GrandAdmiral
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Ugh... breaking news I DID NOT want to see.
ETA: Reported on CNN.
ETA: Reported on CNN.
Ruth Bader Ginsburg has passed (Replaced by Amy Coney Barrett)(Now Abortion Discussion) (1 Viewer)
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Democrats say Barrett's nomination is all about the future of Obamacare — CNN Politics
Democrats on Saturday night launched their case against federal Judge Amy Coney Barrett, President Donald Trump's Supreme Court nominee, saying support for her confirmation was equivalent to a vote to end the Affordable Care Act.
I would definitely have preferred someone older and with more bench experience. I don’t see the types of red flags already that I saw with Kavanaugh, though.
however, we do already know that she favors stripping the right to vote for life from any convicted felons, and we know that she condemned the SC very strongly when they voted to uphold the ACA. Especially John Roberts, from what I read. I’m not convinced she won’t rule in a very partisan matter, and I think partisanship is stronger in the young, sometimes, and people grow out of it a bit as they age. Sometimes
The real hypocrisy here is that they are going to ram this nomination through before November 3rd, though. I fervently hope that all these Rs pay a huge political price.
however, we do already know that she favors stripping the right to vote for life from any convicted felons, and we know that she condemned the SC very strongly when they voted to uphold the ACA. Especially John Roberts, from what I read. I’m not convinced she won’t rule in a very partisan matter, and I think partisanship is stronger in the young, sometimes, and people grow out of it a bit as they age. Sometimes
The real hypocrisy here is that they are going to ram this nomination through before November 3rd, though. I fervently hope that all these Rs pay a huge political price.
JimEverett
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Where do you get that from?
I understand she may have made a comment or, perhaps used voting rights to contrast with 2d amendment rights - but I don't think she advocated being for denying those rights.
Big difference between arguing government has the power to do something and advocating or being for the exercise of that power.
Optimus Prime
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Interesting takes on how this could backfire for the GOP
====================
......To make matters even more dicey, McConnell launches forward during a time of unprecedented mourning and adulation for a justice who was an icon and inspiration to millions of women.
She will be the first woman in history to lie in state in the Capitol. Think how significant that is, both as a reflection of her historical importance and as a reminder that women before Ginsburg were locked out of the halls of power.
Seeing her replaced by someone devoted to ripping up Ginsburg’s legacy might be just the thing to send turnout among women and younger voters through the roof.
Republican members who vowed in 2016 to let the people decide the next president (and thereby decide what sort of justice they wanted) before filling the vacancy left by the death of Antonin Scalia are turning themselves inside out to come up with plausible excuses for a pure power grab — a perfect example of Republicans’ “heads I win, tails you lose” mentality.......
Moreover, the Democratic nominee for vice president, Sen. Kamala D. Harris (D-Calif.), sits on the Judiciary Committee. Do Republicans really want to give the whip-smart, telegenic senator potentially hours of live TV coverage — watch Democrats give her their time so she can rake the nominee over the coals — during which she makes clear just how extreme Trump’s nominee is? I am going to guess the answer is no.......
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......To make matters even more dicey, McConnell launches forward during a time of unprecedented mourning and adulation for a justice who was an icon and inspiration to millions of women.
She will be the first woman in history to lie in state in the Capitol. Think how significant that is, both as a reflection of her historical importance and as a reminder that women before Ginsburg were locked out of the halls of power.
Seeing her replaced by someone devoted to ripping up Ginsburg’s legacy might be just the thing to send turnout among women and younger voters through the roof.
Republican members who vowed in 2016 to let the people decide the next president (and thereby decide what sort of justice they wanted) before filling the vacancy left by the death of Antonin Scalia are turning themselves inside out to come up with plausible excuses for a pure power grab — a perfect example of Republicans’ “heads I win, tails you lose” mentality.......
Moreover, the Democratic nominee for vice president, Sen. Kamala D. Harris (D-Calif.), sits on the Judiciary Committee. Do Republicans really want to give the whip-smart, telegenic senator potentially hours of live TV coverage — watch Democrats give her their time so she can rake the nominee over the coals — during which she makes clear just how extreme Trump’s nominee is? I am going to guess the answer is no.......
zztop
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There is no way I can be as optimistic. Also people can say empty words all the time, and once she is appointed to a position (for life) we could very well be set back decades because of it.
(taken from an article)
On abortion, she will be a reliable vote to allow all sorts of abortion restrictions. Based on how she has voted in cases as a judge and how she has criticized Roe v. Wade and called abortion “always immoral,” there is no doubt that when the issue is squarely before her, she will be a resounding vote in favor of overturning Roe. With four Justices on the Court now who expressed serious skepticism (or worse) about Roe just this summer, she would provide the fifth vote to overturn the case and get rid of nationwide abortion rights in this country.
On healthcare, she will vote to overturn the Affordable Care Act and get rid of all its protections. She has already said that she did not agree with the Court’s upholding of the law in 2012. And with the law coming back to the court this November, if she is on the bench by the time it hears the case, it won’t matter that Chief Justice Roberts votes for the law because she will have four other conservatives joining her to strike it down.
On guns, she will vote to expand the rights of gun owners and limit the ability of states to restrict guns. She has already voted to allow felons to possess guns (dissenting in a case that upheld the restriction), so we know how she feels about the issue. The court has so far been reluctant to expand gun rights beyond basic ownership of a handgun, but with Justice Barrett seated, a fifth vote to allow for unfettered gun ownership is likely.
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I appreciate your concerns. However, over the course of time, justices have proven that they cannot always be pigeonholed into reliable votes for or against a particular point of view. Barrett may indeed vote the ways you suggest on those issues, but depending on the case, we don't know how the others will vote. I think your conclusions are fair, based on what Barrett has said or written in the past, but we will have to see what happens. The nuances of each case are unique. If I am correct, none of the justices can simply strike down Roe v. Wade. It would require a specific case to be brought before the Court with a specific reason for them to take it up and I tend to believe that they are unlikely to do that. They will continue to refer issues back to lower courts for resolution until there is a case that gives them no choice but to revisit the decision.
As far as the case against the ACA, I believe the administration's case is a loser and the Roberts will be able to maintain the majority in upholding the law. I am not as familiar with the gun cases, but I would be surprised if the Court weighed in on a gun ownership case that swung the issue wildly one way or the other. They could speak to individual gun rights in a limited way, but I do not believe they will issue some blanket ruling that will have everyone carrying a sidearm like the old west. On broad issues like the ones you mentioned, it seems to me that the Court has tried to issue the narrowest rulings possible to allow the legislature to do its job. When a major ruling has been required, they have stepped up, but from my observation, they prefer not to make sweeping changes that would be better left to Congress or the states.
I saw it in a Tweet, but it seems to come from this article:
“That distinction, suggesting that the right to vote was not an “individual” right, was no accident. She elaborated on her point later to note that “history does show that felons could be disqualified from exercising certain rights—like the rights to vote and serve on juries—because these rights belonged only to virtuous citizens.” By comparison, she argued that gun ownership was an individual right that could only be suspended based on whether the individual in question was dangerous. Kanter, who was convicted of mail fraud, likely wouldn’t qualify as such. “Civic rights” such as voting and jury service, on the other hand, can be denied based on whether the individual is “virtuous” or not.”
“The right to vote is held by individuals, but they do not exercise it solely for their own sake; rather, they cast votes as part of the collective enterprise of self-governance,” she explained.”
The author interpreted these comments as her saying the right to vote isn’t an individual right, and is thus not protected to the extent that the right to own a gun is. Maybe I am missing something about this issue, but that take did make sense to me.
From the piece, emphasis mine: “Others who made this point may have simply noted that there is ample Supreme Court precedent for felon disenfranchisement, and that the Fourteenth Amendment is even written with the practice in mind. (Barrett indeed does just that in an earlier footnote.) But in searching for a rationale to justify a sweeping expansion of gun rights, she appears to have unnecessarily minimized the nature and significance of voting rights in general.”
Amy Coney Barrett Wants Felons to Have Guns, But Not Votes
A little regarded dissent written by Donald Trump's new Supreme Court nominee could have a huge impact on voting rights.
newrepublic.com
SaulGoodmanEsq
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Roe/Casey is gone unless Gorsuch votes to uphold it. In his concurrence in Ramos v. Louisiana, Kavanaugh already laid out a blueprint on how to overturn Supreme Court precedent -- everyone saw this as a significant tell on abortion. Roberts' vote won't matter unless Gorsuch upholds. The manner in which it will be overruled -- interpreting no privacy/intimacy rights in the substantive due process clause -- will impact other areas like gay rights.
An originalist/textualist would be right in that there is no explicit right to privacy in the Constitution. But the fact that the state can compel a woman to term but can't excessively regulate your guns is why I put zero credence in what a bunch of wealthy landowners wrote down 250 years ago.
Once Barrett is confirmed, there will be no shortage of conservative states passing new restrictive laws on abortion which will eventually make their way up to the Supreme Court. The Louisiana legislature has already put a proposed amendment to the Louisiana Constitution up on the Nov 3 ballot which reads:
On its face, it does not conflict with Roe/Casey. However, it clearly paves the way for a statute prohibiting abortion in Louisiana with few/no exceptions.
An originalist/textualist would be right in that there is no explicit right to privacy in the Constitution. But the fact that the state can compel a woman to term but can't excessively regulate your guns is why I put zero credence in what a bunch of wealthy landowners wrote down 250 years ago.
Once Barrett is confirmed, there will be no shortage of conservative states passing new restrictive laws on abortion which will eventually make their way up to the Supreme Court. The Louisiana legislature has already put a proposed amendment to the Louisiana Constitution up on the Nov 3 ballot which reads:
On its face, it does not conflict with Roe/Casey. However, it clearly paves the way for a statute prohibiting abortion in Louisiana with few/no exceptions.
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zztop
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For me waiting to see what happens is a huge risk. On the other hand, this is a done deal, and nothing can really be done to stop her appointment. Thinking Roberts is going to be a stalwart defender of everything is not really a safe bet. For one, he will be gone sooner than she will be (retiring sooner since he is older - assuming nobody suddenly dies). So she is going to have decades to tear down what little progress there has been made. And nobody knows how Roberts will side every time. Maybe there is a good probability/hunch etc, but that is still too much of a gamble in my opinion.
When Thurgood Marshall retired, Bush I replaced him with Clarence Thomas which has gone on to be one of the most reliable and most conservative votes in Supreme Court history... and unsurprisingly, has voted to reverse almost everything Thurgood Marshall worked for in his entire career.
I can't see her being anything less that than, and now with a 6-3 majority, that is way too much tilt in a certain direction. There are other ramifications in the near term, like potentially the presidential election coming up etc. I wish I could find an article I was reading, theres a lot of stuff they can dismantle, not just the three I copy/pasted
zztop
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Lindsey Graham said opening statements from the committee and Barrett will take place on Oct. 12, a Monday. Tuesday and Wednesday of that week will allow committee members to question Barrett before the committee begins the markup process on Thursday.
Graham said he hopes to “get her out of the committee” by Oct. 26
Graham said he hopes to “get her out of the committee” by Oct. 26
superchuck500
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https://scholarship.law.nd.edu/law_faculty_scholarship/527/
This is the law review article Barrett co-wrote about "Catholic Judges in Capital Cases" where much of the discussion about her Catholicism is coming from. It's a lengthy piece that will be tedious to read, especially if you're not that familiar with reading law review articles. But I have read it and invite everyone to do so because it gives you a much better context to understand this issue - otherwise people are just sort of shooting in the dark on instinct and top-line characterizations.
First, there are some who, perhaps not understanding this origin, seem to find the discussion about her Catholicism to be simply the left looking for ways to attack her, so they employ the Catholic angle, which might come across as simply being anti-Catholic, prejudiced, and a relic of last century. I think this misses the point that Judge Barrett raised the issue herself in writing this article and, since, speaking about it. These aren't simply questions (or even attacks from some circles) lobbed purely on her status as a Catholic - she has made it clear that her Catholicism is front and center for her views, and a lens through which she interprets issues while on the bench.
It is indeed true that Judge Barrett states her belief that adherence to Catholic teaching takes precedence over her obligation to the law. If you want to skip to the good stuff in the article, you might want to skim until you get to page 314, Section I B, "The Binding Effect of Catholic Teaching". She describes abortion and euthanasia as "absolute" in their "prohibition" (something that is "absolutely prohibited" simply has no allowance for any context or consideration).
That said, one's faith or adherence to an established moral or ethical code is not, in and of itself, a disqualifying feature for a judge. The judicial codes of ethics and conduct do not require a judge to be so objective and dispassionate that the human being wearing the robe must cease to have religion or philosophy. Nor do they require that a judge with religion or philosophy must ignore or "turn it off" when on the bench.
But a judge must begin from a place of law, not of religion. The judge is not selected or sworn to apply any particular religion or philosophy ahead of the law - it is fundamental that the law must come first. In the second section of the article, Judge Barrett believes that the recusal process solves this problem. In other words, where the judge whose religion compels a result that diverges from what the law compels, the judge must refuse herself - and by thoughtful use of recusal, a judge like Barrett can allow her "adherence to Catholic teachings" and her sworn obligation to uphold the law to peacefully co-exist.
Of course, this is likely a dramatic oversimplification. In the context of the death penalty (which, in fairness, was the context of the article), these demarcations may be fairly easy to apply. The death penalty is only available where the law makes it available and there are generally very clear standards for when it applies. The article notes how different judicial roles prompt different relationships with the death penalty, and therefore, different analysis for whether the judge is actually participating in the execution in a way that her Catholicism would prohibit (which, therefore, requires recusal). For example, a sentencing judge has a different relationship to the defendant's execution than a judge on the appellate panel that votes against taking up a writ or habeas petition.
How this would all apply to Judge Barrett sitting on the Supreme Court is unclear. For example, her religion clearly compels her to view abortion as absolutely prohibited - which would appear to mean that she could never find that any law that allows for any kind of abortion to be acceptable. But if abortion is constitutional under existing law provided by Supreme Court stare decisis (precedent), does that mean that Barrett would have to recuse herself from any abortion case? Clearly that is not her intention. I think she has posited that the role of an appellate or Supreme Court judge ruling on the legality of an abortion statute is sufficiently separate from the act of an abortion that her religious and moral beliefs both do not require recusal nor to they compel her to refuse to apply the law.
I think this gives both her supporters and her detractors a basis to both support or criticize her. What is clear is that application of her beliefs to her work as judge is in a very close relationship. I think most of the general discussion about a judge's religious or moral views is broadly applicable to any candidate who adheres to such a code or teachings. I do believe that there is substantial concern any time any judge says that they are "compelled" to "adhere" to some source of authority that isn't (1) their own reasoned judgment, and/or (2) the law itself. I can understand why, for example, Senator Feinstein took this line of questioning in Judge Barrett's Seventh Circuit confirmation hearing. It is relevant and should be explored. But I don't think it's necessarily disqualifying - judges are human beings with beliefs. I also think, however, that it is clear that if confirmed, Justice Barrett will likely find it very difficult, if not impossible, to join any decision that upholds Roe v. Wade and/or its progeny.
I think, in the end, that's what is driving her nomination. She would be the youngest justice. She would be the only one without a JD from Yale or Harvard. She would be the only one who has never argued a case in court at trial or appellate. She has only three years on the bench and no other meaningful experience apart from academia. So why is she likely to be confirmed to the Court? Because Trump and elements of the American right have overturning Roe v. Wade as a priority of the highest order . . . and this is how to do it.
This is the law review article Barrett co-wrote about "Catholic Judges in Capital Cases" where much of the discussion about her Catholicism is coming from. It's a lengthy piece that will be tedious to read, especially if you're not that familiar with reading law review articles. But I have read it and invite everyone to do so because it gives you a much better context to understand this issue - otherwise people are just sort of shooting in the dark on instinct and top-line characterizations.
First, there are some who, perhaps not understanding this origin, seem to find the discussion about her Catholicism to be simply the left looking for ways to attack her, so they employ the Catholic angle, which might come across as simply being anti-Catholic, prejudiced, and a relic of last century. I think this misses the point that Judge Barrett raised the issue herself in writing this article and, since, speaking about it. These aren't simply questions (or even attacks from some circles) lobbed purely on her status as a Catholic - she has made it clear that her Catholicism is front and center for her views, and a lens through which she interprets issues while on the bench.
It is indeed true that Judge Barrett states her belief that adherence to Catholic teaching takes precedence over her obligation to the law. If you want to skip to the good stuff in the article, you might want to skim until you get to page 314, Section I B, "The Binding Effect of Catholic Teaching". She describes abortion and euthanasia as "absolute" in their "prohibition" (something that is "absolutely prohibited" simply has no allowance for any context or consideration).
That said, one's faith or adherence to an established moral or ethical code is not, in and of itself, a disqualifying feature for a judge. The judicial codes of ethics and conduct do not require a judge to be so objective and dispassionate that the human being wearing the robe must cease to have religion or philosophy. Nor do they require that a judge with religion or philosophy must ignore or "turn it off" when on the bench.
But a judge must begin from a place of law, not of religion. The judge is not selected or sworn to apply any particular religion or philosophy ahead of the law - it is fundamental that the law must come first. In the second section of the article, Judge Barrett believes that the recusal process solves this problem. In other words, where the judge whose religion compels a result that diverges from what the law compels, the judge must refuse herself - and by thoughtful use of recusal, a judge like Barrett can allow her "adherence to Catholic teachings" and her sworn obligation to uphold the law to peacefully co-exist.
Of course, this is likely a dramatic oversimplification. In the context of the death penalty (which, in fairness, was the context of the article), these demarcations may be fairly easy to apply. The death penalty is only available where the law makes it available and there are generally very clear standards for when it applies. The article notes how different judicial roles prompt different relationships with the death penalty, and therefore, different analysis for whether the judge is actually participating in the execution in a way that her Catholicism would prohibit (which, therefore, requires recusal). For example, a sentencing judge has a different relationship to the defendant's execution than a judge on the appellate panel that votes against taking up a writ or habeas petition.
How this would all apply to Judge Barrett sitting on the Supreme Court is unclear. For example, her religion clearly compels her to view abortion as absolutely prohibited - which would appear to mean that she could never find that any law that allows for any kind of abortion to be acceptable. But if abortion is constitutional under existing law provided by Supreme Court stare decisis (precedent), does that mean that Barrett would have to recuse herself from any abortion case? Clearly that is not her intention. I think she has posited that the role of an appellate or Supreme Court judge ruling on the legality of an abortion statute is sufficiently separate from the act of an abortion that her religious and moral beliefs both do not require recusal nor to they compel her to refuse to apply the law.
I think this gives both her supporters and her detractors a basis to both support or criticize her. What is clear is that application of her beliefs to her work as judge is in a very close relationship. I think most of the general discussion about a judge's religious or moral views is broadly applicable to any candidate who adheres to such a code or teachings. I do believe that there is substantial concern any time any judge says that they are "compelled" to "adhere" to some source of authority that isn't (1) their own reasoned judgment, and/or (2) the law itself. I can understand why, for example, Senator Feinstein took this line of questioning in Judge Barrett's Seventh Circuit confirmation hearing. It is relevant and should be explored. But I don't think it's necessarily disqualifying - judges are human beings with beliefs. I also think, however, that it is clear that if confirmed, Justice Barrett will likely find it very difficult, if not impossible, to join any decision that upholds Roe v. Wade and/or its progeny.
I think, in the end, that's what is driving her nomination. She would be the youngest justice. She would be the only one without a JD from Yale or Harvard. She would be the only one who has never argued a case in court at trial or appellate. She has only three years on the bench and no other meaningful experience apart from academia. So why is she likely to be confirmed to the Court? Because Trump and elements of the American right have overturning Roe v. Wade as a priority of the highest order . . . and this is how to do it.
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And to be clear, looking at that language, she would deny abortion to any woman, no matter what? That is what it looks like to me. No exceptions for rape, incest, danger to the life of the woman?
Compared to where the majority of people in this country are with their beliefs, this is a radical view.
Compared to where the majority of people in this country are with their beliefs, this is a radical view.
superchuck500
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As I read it, she says that abortion is "absolutely prohibited" under church teachings that she is bound to follow. I don't see how that leaves any exceptions.
But that's just from this text, I think she has spoken or written about it elsewhere (including in 7th Circuit opinions, I believe). So her current views might not be as absolute, I'm not sure.
superchuck500
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Here is Judge Barrett's law review piece from early 2017, before her nomination to the 7th Circuit bench, wherein she argues that the Roberts majority in the ACA case interpreted the law beyond the limits of what its text provides. See discussion beginning p. 80.
https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=2330&context=law_faculty_scholarship
https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=2330&context=law_faculty_scholarship
JimEverett
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What language are we talking about? The language in the law review article? I do not see anything about abortion, but I skimmed it.
If the idea is to equate capital punishment and abortion - in terms of Catholic teachings: I think both are prohibited, then concerns with her position as expressed in the law review article should be laid to rest. A quick search shows that she voted, twice (once in the original order, and again on the panel), to overturn a stay of carrying out a death sentence.
superchuck500
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"The [Catholic Church's] prohibitions against abortion and euthanasia (properly defined) are absolute; those against war and capital punishment are not." p. 307.
wardorican
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I heard someone on NPR, so I'm going off memory, that she had made a statement that she wouldn't overturn Roe V Wade, which is always an overly simplistic question/comment. I do think later term abortions would be less likely to remain.
To me, that still operates within the framework of Roe V Wade and Casey... it's just tweaking the balance of the State's compelling interest vs the individual's rights.
Honestly, I'd be more concerned about the ACA, but that's already been pretty well gutted.
To me, that still operates within the framework of Roe V Wade and Casey... it's just tweaking the balance of the State's compelling interest vs the individual's rights.
Honestly, I'd be more concerned about the ACA, but that's already been pretty well gutted.
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