOP cronies have passed on (See nytimes.com, Baker & Fandos, 9/26/2020).

Barrett was a member of the ultra-right Federalist Society from 2005-2006 and from 2014-2017 (scotusblog.com, 7/04/18). Demagogue Donald’s lists of judicial appointees have been vetted by the Federalist Society, which according to many people is the in-house organ for Donald’s judicial selections (See Begala, P.). The Federalist Society stands for letting big business go unfettered, for demolishing the wall between church and state, for repealing Roe, and for overturning Obamacare. Justice Scalia, for whom Barrett was a favorite law clerk, was an early Federalist Society backer. Scalia was against allowing LGBTQ marriages as are the already conservative members of SCOTUS, including Chief Justice Roberts. At her introduction to the public at a 9/26/2020 White House Rose Garden affair, which helped widely spread the COVID-19 virus, Barrett told the audience, “His (Scalia’s) judicial philosophy is mine too—a judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold (nytimes.com, 9/26/20, Baker & Fandos).” Translation: Scalia’s view of what he called the “Dead Constitution.” Right wing drivel. The Founding Fathers were divided on many crucial issues of their day. They knew that the generations after them would be faced with matters they could not possibly imagine. That’s why they put in the Constitution a procedure for amendments and gave Congress wide authority in passing laws that are “necessary and proper” to fulfill their enumerated duties (U.S. Const. Art. I, Sec. 8).

Judge Barrett, who has devoted much scholarship to stare decisis, seems to give little emphasis to that doctrine, which translated from the Latin, means “let the case or precedent stand.” In a 2013, law review article, Judge Barrett noted that stare decisis is “not a hard-and-fast rule in the court’s constitutional cases.” She added that stare decisis’ power is diminished when the case under review is “unpopular.” Barrett went on to write that “the public response to controversial cases like Roe, reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle (nytimes.com, Liptak, 9/26/20).” In that same article, Judge Barrett stated, “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” In that very same article, Judge Barrett mentioned a group of decisions that she said were “included on most hit lists of super-precedents.” Roe v. Wade was not mentioned by her among those super-precedents (latimes.com, 9/25/20). Donald, his legal assistants, or their Federalist Society allies clearly believe she would overturn Roe, if given the chance. Barrett’s legal mentor Justice Scalia wrote that the Constitution had “nothing to say about abortion and that states should be allowed to decide the question for themselves.” There is no reason to believe that Judge Barrett disagrees with Scalia (nytimes.com, Liptak, 9/26/20).

And there is reason to believe that Judge Barrett attempted to hide her anti-abortion record while undergoing Senatorial hearings for Ginsburg’s SCOTUS’ seat. Two Democratic committee aides told NBC News that in 2006 Barrett had failed to disclose her signature in a 2006 two-page ad published in the South Bend Tribune of Indiana. In that ad, her name was included in a long list of those in support of calling for Roe v. Wade to be overturned and ending its “barbaric legacy.” This ad with her signature should have been included in response to a question in the forms sent out by the Senate asking for citations of “books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited (nbcnews.com, Przybyla, 10/01/20).” Barrett later admitted that she had also spoken at two events held by anti-abortion student groups at Notre Dame University in 2013 (huffpost.com). Imagine if a Democratic SCOTUS nominee had withheld information that he/she had spoken to pro-choice groups or signed an ad asking SCOTUS to uphold Roe. Current Senate Judiciary Chair Lindsey Graham (R-SC) and others would have called for that nominee to withdraw. However, IOKIYAR, “It’s Okay If You’re a Republican.” Judge Barrett joined opinions expressing misgivings about rulings striking down IN anti-abortion laws. In those cases, the full 7th Circuit declined to rehear the panel decisions striking down these anti-abortion laws. In one case, the panel blocked a law tightening the requirements for notifying parents of minors seeking abortions. Barrett joined dissents concerning two other IN laws. One case banned abortions sought solely because of the fetus’ sex or disability. The other case required abortion providers to bury or cremate fetal remains, a law signed by then IN GOP Gov. Mike Pence. Barrett called the fetal remains law “entirely rational.” She argued that the 7th Circuit panel would have “sustained the statute if it had concerned the remains of cats or gerbils (nytimes.com, Liptak, 9/26/20).”

At her confirmation hearing, Judge Barrett ducked answering key questions on how she would rule on major cases. However, with her prior “paper trail” and answers at the hearing, there were more than subtle hints on how she felt about Roe v. Wade being non-reversible precedent. When asked by Sen. Amy Klobuchar (D-MN) about the article she had written about “super-precedents” where she omitted Roe from that category, Barrett replied: “The way I was using it in the article that you’re reading from was to define cases that are so well settled that no political actors and no people seriously push for their overruling. And I’m answering a lot of questions about Roe, which I think indicates Roe doesn’t fall in that category. And scholars across the spectrum say that doesn’t mean that Roe should be overruled, but descriptively it does mean it’s not a case that everyone has accepted and doesn’t call for its overruling (cnn.com, Herb & Foran, 10/13/20).” Get it? According to Barrett, Roe is not “so well settled,” because “political actors and people seriously push for its overruling.” As Barrett added, Roe is “not a case that everyone has accepted” which keeps it out of the super-precedent category. Such categorization by Barrett would make it far easier for her to overrule Roe. Even Chief Justice (CJ) Roberts called Roe precedent at his confirmation hearings. Barrett, again, is no Justice Ginsburg, and just for this answer alone, her SCOTUS confirmation should be rejected.

Barrett strongly criticized CJ Roberts for his opinion upholding Obamacare. She argued, however, that that doesn’t mean she would overturn this legislation in the case coming before SCOTUS next month. She said her writing attacking CJ Roberts for upholding Obamacare was “in an academic setting” and had no bearing on the upcoming legal challenge (cnn.com, Herb & Foran, 10/13/20). Ridiculous! Law professors, in addition to teaching law, are hired to write law review and other scholarly articles that discuss in great detail why opinions issued by SCOTUS were rightly or wrongly decided. These articles are very carefully reviewed and discussed by the author and fellow law professors before they are published. They are not mere hypotheticals tossed out in a classroom so students can sharpen their legal reasoning. These articles are meant to influence legal and public opinion. They often argue that a SCOTUS decision in which a similar issue comes up again must be reversed because the legal reasoning was way off the mark, which Barrett did in her article attacking CJ Roberts’ 2012 Obamacare ruling. A law review article by a law professor is not undertaken as a lark. It is serious business and is treated that way by fellow attorneys and opinion makers. Barrett’s article strongly indicates that she would help overturn Obamacare and deny millions of Americans life-saving care in the name of ideology. Again, Barrett is no Justice Ginsburg and her SCOTUS confirmation should be rejected.

Barrett declined to say whether the Constitution gave Trump the authority to postpone the date of the election, which he can’t do without an act of Congress. Instead, she stated she would read the briefs of the opposing parties, talk to her law clerks, and discuss this with her fellow Justices. She argued that if she answered this question, she would be “basically a legal pundit (See cnn.com, Herb & Foran, 10/13/20).” No, Judge Barrett. You would be standing up for democracy and the rule of law. Sen. Patrick Leahy (D-VT) noted that Trump has said he needed his SCOTUS nominee confirmed because he thinks Democrats “will try to steal the election from him” and that questions about the ballots cast may end up in the High Court. Barrett, nominated by Trump, did not answer this question. Instead, she said she would “faithfully work through the process of deciding what to do” on this matter (nytimes.com, Savage, 10/13/20). If questions of disputed ballots come before SCOTUS, Barrett’s ruling in this case, after Trump’s blatant comments, would look like a clear conflict of interest. However, there would be no appeal possible for Barrett’s failure to step aside or recuse herself from this litigation. Once again, Barrett is no Justice Ginsburg and her SCOTUS nomination should be rejected.

Throughout her Senate Judiciary Committee confirmation hearing, Barrett continued her “Art of the Dodge.” When asked by Sen. Patrick Leahy (D-VT) whether a president who attacked the judiciary and refused to enforce the power of rulings by courts, Barrett replied with the cliché, “No man is above the law.” She added, “as a matter of law, the Supreme Court may have the final word, but lacks control about what happens after that.” When Sen. Leahy asked whether such defiance by a president of a court ruling would pose a threat to the constitutional system of checks and balances, Barrett would not directly answer. Instead, Barrett declared, “As I said, the Supreme Court cannot control whether a president obeys.” She added that even Abraham Lincoln had once disobeyed a lower court order during the Civil War. Wow! Barrett’s discussing Lincoln’s defiance of SCOTUS gives her patron Trump even more of a “reason” to defy SCOTUS’ opinions. Barrett refused to answer Sen. Leahy on whether a president had “an absolute right” to pardon himself, as Trump often claims. When Sen. Leahy asked Barrett about whether tens of millions of dollars in business currently done by Trump’s hotels and clubs with foreign entities was a violation of the Constitution’s emoluments clause, Barrett again refused to give her opinion (nytimes.com, Fandos, 10/14/20). LA GOP Senator John Kennedy asked Barrett her views about climate change, another issue that could come before her on the High Court. Barrett replied, “I am certainly not a scientist. I have read things about climate change but I would not say I have firm views on it,” words that mirror GOP talking points (nytimes.com, 10/14/20). Again, Barrett is no Justice Ginsburg.

Both Democrats and Republicans know that the GOP/Trumpian Senate majority will vote in near lock step to confirm Barrett before Election Day and the Democrats are powerless to stop them. Democrats have lost this battle. However, they must win the ultimate war. Democrats are now voting in droves plus and must continue to do so to defeat Demagogue Donald and take back the Senate that confirms SCOTUS nominations. Then all measures, including abolishing the filibuster and adding at least two judges to the SCOTUS bench to make up for Garland’s stolen seat and that of Ginsburg must be in play. SCOTUS must not go back to the pre-1930 era with the addition of Barrett. GOPers are the ones truly packing SCOTUS and lower federal courts to make them ultra-reactionary, not Democrats.