The fight to replace Ruth Bader Ginsburg megathread

[Xeuma]

Clearly a Supreme Court nominee who doesn't commit to protecting the very norms that make us a democracy doesn't bother you in the least.  These are no-brainer questions that normally would elicit a 'Yes, of course I do.  What the hell kind of question is that?'

I didn't see the question and haven't had a chance to go watch it yet so I can't really comment on what was actually said. I'm merely suggesting that its not at all uncommon for justices to refuse to answer how they will rule on a question which may come before the Court. If that's all it was, then no I'm not concerned. If it were in another context, I might be -- depending on that context.

[lfromnj]

If a justice comments on a hypothetical case that would become the issue, they need to stay focused on the real issues at hand. Only after confirmation should the justices tell the position.

[Attorney General & PPT Dwarven Dragon]

really enjoying Sen. Hirono's line of questioning, establishing that Barrett does not seem to care much about the real world consequences of her decisions.

[Ferguson97]

I hope some dem senators will look at her in the eyes and say: "you think we're going to let you sit on this court for 30-40 years? You thought wrong. We will remove you from this court somehow some way".

There is no mechanism for them to do this.

[freepcrusher]

I hope some dem senators will look at her in the eyes and say: "you think we're going to let you sit on this court for 30-40 years? You thought wrong. We will remove you from this court somehow some way".

There is no mechanism for them to do this.

something will happen in this country between now and then. If she gets indicted, no matter how frivolous - she has to resign.

[Attorney General & PPT Dwarven Dragon]

I hope some dem senators will look at her in the eyes and say: "you think we're going to let you sit on this court for 30-40 years? You thought wrong. We will remove you from this court somehow some way".

There is no mechanism for them to do this.

They can impeach if they ever get a 2/3 senate majority

[R.P. McM]

I hope some dem senators will look at her in the eyes and say: "you think we're going to let you sit on this court for 30-40 years? You thought wrong. We will remove you from this court somehow some way".

There is no mechanism for them to do this.

Yep. Here are your options, folks: a.) expand the Court, thereby diminishing the influence of this odious individual; or b.) suffer the indignities of this farcical appointment, along with a raft of outrageously partisan, radically rightwing rulings authored by an illegitimate majority hellbent on shielding plutocrats and bigots from democratic accountability. That's it, TINA.

[DrScholl]

I don't even see the point in these confirmation hearings. Why didn't they just skip straight to the floor vote? It's not like we don't all know what the intentions of the Senate Republicans are.

[SevenEleven]

I hope some dem senators will look at her in the eyes and say: "you think we're going to let you sit on this court for 30-40 years? You thought wrong. We will remove you from this court somehow some way".

There is no mechanism for them to do this.

Yep. Here are your options, folks: a.) expand the Court, thereby diminishing the influence of this odious individual; or b.) suffer the indignities of this farcical appointment, along with a raft of outrageously partisan, radically rightwing rulings authored by an illegitimate majority hellbent on shielding plutocrats and bigots from democratic accountability. That's it, TINA.

Option C: banish the concept of judicial review to the shadow realm.

Something that isn't spoken of nearly enough.

[Attorney General & PPT Dwarven Dragon]

I don't even see the point in these confirmation hearings. Why didn't they just skip straight to the floor vote? It's not like we don't all know what the intentions of the Senate Republicans are.

They are a senate tradition. Every nominee has a hearing, even Diane Gujarati who was confirmed to ED NY last month 99-0.

[MarkD]

Option C: banish the concept of judicial review to the shadow realm.

Something that isn't spoken of nearly enough.

Becasue there are extremely few people who want subjects like abortion rights and same-sex marriage as well as all of the rights mentioned in the First and Second Amendments to be subjected to determination by the legislative branch of the federal government and the all the state governments.

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." -- West Virginia State Board of Education v. Barnette, 1943.

[SevenEleven]

Option C: banish the concept of judicial review to the shadow realm.

Something that isn't spoken of nearly enough.

Becasue there are extremely few people who want subjects like abortion rights and same-sex marriage as well as all of the rights mentioned in the First and Second Amendments to be subjected to determination by the legislative branch of the federal government and the all the state governments.

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." -- West Virginia State Board of Education v. Barnette, 1943.

None of that matters. If the general population begins to perceive the court as lacking impartiality and acting against general democratic institutions, it has no bearing to enforce it's rulings, and thus will be relegated to irrelevance.

The Court only has authority so much as it's given by the people and their Representatives. What Republicans are doing is not "packing the court". They're destroying it. And for many reasons, that should be worrisome to liberals, but not simply because it means the court continues to lean right as it has for the last couple of decades.

[Attorney General & PPT Dwarven Dragon]

Today was extraordinarily informative, compelling, and civil. I believe reasons to oppose the nomination were plentiful throughout the hearing. Of course, I oppose Barrett on the timing first and foremost, and that is enough alone. But the case to oppose her on the merits is not a weak one.

I will have a more full statement tomorrow or Thursday.

Stream link for tomorrow: https://www.judiciary.senate.gov/meetings/nomination-of-the-honorable-amy-coney-barrett-to-be-an-associate-justice-of-the-supreme-court-of-the-united-states-day-3

Agenda for tomorrow is 7 hours and 20 minutes of questioning (20 min/Senator)

[Beet]

Another reminder of what's at stake.

https://www.houstonchronicle.com/nation/article/U-S-Supreme-Court-ends-census-taking-suspending-15645594.php

[R.P. McM]

I don't even see the point in these confirmation hearings. Why didn't they just skip straight to the floor vote? It's not like we don't all know what the intentions of the Senate Republicans are.

They are a senate tradition. Every nominee has a hearing, even Diane Gujarati who was confirmed to ED NY last month 99-0.

Well, not quite EVERY nominee ...

[Badger]

Today has been a constructive hearing where all sides have been respectful and many views discussed. Thankfully Senate Democrats didnt act like Atlas/Twitter Democrats. Too many politically charged questions though which would be inappropriate for her to answer, and thankfully she held firm to both sides doing it.

There is nothing politically-charged about committing to limiting a president's power not to unilaterally delay in election or fail to commit to a peaceful transition of power. That is about as non-political 101% Foursquare American a question can get.

Or at least it was before the Republican Party sold its soul to trumpism

[Badger]

I hope some dem senators will look at her in the eyes and say: "you think we're going to let you sit on this court for 30-40 years? You thought wrong. We will remove you from this court somehow some way".

There is no mechanism for them to do this.

Yep. Here are your options, folks: a.) expand the Court, thereby diminishing the influence of this odious individual; or b.) suffer the indignities of this farcical appointment, along with a raft of outrageously partisan, radically rightwing rulings authored by an illegitimate majority hellbent on shielding plutocrats and bigots from democratic accountability. That's it, TINA.

Option C: banish the concept of judicial review to the shadow realm.

Something that isn't spoken of nearly enough.

A truly horrific idea. Even if relying on the three Democratic appointees + Roberts and some other non crazy Republican to counter Trump's worst excesses, it is better than nothing and in fact has occurred on numerous occasions throughout his administration.

I'm not one for lying down in this fight against Trump, but that is literally throwing the baby out with the bathwater and then throwing the baby into the river

[Vaccinated Russian Bear]

Bulk of Voters Continue to Back Barrett’s Supreme Court Confirmation
https://morningconsult.com/2020/10/14/supreme-court-barrett-confirmation-polling/








I wonder, how the #s will look like after the hearings. She has been doing very well so far, I'd say. GOP would go on to confirm her anyway (thanks to Honorable Romney? ), even despite an eventual blow-back, but there, perhaps, might not be even a blow-back after all. What a times to be alive!

[Beet]

Bulk of Voters Continue to Back Barrett’s Supreme Court Confirmation
https://morningconsult.com/2020/10/14/supreme-court-barrett-confirmation-polling/








I wonder, how the #s will look like after the hearings. She has been doing very well so far, I'd say. GOP would go on to confirm her anyway (thanks to Honorable Romney? ), even despite an eventual blow-back, but there, perhaps, might not be even a blow-back after all. What a times to be alive!

It's largely because the Democrats have signaled surrender. They aren't going to try and use their leverage in the House to strike a deal with Trump, and they aren't going to use more arcane Senate procedure to try and shut down the Senate. So voters get the (false) impression they don't really oppose her. They are again making the same mistake they've made for 40 years in not prioritizing the Courts.

[Attorney General & PPT Dwarven Dragon]

aren't going to use more arcane Senate procedure to try and shut down the Senate.

We don't have anything suggesting that Schumer (who is the one who will do this) will not, do we? He's said that Democrats will attempt to create a no quorum situation on Judiciary by not showing up and we've already seen him force an unexpected floor vote on the ACA. I wouldn't be surprised if Schumer directs his caucus to make/support lots of dilatory motions and other means of slowing this down.

That being said, with respect to the hearing itself, it's in democrats interest to be civil, as if Barrett does spout an incriminating soundbite, they want to ensure the focus is on that and not being distracted from by the behavior of the committee members.

[Attorney General & PPT Dwarven Dragon]

LOL: At 5 hours, 9 minutes in today's hearing stream, Dems crashed the entire hearing sound system. The GOP had to spend nearly 45 minutes fixing it.

[Attorney General & PPT Dwarven Dragon]

There was another sound crash at 6 hours, 12 minutes into the stream, which took 17 minutes to resolve.

[Attorney General & PPT Dwarven Dragon]

Panels of Witnesses for tomorrow:

I - ABA Panel:

Mr. Randall D. Noel
Butler Snow, LLP
Memphis , TN

Ms. Pamela J. Roberts
Bowman and Brooke, LLP
Columbia , SC

II:

Dr. Farhan Bhatti (D)
Care Free Medical
Lansing , MI

The Honorable Thomas Griffith (R)
Retired Judge
United States Court of Appeals for the District of Columbia Circuit
Washington , DC

Ms. Kristen Clarke (D)
President and Executive Director
Lawyers’ Committee for Civil Rights Under Law
Washington , DC

Professor Saikrishna Prakash (R)
James Monroe Distinguished Professor of Law
University of Virginia School of Law
Charlottesville , VA

Ms. Crystal Good
Charlseton , WV

Ms. Amanda Rauh-Bieri (Presumably R, she was one of Barrett's Law clerks on the 7th circuit)
Associate
Miller Canfield
Grand Rapids , MI

Ms. Stacy Staggs (D)
Little Lobbyists
Charlotte , NC

Ms. Laura Wolk
Washington , DC


Stream: https://www.judiciary.senate.gov/meetings/nomination-of-the-honorable-amy-coney-barrett-to-be-an-associate-justice-of-the-supreme-court-of-the-united-states-day-4

There will also be a markup, during which lower court nominees may be voted on and during which Barrett will be held over for one week under committee procedures.

Committee members have until Friday to submit written questions to Barrett, which she should answer ahead of the committee vote on the 22nd.

[Attorney General & PPT Dwarven Dragon]

I want to be clear about a few things at the outset. This is not a critique of Barrett's role on the circuit court, or her general qualifications for either that position or the Supreme Court. And perhaps if we had a president that wasn't calling for certain precedents to be overturned, suggesting he can delay the election, and inviting Russian and Ukrainian interference, some of this would not matter. Much of it is irrelevant at the Circuit Court where she is strictly bound by precedent, which is not at all true for the Supreme Court.

Perhaps if it was earlier in the term, this would be different. And if the 60 vote rule was still in effect, I would not seek to filibuster her. But none of this is reality. We must instead deal with the reality we are in. And it is with that in mind that I proceed with the following critique.


First and foremost, it is too close to the election to do this. No judge has ever been confirmed to SCOTUS between July and November of the election year, EVER. That is a nearly 250 year tradition that we should not break. It was strengthened and reaffirmed by first, Chuck Schumer in 2007, who said Dems would block any 2008 Bush nominee. Then it was reaffirmed by Mitch McConnell, who blocked a 2016 Obama nominee. Neither, particularly McConnell, made any condition at the time that was dependent on who controlled the Senate. The reality of being in an election year, in and of itself, was the only thing that was said to matter. There is no extreme circumstance here that justifies departing from a centuries long tradition that both parties have previously expressed support for, and the timing alone is enough to reject.

But when we move from the timing to the merits, the outlook does not improve for Barrett. First, on the ACA. Barrett repeatedly affirmed that she stands by her past comments on Justice Roberts's rulings, which criticize NFIB vs Sebelius and King vs Burwell, and say they do NOT comply with textualism, which is her core philosophy. She cast further doubt on the ACA by refusing to say if a similar issue, Medicare, is constitutional. I appreciate her answers stating that Scalia would not necessarily overturn NFIB vs Sebelius if he had to rule on it again, and her deference to congressional intent and the presumption of trying to save the statute on the severability question. But no answer totally resolved for me how to square her past writings with upholding the ACA, particularly since she said she stands by her writings, including her criticism of Justice Roberts. The ACA matters a lot to me, and on that, she did not satisfy me.

Next, on the right to vote. She repeatedly asserted that voting rights are not as fundamental, or at least not as important, as the right to own a gun. This is ridiculous to me. I can buy an Assault weapon if I am a felon in some cases, but I cannot vote? This is a bad judicial position, and bad public policy as well. I am not saying Barrett does not support the right to vote or that she would strike down section 2 of the voting rights act. But I do not think she truly values it or protects it to the degree we must when our president attacks it.

Furthermore, she suggested that the president may be able to delay the election, and refused to respond to a hypothetical question about foreign election interference as a general matter. These are very concerning answers in their own right, and even more so when combined with the previous paragraph.

Going on, she also suggested that she will not take into account the practical consequences of her rulings as a general matter, which is troubling as her decisions, particularly on the ACA on November 10th, affect lots of real people. She furthered this concern by declining to condemn the idea of family separation.

Unlike Justice Kavanaugh, she also refused to say if Griswold vs Connecticut was correctly decided (Kavanaugh said it was). This is a highly respected precedent and her lack of support for it is a concern. She furthered this concern by not denying that she opposes In Vitro Fertilization.

Finally, while much of this received only a passing reference at the hearing, her record is filled with concerning cases on the first step act, Miranda rights, consumer protections, age discrimination, civil rights, and other issues.


She may be fine on the circuit court, where she is strictly bound by precedent and for which she has great qualifications. But on the Supreme Court, following precedent is a matter of personal choice and opinion. Once the case is before them, the justices can and do overturn whatever relevant precedent they wish. They do so regularly. And Barrett's qualifications for the position are overshadowed by numerous signs this week that she will not protect and uphold those rights and benefits that we hold dear with the unfettered power she will have on the Supreme Court.

Therefore, for all of these reasons, on the timing and on the merits, it will be my pleasure to continue to oppose this nomination. As I suspected, my views were not changed by the hearing, but instead reaffirmed and strengthened. And I look forward to hearing more on these troubling points from our Democratic outside witnesses tomorrow.

[🐒Gods of Prosperity🔱🐲💸]

Klobuchar's questioning of Barrett was bizarre.  Was she claiming that Barrett wrote her criticism of Robert's opinion on the ACA in hopes that Trump would win the election and then appoint her to the Court?