Saturday, October 17, 2020

Barrett Won't Pull Away From Trump's Coattails

           President Trump’s Supreme Court appointee, Judge Amy Coney Barrett, asked the Senate Judiciary Committee last week [Oct. 14] to trust in her independence and integrity if confirmed to the Court. Barrett’s evasions on any questions touching on Trump’s views, however, provide good reason for doubting her independence from Trump if seated to join the five other Republican-appointed justices.

            Barrett made her plea as Democratic senators, including Delaware’s Chris Coons, pressed for a promise to recuse herself from the election-related litigation that Trump promised to bring to the Supreme Court almost in the same breath as he was nominating Barrett. “I certainly hope that all members of the committee have more confidence in my integrity than to think I would allow myself to be used as a pawn to decide this election for the American people,” she said on Tuesday [Oct. 13], in the first of her three days of questions from the Republican-majority committee.

            The recusal issue was one of at least five lines of questions from Democrats that gave Barrett easy options to pull herself away from Trump’s coattails. But she begged off on each one, by hiding behind the need to avoid opining on what she described as “contentious” public policy issues or on legal questions that might come before her as a  justice.

            Her non-answer on the recusal issue was especially inane. She promised not to make the decision for herself but to decide only after consulting with her colleagues—supposedly the standard practice for justices pressed for recusal because of some possible conflict of interest. It must be noted that the Roberts Court has divided along partisan lines in several election-related cases over the past year.

When Trump v. The American People reaches the Court, the five Republican-appointed justices, including Trump’s previous two appointees, may well want or need Barrett’s vote to solidify a majority for the petitioner president. Indeed, think back to Bush v. Gore when Justice Sandra Day O’Connor, a Bush supporter, gave the Republican-appointed conservatives the needed vote to end the Florida recount that might have cost Bush the election.

Republican senators offered Barrett a rationale for non-recusal in the eventual Trump case by noting that President Clinton’s two appointees, Ginsburg and Breyer, were not pressed to recuse themselves several years after their appointments when Clinton v. Jones reached the Court. In fact, Ginsburg and Breyer both voted in the eventually unanimous decision against Clinton’s plea for immunity from civil lawsuits while serving as president.

The other issues that Barrett ducked included voter intimidation, climate change, systemic racism, and the president’s pardon power. Barrett must have seen that the easy answer to each of those questions would have generated mini-headlines separating herself from Trump’s positions. In that regard, it is worth recalling that as Supreme Court nominee, then-Judge Neil Gorsuch showed at least enough integrity to distance himself from Trump’s criticism of the “Mexican judge” who was presiding over the civil lawsuit against Trump University.

Minnesota’s Amy Klobuchar noted to Barrett that the Trump campaign is recruiting individuals with “special forces” experience to act as poll watchers on or before Nov. 3. Klobuchar asked, in effect, whether the presence of armed poll watchers would amount to voter intimidation under federal law. Barrett hid her non-answer behind a legalism. “I can’t characterize the facts in a hypothetical situation,” she said.

Barrett was similarly agnostic when asked whether she believes that climate change is occurring, as all reputable scientists believe. Barrett surely knows that her presidential benefactor has described climate change as “a hoax.” Had she indicated agreement with scientists instead of with the non-scientist Trump, the headline writes itself: “Barrett Clashes With Trump on Climate Change.”

Barrett similarly avoided directly acknowledging to New Jersey’s Cory Booker the presence of systemic racism in the criminal justice system today. Again, Trump and his attorney general, William Barr, have resisted any generalized acknowledgment of racism in criminal justice. With her non-answer, Barrett aligned herself with the Trump administration non-position.

With Trump under investigation for possible criminal prosecution by the New York City district attorney’s office, Trump might be considering trying to pardon himself as he leaves the White House after failing re-election. Under questioning by Vermont’s Patrick Leahy, Barrett declined to opine on what she called “an open question” about the president’s self-pardoning power. Still, she might at least have quoted the centuries-old Latin maxim “Nemo judex in causa sua” (no one can be a judge in his own case) as casting doubt on the supposed self-pardon power.

Barrett was given another opportunity to demonstrate her integrity in an open letter signed by more than 80 Notre Dame faculty members urging her to withdraw from the nomination altogether because of what the academics called “the anti-democratic machinations driving your nomination.” Barrett was not asked about the letter during the hearings and has said nothing on the record even to indicate that she has read it. Suffice it to say that one way to prove her integrity would be to renounce the reward that Trump has offered her in a Faustian bargain.

Sunday, October 11, 2020

Barrett Poses Risk to Rights, Public Health

           Judge Amy Coney Barrett appears to be on her way to becoming the next associate justice of the Supreme Court on the United States. If Republicans have their way, she may take her seat early enough to cast a decisive vote to throw out the Affordable Care Act and leave millions of Americans without health insurance in the midst of the coronavirus pandemic.

            The Court is currently scheduled to hear arguments in that case on Nov. 10, one week after the election. The Trump administration is supporting the argument by red states led by Texas that Congress effectively eliminated the act’s individual mandate in 2017 and for that reason the entire law must be thrown out.

            With 47 seats, Senate Democrats s may not have the votes to block or delay Barrett’s confirmation in either the Judiciary Committee or on the Senate floor, but they can use the confirmation hearings that begin on Monday [Oct. 12] to underline the risk that Barrett’s confirmation would pose to individual rights and to public health. Barrett has previously criticized Chief Justice Roberts for his pivotal vote in 2015 to uphold the act.

            In advance of the hearing, Republicans are playing down the issue that President Trump put at the top of his Supreme Court agenda: overruling the landmark abortion rights decision, Roe v. Wade. As one example, the Washington Post noted in a story [Oct. 9]  that Iowa’s Republican senator Joni Ernst described the chances of overturning Roe v. Wade as “very minimal” in a Sept. 28 debate with her Democratic opponent.

            The reproductive rights organization NARAL is emphasizing that in fact the anti-Roe v. Wade position is politically unpopular. Despite the anti-abortion lobby’s unceasing attacks on the 47-year-old decision by a 7-2 Supreme Court, most Americans do not want to see it overruled. In the most recent poll, NBC News found that 66 percent of Americans surveyed do not want to see the decision overruled and, in fact, that Republicans are “virtually split” with a bare 50 percent majority in favor of reversing the decision.

            Barrett, a member of Faculty for Life when she was a law professor at Notre Dame, has taken the minority position on this issue for years—for example, in a political advertisement in Indiana in 2006 that denounced “the barbaric legacy” of the decision and called for it to be overturned. Whether inadvertently or intentionally, Barrett omitted mention of having signed the advertisement.

Years later, however, Barrett soft-pedaled her stance somewhat in a speech at Notre Dame in 2013. "The fundamental element, that the woman has a right to choose abortion, will probably stand," she said. Three years later, she acknowledged the possibility of further restrictions on abortion rights. "I don't think abortion or the right to abortion would change,” she remarked in 2016. “I think some of the restrictions would change."

            As a federal appellate judge, Barrett dissented from a Seventh Circuit decision that struck down an Indiana law prohibiting abortions for the purpose of sex selection. Reproductive-rights groups always emphasize that provisions such as that one inevitably mean that the government gets to cross-examine a woman about her reasons for wanting to terminate a pregnancy. So much for the right to choose!

            Barrett, it must be remembered, has written that her notion of originalism overrides the legal principle of stare decisis—respect for precedent. “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,” Barrett wrote in a law review article in 2013.

            Senate Democrats can usefully remind Barrett of Chief Justice Roberts’ description of Roe v. Wade in his confirmation hearing as settled law and ask whether she agrees. Barrett is likely to evade the question, but Democratic senators may want to note that Louisiana and Texas both enacted laws that could have reduced the number of abortion clinics in each state to only one. Fortunately for access to abortion services, the Court struck down both laws by 5-4 votes; as Ginsburg’s successor, Barrett would provide a critical vote for upholding similar restrictions.

            In an alternate universe, the Republican senators who four years ago blocked Merrick Garland’s nomination to the Supreme Court eight months before the 2016 presidential election would be too embarrassed by the rank hypocrisy of pushing Barrett’s nomination barely one month before this year’s election. In this real world, however, Republicans have no principles and no capacity for shame.

            The Democratic vice presidential nominee, Senator Kamala Harris, raised this issue one last time in the vice presidential debate [October 7] by noting as historical precedent President Lincoln’s decision shortly before the 1864 presidential election to delay filling a Supreme Court vacancy until after the election. “American people are voting right now,” Harris said. “It should be their decision as to who should have a lifetime appointment to the Supreme Court.”

 In fact, a dozen polls indicate that most Americans want the vacancy to be filled by the winner of the 2020 presidential election. In that regard, Democratic senators should press Barrett very hard on whether she will recuse herself – as she ought to – from any litigation brought by her benefactor Trump to contest Nov. 3 election results.

Sunday, October 4, 2020

In Texas, New Move on Voter Suppression

          In Texas, the state’s Republican governor Greg Abbott came up with a new technique of voter suppression last week [Oct. 1] by directing two of the state’s predominantly Democratic counties to reduce the number of drop-off boxes for voters to deposit absentee ballots in advance of Election Day.

            Abbott issued his proclamation two days after President Trump used the first presidential debate [Sept. 29] to repeat his call for supporters to assemble at polling places on Election Day, ostensibly to guard against voter fraud. The Texas governor similarly described his proclamation as an effort to “strengthen ballot security protocols throughout the state.”

            Two Democratic counties were immediately affected by Abbott’s order that all of Texas’s 250 counties limit the number of ballot drop-off boxes within their expansive borders. Travis County, which includes the state capital of Austin, had to eliminate three of the four drop-off boxes already in place; Harris County, which includes the nation’s third largest city, Houston, had to get rid of eleven of its twelve drop-off boxes.

Democratic officials in both counties immediately criticized Abbott’s move as amounting to voter suppression. Voting rights groups filed federal court suits the next day challenging Abbott’s proclamation as a violation of the federal Voting Rights Act.

            Texas now joins several other battleground states with litigation over actions being taken to ease mail voting in the midst of a pandemic that makes in-person voting hazardous to voters’ health. Two of those cases – one from Pennsylvania and another from Arizona -- are now at the Supreme Court, which divided along partisan lines in a Wisconsin case in April in blocking a federal court order opposed by GOP legislators to extend absentee ballot deadlines.

Republican officials waging those legal battles echo Trump’s unsubstantiated warnings about likely fraud with expanded mail voting. Federal judges, however, have generally dismissed the allegations and allowed election officials, for example, to extend deadlines for receiving ballots given the likelihood of delays in the mails.

             In the most recent ruling, a federal judge in Montana rejected an effort by the Trump campaign and GOP officials in the state to block the state’s 56 counties from conducting the Nov. 3 election by mail. In rejecting the suit, U.S. District Court Judge Dana Christensen, an Obama appointee who served as chief judge for seven years, noted that the GOP officials “were compelled to concede that they cannot point to a single instance of voter fraud in Montana in any election during the last 20 years.”

            In Texas, a spokesperson for Abbott was described by The Texas Tribune as failing to explain how multiple drop-off ballot boxes could lead to voter fraud. In Travis County, the county clerk Dana DeBeauvoir described Abbott’s proclamation as “a deliberate effort to manipulate the election.” In Harris County, the county’s chief executive Lina Hidalgo echoed that view. “This isn’t security, it’s suppression,” Hidalgo said.

            Trump carried Texas, with its 38 electoral votes, by a 9 percentage point margin in 2016. His Democratic opponent, Hillary Clinton, carried Harris and Travis counties by substantial margins. In the most recent polls, Trump leads the Democratic nominee, former vice president Joe Biden, by an average of 2.5 percentage points.

            With only one month before the Nov. 3 election, the federal court suits challenging Abbott’s order may not move fast enough to allow the two counties to re-establish some of the drop-off boxes that have been removed. The groups that filed the suits include the Texas and National Leagues of United Latin American Citizens, the League of Women Voters of Texas, and the Texas Alliance for Retired Americans.

            Also last week, Republican legislators in the key battleground state of Pennsylvania asked the Supreme Court to intervene to stop a decision by the state’s high court to count mail-in ballots received up to three days after Election Day. The GOP lawmakers who filed the application in Scarnati v. Boockvar on Monday [Sept. 28] contended that the state court’s decision, aimed at accommodating likely mail delays, intruded on the legislature’s authority to set election rules.

            Trump carried Pennsylvania with its 20 electoral votes by a 44,000-vote margin in 2016. Current polls show Biden with a 5.8 percentage point lead over Trump in the state. Pennsylvania is listed along with Michigan and Wisconsin as among the states crucial to Trump’s Electoral College victory in 2016 despite losing the nationwide popular vote by nearly 3 million votes.

            The Supreme Court took up another election-related case at the end of the week [Oct. 2] by agreeing to hear a plea by Arizona’s Republican attorney general to uphold two election laws struck down by a federal appeals court on the ground that they discriminated against minority voters. One of the laws requires election officials to discard ballots cast at the wrong precinct; the other makes it a crime for campaign workers, community activists, or others to collect ballots for delivery to polling places.

            In striking down the “ballot collection” law, the en banc majority of the Ninth U.S. Circuit Court of Appeals stated that there was “no evidence of any fraud in the long history of third-party ballot collection in Arizona.” The appeals court stayed its ruling; so the laws remain in effect for the Nov. 3 election. The justices’ decision to review the case, Brnovich v. Democratic National Committee, tees it up for oral arguments early next year and a decision by the end of June.