Amy Coney Barrett’s Confirmation Hearings Were a Master Class in Political Posturing

“After a week of hearings, it’s very unlikely that the public understands Barrett better now than they did on Monday, considering that the committee spent more time posturing than probing the judge’s judicial philosophy. Grandstanding may be an effective political strategy, but it didn’t tell us anything useful or significant about Barrett, and it won’t affect the outcome of her confirmation vote.”

How Conservative Is Amy Coney Barrett?

““Things could be different with more data, of course,” said Clark. But overall, he thought her ideological profile was remarkably clear. “She’s voting very consistently in these cases so far. Even with this small number of cases, she’s showing up on the far right edge of the court.”

It’s hard, of course, to directly extrapolate from Barrett’s record as an appellate judge to how she might rule as a Supreme Court justice, but it’s reasonable to expect she will be reliably conservative. That said, Barrett has not always ruled in line with fellow conservatives on the 7th Circuit, and even the conservative justices on the Supreme Court disagree with each other on some topics or differ on which issues are more important. It remains to be seen just how persuadable Barrett might be if she’s confirmed, or how her perspective might change after a few years on the bench.”

Amy Coney Barrett describes climate change as a “very contentious matter of public debate”

“Barrett’s refusal to express her stance on climate change comes in spite of the overwhelming scientific evidence on the subject.

“I don’t think that my views on global warming or climate change are relevant to the job I would do as a judge, nor do I think I have views that are informed enough,” Barrett has also said.

As the New York Times’s John Schwartz wrote, however, her approach to the subject could be important in future cases: “In past decisions, the justices have accepted that human-caused climate change is occurring and determined that the Environmental Protection Agency can regulate greenhouse gases in the case Massachusetts v. E.P.A., but a more conservative Supreme Court might revisit the issue.”

What Barrett did say ended up echoing the way many Republicans have approached the subject of climate change in the past: She declined to comment on whether humans contributed to global warming, an evasion that still seemed to signal quite a lot about where she stands.”

Amy Coney Barrett’s opposition to Obamacare, explained

“Supreme Court nominee Amy Coney Barrett is a critic of Roberts’s decisions upholding most of Obamacare. In a book review published in 2017, for example, Barrett denounced Roberts’s opinions in both NFIB and King, claiming the chief justice “pushed the Affordable Care Act beyond its plausible meaning to save the statute” in the first decision.

If Obamacare is struck down, roughly 20 million Americans will lose health coverage — a likely conservative estimate, as it does not count many people who have lost their employer-provided health insurance during the Covid-19 pandemic.

Questions over Obamacare have taken a starring role in Barrett’s confirmation hearing. Democratic senators have repeatedly brought up Barrett’s objections to the NFIB and King decisions and frequently referred to California v. Texas, a third case attacking Obamacare that the Supreme Court will hear in November.

Barrett didn’t deny criticizing the NFIB and King opinions, but suggested that perhaps she didn’t engage in particularly rigorous analysis when she attacked those two decisions.

After Sen. Amy Klobuchar (D-MN) asked Barrett about a 2015 NPR interview in which the future judge claimed the dissenting justices had the “better of the legal argument” in King, Barrett said she was merely a law professor when she made that statement. “A professor professes and can opine,” Barrett claimed, adding that she did not go through the “judicial decision-making process” when she determined that King was wrongly decided.”

“Barrett’s record..suggests she is a long-term threat to the viability of the ACA — even though the Court may very well still reject the unusually shaky legal arguments in Texas.”

What Trump has done to the courts, explained

“In less than four years as president, President Trump has done nearly as much to shape the courts as President Obama did in eight years.

Trump hasn’t simply given lots of lifetime appointments to lots of lawyers. He’s filled the bench with some of the smartest, and most ideologically reliable, men and women to be found in the conservative movement. Long after Trump leaves office, these judges will shape American law — pushing it further and further to the right even if the voters soundly reject Trumpism in 2020.”

“Both Obama and Trump appointed two justices to the Supreme Court, but Trump’s impact on the highest Court far exceeds Obama’s, because Trump replaced the relatively moderate conservative Justice Anthony Kennedy with the hard-line conservative Brett Kavanaugh (after appointing conservative Neil Gorsuch to fill Antonin Scalia’s vacant seat). Obama’s appointees — Sonia Sotomayor and Elena Kagan — largely maintained the balance of power on a conservative Court, while Trump has shoved that Court even further to the right.

And that’s not counting Trump Supreme Court nominee Amy Coney Barrett, who is likely to be confirmed soon.

On the courts of appeal, the final word in the overwhelming majority of federal cases, more than one-quarter of active judges are Trump appointees. In less than four years, Trump has named a total of 53 judges to these courts, compared to the 55 Obama appointed during his entire presidency.

In their first terms, Obama appointed 30 appellate judges; President George W. Bush filled only 35 seats on the federal appellate bench; President Clinton, 30; President George H.W. Bush, 42; and President Reagan, 33.”

“Before he became president, Trump promised to delegate the judicial selection process to the Federalist Society, a powerful group of conservative lawyers that counts at least four Supreme Court justices among its members. “We’re going to have great judges, conservative, all picked by the Federalist Society,” Trump told a radio show hosted by the right-wing site Breitbart while he was still a candidate.

The Federalist Society spent decades preparing for this moment, and they’ve helped Trump identify many of the most talented conservative stalwarts in the entire legal profession to place on the bench.”

” “The average age of circuit judges appointed by President Trump is less than 50 years old,” the Trump White House bragged in early November, “a full 10 years younger than the average age of President Obama’s circuit nominees.”

Trump’s nominees will serve for years or even decades after being appointed. Even if Democrats crush the 2020 elections and win majorities in both houses of Congress, these judges will have broad authority to sabotage the new president’s agenda.

There is simply no recent precedent for one president having such a transformative impact on the courts.”

“Broadly speaking, there are two reasons Trump has had such an outsize influence on the federal courts.

The first reason is the effective blockade Senate Majority Leader Mitch McConnell imposed on appellate court confirmations the moment Republicans took over the Senate. McConnell’s effort to block Supreme Court nominee Merrick Garland is well-known. Less well-known are the many lower court nominees who received similar treatment. Under Trump, McConnell has turned the Senate into a machine that churns out judicial confirmations and does little else — he’s ignored literally hundreds of bills passed by the House. Under Obama, by contrast, McConnell’s Senate was the place where judicial nominations went to die.

The numbers here speak for themselves. In the final two years of the Obama presidency, when Republicans controlled the Senate, Obama successfully appointed only two federal appellate judges — and one of those judges, Kara Farnandez Stoll, was confirmed to a highly specialized court that primarily deals with patent law.

By contrast, 10 such judges were confirmed during the same period in the George W. Bush presidency, a period when Democrats controlled the Senate.

The second reason for Trump’s outsize impact on the judiciary is that when Democrats last controlled the Senate, one especially important Democrat — Judiciary Chair Patrick Leahy (VT) — took an unusually expansive view of the rights of the minority party.”

“Leahy, who chaired the Committee for most of the Obama presidency, gave home-state senators a simply extraordinary power to block judicial nominees. Under Leahy, a single senator of either party could veto any nominee to a federal judgeship in their state”

“Red-state Republicans used the power Leahy gave them to hold many judicial seats open until Obama left office. Sen. Ron Johnson (R-WI) effectively held a seat on the United States Court of Appeals for the Seventh Circuit open for eight years until Trump could fill it.”

“The Eastland Rule also weakened Obama’s hand in negotiations with Senate Republicans, and sometimes forced him to name relatively conservative judges in order to placate senators who could veto judicial nominees.”

“While Trump has been very successful at filling the bench with brilliant Republican partisans, a Democratic president is unlikely to enjoy similar success.

A badly malapportioned Senate means that to get even a bare majority in the Senate, Democrats have to win commanding popular vote majorities — and if Democrats don’t control the Senate, Democratic nominees could face the Merrick Garland treatment. Just look at the last two years of the Obama presidency if you want to know how a Republican Senate is likely to treat Democratic judicial nominees.”

Stealing a Supreme Court Seat is Asking for Court Packing

“With Merrick Garland, the Republican Senate prevented a president from appointing a judge, then a president of that senate’s party came into office and filled the seat. This action broke the norms and constitutional intent of Advice and Consent. That was a stolen seat.

The stealing of Merrick Garland’s seat deeply damages the legitimacy of the Supreme Court. In a two-party system with the judiciary not completely separated from the ideology and policy goals of the political parties, abusing Advice and Consent to hand a Supreme Court seat from one party to another greatly damages the legitimacy of the Supreme Court.”

“Court packing now, can be seen as a mechanism to right a wrong — to restore the partisan divide to what it should have been if not for the Republican Senate’s illegitimate action.”

“I suspect court packing would just lead to a series of court packing and an ever-expanding court and potentially undemocratic escalation that leads to the downfall of the republic…so I’m still against court packing”

“[But,] I understand why a democratic congress and presidency would look at the Supreme Court with its stolen seat, with its undemocratic minority-nominated justices, and with potentially its overturning of the Democrats’ most basic agenda…I understand why democrats would then say that U.S. democracy under the thumb of the Supreme Court as currently constructed is already illegitimate, so court packing is justified as the best way to save democracy.”

The Supreme Court is about to hit an undemocratic milestone

“The confirmation of Supreme Court Justice Clarence Thomas, back in 1991, was a squeaker: 52 yeas, 48 nays — the narrowest margin in over a century.

The senators who voted to put him on the bench had won their most recent elections with a combined tally of 42 million votes. But the senators who voted “nay” were elected by 46 million. Thomas became the first Supreme Court justice to be confirmed by a bloc of senators who had been elected by a minority of voters.

Then it happened again. And again and again. The senators who confirmed Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh received millions fewer votes than the senators who opposed their confirmations.

Ruth Bader Ginsburg’s replacement seems certain to join the ranks of these “minority justices.” Even if President Trump’s nominee, Amy Coney Barrett, wins the support of every Republican senator, including moderate hold-outs like Lisa Murkowski and Susan Collins, all those senators combined received 13 million fewer votes than their colleagues across the aisle.

With this new confirmation, the Supreme Court will enter a particularly undemocratic new era. For the first time since senators were directly elected, a controlling majority of the court will have been put there by senators who most voters didn’t choose. (And of course, the last three will have been nominated by a president who lost the popular vote by nearly 3 million votes.)”

The one thing Democrats can do to stop Trump from replacing Justice Ginsburg

“The Constitution provides that there must be a Supreme Court, but it does not set the number of justices — that number is set by Congress. The Judiciary Act of 1789 originally established a six-justice Court, and this number vacillated considerably during the nation’s first century. The number of justices briefly grew to 10 during the Lincoln administration, before finally settling at nine under President Ulysses S. Grant.

If Democrats control the White House and the Congress, in other words, they can pass a law adding seats to the Supreme Court. If Biden is president, he could then quickly fill them (with the consent of the Senate). And four new seats could give Court a Democratic-controlled majority, despite another Trump pick.

It’s a risky play. At the height of his popularity, President Franklin Roosevelt proposed expanding the size of the Supreme Court to 15 in order to neutralize five reactionary justices who frequently undercut the New Deal. It did not end well for him. Many historians cite the court-packing plan as the event that shattered Roosevelt’s political coalition and left him unable to pass liberal bills through Congress.

But these are very different times. In 1937, when Roosevelt proposed packing the Court, every one of the Court’s nine justices could claim that they got there fair and square. No one was on the Supreme Court because one political party invented a fake rule, applied it harshly to a president they loathed, and then immediately scrapped that rule when it was inconvenient.

Trump’s two previous Supreme Court appointees, Justices Neil Gorsuch and Brett Kavanaugh, also share a dubious distinction. They are the only members of the Supreme Court in history to be nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country. If Trump fills the Ginsburg seat, fully one-third of the Court will be controlled by judges with no democratic legitimacy.”

To achieve racial justice, America’s broken democracy must be fixed

“The Senate and Electoral College systematically underweight the votes of people of color — and the judiciary operates directly downstream of those biases. Washington, DC, home to the largest plurality of Black Americans in the country, is excluded entirely from federal representation. The filibuster has historically been used to block or delay anti-lynching laws and civil rights legislation”

“Since 2000, 40 percent of presidential elections have been won by the loser of the popular vote. A 2019 study found that Republicans should be expected to win 65 percent of presidential contests in which they narrowly lose the popular vote, and could potentially win while losing the popular vote by as much as 6 percentage points. And this November, FiveThirtyEight’s Nate Silver calculates that Democratic nominee Joe Biden only has a 6 percent chance of winning the Electoral College if he wins the popular vote by 0 to 1 points, a 22 percent chance if he wins by 1 to 2 points, and less than a 50 percent chance if he wins by 2-3 points.”

“The Senate is even more extreme. In a 2019 Data for Progress analysis, Colin McAuliffe found that the Senate has a 3 percentage point tilt toward Republicans (double the 1.5 percent skew in the Electoral College). And that is probably an understatement — Silver recently calculated that the Senate is “effectively 6 to 7 percentage points redder than the country as a whole.” As my colleague Matt Yglesias points out, in 2014, Republican candidates won 52 percent of the popular Senate vote and gained nine Senate seats; in 2016, Democrats won 54 percent of the vote and gained only two seats; and in 2018, Democrats won 54 percent of the vote and lost two seats.

“Because the president appoints federal judges and the Senate confirms them, these biases are also reflected in the judiciary, where the Trump administration has already filled federal court benches with an unprecedented number of young, highly ideological conservative judges, including two Supreme Court justices.
It’s important to underscore the mechanism that generates and sustains this partisan bias: US political institutions systematically underweight the interests of nonwhite Americans.”

“Analyzing the results of the 2016 presidential election, statisticians Andrew Gelman and Pierre-Antoine Kremp found that “per voter, whites have 16 percent more power than blacks once the Electoral College is taken into consideration, 28 percent more power than Latinos, and 57 percent more power than those who fall into the other category.”

Behind the Senate’s partisan tilt is that it overrepresents people living in small states who tend to be whiter, on average, than people living in larger states. California, which has large Black and brown populations, and Wyoming, a predominantly white state, have equal representation in the Senate, despite the former having over 60 times more people than the latter.”

“this racial skew distorts policy preferences on issues ranging from gun control to the minimum wage to environmental policy. For instance, 48 percent of Americans believe controlling gun ownership is more important than protecting gun rights; however, when you weigh voter preferences as the Senate does — giving equal representation to each state — support for gun control drops a whopping 5 points, to 43 percent.
Why? Because the Senate overweights the preferences of white Americans, who tend to favor gun rights, and underweights the preferences of Black and brown Americans, who tend to favor gun control. By that same mechanism, McAuliffe finds that support for a $15 minimum wage also drops 5 points (from 58 to 53 percent), and a $100 billion yearly investment in green social housing drops 3 points (63 to 60 percent).”

“This is the status quo that Just Democracy’s coalition members aim to change — and they have a few proposals to do so.”