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Amy Coney Barret SCOTUS nomination thread


Muda69
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Amy Coney Barrett Will Be Confirmed for the Best Reasons: https://spectator.org/amy-coney-barrett-will-be-confirmed-for-the-best-reasons/

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The hearings for Judge Amy Coney Barrett are mercifully over. The frustrated Democratic minority tossed in the kitchen sink and more against her. However, she proved to be the most difficult kind of judicial nominee to attack.

 

Her academic and legal credentials are impressive. Her personal life is warm and welcoming, evidencing someone who cares about more than just law books and jurisprudential principles. Her demeanor suggests someone who would handle high court responsibilities seriously and fairly. Her record as an appellate judge is intellectually solid, respectful of precedent, and reflective of nuance.

Still, should the Senate vote to confirm?

The ultimate issue is whether she would faithfully fulfill the role of a Supreme Court justice. Although there are more than enough complex jurisprudential visions to go around, the choice broadly comes down to two. Does one want to do law, essentially figuring out what lawmakers enacted and whether that comports with the Constitution? Or does one want to do policy, essentially making up “the law” as one goes along, acting as a legislator and voting on what one believes to be good legislation?

This distinction was evident the moment Barrett was nominated. Her public record suggests a commitment to the former. Of course, even a seeming “originalist” on a lower court can turn into a legislator-wannabe when elevated to the Supremes, whose decisions are final. The list of awful Republican nominees — from William Brennan to David Souter — is long. All were thought to be judges but ended up acting like legislators. Nevertheless, Barrett’s record suggests that she really plans to be a jurist, not a legislator, if approved to sit on the Supreme Court.

But progressives have given up any pretense of believing that judges at any level should just be judges. For the Left the courts are another legislative arena. In this view, judges should ensure the right political results. While it is convenient if there is statutory or constitutional language available to torture, so the ruling appears to be vaguely related to some statutory or constitutional provision, the lack thereof is no barrier. After all, there always are penumbras and emanations to explore!

Political judges are especially useful when progressives lose legislative fights. If the people and their representatives say no to one or another statist fantasy, then demand that unelected judges act as elected lawmakers. The Left now unashamedly expects judges to make purely political decisions, irrespective of the legal gloss. If a libertarian/conservative-leaning jurist doesn’t rule that the law automatically produces a leftish result, a hue and cry goes up that the judge is against the policy result, even though he or she made their decision based on legal principles.

The standard is Roe v. Wade, which legalized abortion across the country even though the procedure was prohibited across the country when the 14th Amendment, upon which the majority based its decision, was passed. Even many liberal legal scholars initially admitted that Roe was a legislative, not judicial, decision and could not be justified on constitutional grounds. When Republicans subsequently made judicial appointments an issue, Democrats complained about “litmus tests” for judicial nominees.

Today, however, the Left has made the completely unrestricted killing of babies a bedrock issue. Even late-term abortion, as close to infanticide as one can get before a fetus has escaped the womb, is now an article of faith. For the Left Roe has become an uber-duber “super-precedent” which must be upheld no matter what. Law and Constitution be damned!

To stray from that stance one is denounced for the legal equivalent of crimes against humanity. Barrett demonstrated integrity, intelligence, and common sense in refusing to endorse Roe as immutable, handed down from on high, unquestionable by mere mortals, and thus equivalent to the 11th Commandment.

However, weirdly, the key political issue this judicial fight appears to be the misnamed Affordable Care Act. The measure proved to be anything but affordable to normal people and directly provided no care. The number of uninsured changed only marginally, and mostly in response to the expansion of Medicaid, which did not depend on the Rube Goldberg system of insurance regulation. However, the measure has taken on talismanic significance, perhaps because the Democrats spent a half century pushing national health insurance. It would be psychologically devastating to admit that they bungled the job.

For instance, Senate Minority Leader Chuck Schumer charged that Barrett “wants to take away your health care.” Sen. Dick Durbin, a member of the Judiciary Committee, opined that one of the opposition’s “starting points” was “the importance of the Affordable Care Act.” Presidential nominee Joe Biden claimed that President Donald Trump was using the Barrett nomination “to fulfill his explicit mission: steal away the vital protections of the ACA from countless families that have come to rely on them.”

The left-wing website AlterNet dismissed as unbelievable Barrett’s testimony that “I think that your concern is that because I critiqued the statutory reasoning, that I’m hostile to the ACA. And that because I’m hostile to the ACA, that I would decide a case in that particular way. And I assure you, I am not. I’m not hostile to the ACA. I’m not hostile to any statute that you pass.” Passionate lefties cannot imagine a judge not fixated on politics who would make decisions based on the law.

Even more fevered and bizarrely hysterical was the argument from Laura Packard, whose article was entitled “I survive cancer, but I fear Amy Coney Barrett on the Supreme Court.” Packard said she is uninsurable and without the ACA would “be bankrupt or dead without insurance.” Which she equates with the ACA. So if you vote for Barrett, you are voting to kill Packard. Never mind America’s Constitution, federal law, judicial responsibility, and good sense. None of these matter.

I faced similar hysterical and mindless, though impassioned and heartfelt, sentiments when I debated the ACA’s constitutionality after the measure’s passage. One law student — who apparently learned nothing of the law while studying law in law school — argued that the ACA had to be constitutional because he had a close relative who benefited from it. Imagine if segregation was judged by the same standard: Plessy v. Ferguson should have been upheld because some Southern whites prospered as a result. Never mind what the Constitution required.

How to address concerns of people like Packard lies with Congress. Agree with Obamacare or not. The decision on it is, or at least should be, political and legislative. A good society should find a solution for problems in access to health care. But policymakers should follow the law in doing so. They should draft legislation consistent with the Constitution.

There are a multitude of methods to extend health-care coverage, but that doesn’t mean all are constitutional. Would Packard so enthusiastically defend a measure that conscripted doctors and nurses to work at slave wages serving the public? The ACA’s infirmities are less obvious, but that doesn’t mean they are less real.

Ultimately, the problem is that the Left no longer cares about the Constitution. Whatever progressives want is by definition constitutional. There are no limits to government power other than those they favor — basically, sex should be unhindered, while the state can regulate everything else. If you are so retrograde as to argue that government has exceeded its power, then obviously you are against the legislation’s purpose. You just might want to kill Packard and others like her.

The ACA was a thoughtful but flawed attempt to “fix” a messy hybrid system, which government largely controlled while leaving execution to private actors. There is broad support for mandating community rating and restricting pricing for preexisting conditions. But alone such provisions disrupt health care because “young invincibles” flee the market rather than pay for old fogeys like me. So Obamacare mandated health insurance, a provision most everyone hated. Ordering people to buy health insurance meant the government decided what kind of policies were necessary, which meant allowing the usual interest groups to force all of us to pay for all sorts of benefits, many of which no normal human being desired. Or political mandates, such as contraception, in order to discomfit groups and beliefs that the Obama administration despised. So premiums sky-rocketed. Which caused even more young invincibles to flout the mandate. Causing insurers to lose money. And so the spiral went.

The basic constitutional problem is that Congress has no power to order people to buy insurance, that is, to create commerce rather than regulate what already exists. The four lefties on the high court didn’t care, since their view was that they were de facto legislators entitled to vote on the ACA on its merits. Four of the center-right justices decided that the Commerce Clause required actual commerce for the government to regulate. Justice John Roberts believed that as well, but didn’t want the high court to look political, so he penned a solo opinion that the ACA was a tax, which made the legislation constitutional. Serious constitutional scholars dismissed this argument. Even the Supreme Court’s liberals dismissed the claim on substance, but they embraced it for its results. Thus Roberts’ dishonest pragmatism saved the measure.

Since then Congress eliminated the mandate/tax, which removed the supposed constitutional justification for the legislation. Lawsuits then were filed seeking to toss the entire act. The ACA’s defenders insist that the requirement should be severed from the rest of the act. The decision could go either way. The Supreme Court will decide.

Hence the opposition’s focus on what Barrett thinks about the ACA.

If the law falls, the fault would not be Barrett’s. Rather, blame would belong to legislators who did not conform their measure to the Constitution. Nothing blocks Congress from addressing health care. However, the Constitution does not authorize every means of addressing health care. Lefties are angry that their poor handiwork is being judged in federal court by legal, not policy, standards. But that is exactly what the courts are supposed to do.

Left-wing scaremongers also are raising alarm over climate change. The New York Times headlined a front-page story: “Barrett Ducks Climate Issue, Raising Alarm.” Why is she even being questioned about climate science and appropriate policy responses? Apparently environmental activists haven’t noticed, but she was nominated to be a judge, not EPA administrator. In fact, Barrett reasonably responded, “I will not express a view on a matter of public policy, especially one that is politically controversial.” Why should she?

Her views should be irrelevant to the environmental movement. She won’t stop their activity. Indeed, her view is an invitation for them to focus on the political process. An article in the Financial Times observed, “Supreme Court’s rightward tilt means climate activists must focus on Congress.” Which is what they always should have done. The Supreme Court has no policy role and should not twist legislation passed decades ago to address issues of far more recent vintage. Lawmakers at the state and federal level should do their job and legislate when necessary.

Nor is fearmongering over Obergefell v. Hodges, the ruling on gay marriage, justified even for gay activists. Like abortion, this issue was gradually advancing across the U.S. states as states played their traditional role as laboratories of democracy. Generational change guaranteed the ultimate outcome. As recently as 2008 California voted against gay marriage. That result is unimaginable today. As with Roe, the justices short-circuited the political process, but even a strengthened conservative majority would be unlikely to reverse Obergefell: the generations continue to advance, strengthening the opinion’s democratic foundations. Even more important, thousands of gays have married, creating a large reliance interest. Almost certainly a Court with Barrett as a member would leave the issue undisturbed.

The Senate has plenary authority to decide on Barrett’s nomination. However, the decision should be based on whether she would act as a judge and do law, that is, decide what legislation means and how the Constitution should be applied in a given situation. She should not be assessed as if she was running for a legislative seat, selected or rejected based on her support for the Left’s policy agenda.

If Democrats win the presidency and Congress on November 3, they will have a chance to transform the country. If they lose the political campaign, they should not ask the courts to do their dirty work. Especially at the Supreme Court, justices should be judges, not legislators.

Agreed.  

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Barrett confirmed as Supreme Court justice in partisan vote: https://apnews.com/article/election-2020-donald-trump-virus-outbreak-ruth-bader-ginsburg-amy-coney-barrett-82a02a618343c98b80ca2b6bf9eafe07

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Amy Coney Barrett was confirmed to the Supreme Court late Monday by a deeply divided Senate, Republicans overpowering Democrats to install President Donald Trump’s nominee days before the election and secure a likely conservative court majority for years to come.

Trump’s choice to fill the vacancy of the late liberal icon Ruth Bader Ginsburg potentially opens a new era of rulings on abortion, the Affordable Care Act and even his own election. Democrats were unable to stop the outcome, Trump’s third justice on the court, as Republicans race to reshape the judiciary.

Barrett is 48, and her lifetime appointment as the 115th justice will solidify the court’s rightward tilt.

Monday’s 52-48 vote was the closest high court confirmation ever to a presidential election, and the first in modern times with no support from the minority party. The spiking COVID-19 crisis has hung over the proceedings. Vice President Mike Pence’s office said Monday he would not preside at the Senate session unless his tie-breaking vote was needed after Democrats asked him to stay away when his aides tested positive for COVID-19. His vote was not necessary.

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Issues important to Trump await Barrett on Supreme Court: https://apnews.com/article/election-2020-donald-trump-virus-outbreak-pennsylvania-amy-coney-barrett-9740501906f6aef1cd85b062e3ed788b

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Amy Coney Barrett’s first votes on the Supreme Court could include two big topics affecting the man who appointed her.

The court is weighing a plea from President Donald Trump to prevent the Manhattan district attorney from acquiring his tax returns. It is also considering appeals from the Trump campaign and Republicans to shorten the deadline for receiving and counting absentee ballots in the battleground states of North Carolina and Pennsylvania.

It’s not certain Barrett will take part in any of these issues, but she will make that call.

Barrett was confirmed Monday by the Senate in a 52-48 virtual party line vote. She is expected to begin work as a justice on Tuesday after taking the second of two oaths required of judges by federal law. No justice has assumed office so close to a presidential election or immediately confronted issues so directly tied to the incumbent president’s political and personal fortunes.

At 48, she’s the youngest justice since Clarence Thomas joined the court in 1991 at age 43.

Other election-related issues are pending at the high court, which next week also will hear a clash of LGBTQ rights and religious freedoms. The fate of the Affordable Care Act is on the agenda on Nov. 10, and Trump himself last week reiterated his opposition to the Obama-era law. “I hope they end it,” he said in an interview with CBS News’ “60 Minutes.”

On Friday, Barrett, the most open opponent of abortion rights to join the court in decades, also could be called upon to weigh in on Mississippi’s 15-week abortion ban. The state is appealing lower court rulings invalidating the ban. Abortion opponents in Pittsburgh also are challenging a so-called bubble zone that prevents protesters from getting too close to abortion clinics.

The court put off acting on both cases before Barrett joined the court, without offering any explanation in the Mississippi case. It ordered Pittsburgh to file a response to the appeal filed by the protesters, who call themselves sidewalk counselors.

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Barrett is joining the court at an unusual moment. The justices are meeting remotely by telephone because of the coronavirus pandemic, both for their private conferences and public argument sessions, at least through the end of 2020. The public can listen to the arguments as they take place, a change also resulting from the court’s response to the pandemic.

After her first private conference with her new colleagues on Friday, two weeks of arguments begin on Monday. In an institution that pays strict attention to seniority, Barrett will go last in the private and public sessions.

As she settles into her new office at the court, Barrett will be joined by four law clerks, usually recent law school graduates who have experience working for federal judges.

When the court reopens to the public and the justices return to the courtroom, Barrett is expected to assume several duties reserved for the court’s junior justice. She will be a member of the committee that oversees the court’s public cafeteria, and the person who takes notes and answers the door when someone knocks during the justices’ private conferences.

Get the job, go straight to work.   It is the American Way.

 

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8 minutes ago, DanteEstonia said:

Tell me where, then.

Easy.  Let's say when Mr. Biden is elected him and the Democrats decide to add six new seats to the SCOTUS in order to combat this supposed "conservative bias" with the existing justices.  Mr. Biden then fills those new seats with more 'liberal leaning' appointments.   All is well and good, right?   

Now what is to prevent the Republican from doing the exact same thing when their party comes back into power?  And now we go from a 15-seat SCOTUS to a 21-seat SCOTUS.  

Wash. Rinse. Repeat.   And any confidence and faith in our judicial governmental system goes right down the toilet.

 

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1 hour ago, Muda69 said:

Easy.  Let's say when Mr. Biden is elected him and the Democrats decide to add six new seats to the SCOTUS in order to combat this supposed "conservative bias" with the existing justices.  Mr. Biden then fills those new seats with more 'liberal leaning' appointments.   All is well and good, right?   

Now what is to prevent the Republican from doing the exact same thing when their party comes back into power?  And now we go from a 15-seat SCOTUS to a 21-seat SCOTUS.  

Wash. Rinse. Repeat.   And any confidence and faith in our judicial governmental system goes right down the toilet.

 

This is exactly what will happen.  Wasn't Barry the one who said "elections have consequences"?  

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3 hours ago, Muda69 said:

Easy.  Let's say when Mr. Biden is elected him and the Democrats decide to add six new seats to the SCOTUS in order to combat this supposed "conservative bias" with the existing justices.  Mr. Biden then fills those new seats with more 'liberal leaning' appointments.   All is well and good, right?   

Now what is to prevent the Republican from doing the exact same thing when their party comes back into power?  And now we go from a 15-seat SCOTUS to a 21-seat SCOTUS.  

Wash. Rinse. Repeat.   And any confidence and faith in our judicial governmental system goes right down the toilet.

 

 

1 hour ago, raiderx2 said:

This is exactly what will happen.  Wasn't Barry the one who said "elections have consequences"?  

I would, in all sincerity, like to hear from someone - anyone - who thinks that scenario is a good idea. I mean, good for the republic.

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13 minutes ago, Bobref said:

 

I would, in all sincerity, like to hear from someone - anyone - who thinks that scenario is a good idea. I mean, good for the republic.

So would I.

I recently read about a proposed change to the SCOTUS that I believe at least merits thought and discussion:

A constitutional amendment that:

     a) Set the number of seats on the SCOTUS to nine.

    b) Sets a term limit of 18 years for Supreme Court Justices.

 

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48 minutes ago, Muda69 said:

So would I.

I recently read about a proposed change to the SCOTUS that I believe at least merits thought and discussion:

A constitutional amendment that:

     a) Set the number of seats on the SCOTUS to nine.

    b) Sets a term limit of 18 years for Supreme Court Justices.

 

A constitutional amendment in the current political climate is probably a non-starter.

If I were to favor any change like that, it would be a mandatory retirement age, not a term limit.

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9 minutes ago, Bobref said:

A constitutional amendment in the current political climate is probably a non-starter.

If I were to favor any change like that, it would be a mandatory retirement age, not a term limit.

Yeah,  I agree about the possibility of the amendment.

The issue as I see it with a mandatory retirement age is that it would probably nudge Presidents to nominate younger and younger individuals to the court.  Is this what we want?  How much judiciary experience should a potential justice have?

 

 

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6 hours ago, Muda69 said:

Easy.  Let's say when Mr. Biden is elected him and the Democrats decide to add six new seats to the SCOTUS in order to combat this supposed "conservative bias" with the existing justices.  Mr. Biden then fills those new seats with more 'liberal leaning' appointments.   All is well and good, right?   

Now what is to prevent the Republican from doing the exact same thing when their party comes back into power?  And now we go from a 15-seat SCOTUS to a 21-seat SCOTUS.  

Wash. Rinse. Repeat.   And any confidence and faith in our judicial governmental system goes right down the toilet.

 

That's on Mitch McConnel for saying-  “All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.”

 

https://www.brookings.edu/blog/fixgov/2020/09/24/mcconnells-fabricated-history-to-justify-a-2020-supreme-court-vote/

Turnabout is fair play. 

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3 hours ago, Muda69 said:

So would I.

I recently read about a proposed change to the SCOTUS that I believe at least merits thought and discussion:

A constitutional amendment that:

     a) Set the number of seats on the SCOTUS to nine.

    b) Sets a term limit of 18 years for Supreme Court Justices.

 

I would do what many State governments do (which includes Indiana) and get rid of the power of the executive to appoint Justices. 

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5 hours ago, DanteEstonia said:

That's on Mitch McConnel for saying-  “All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.”

 

https://www.brookings.edu/blog/fixgov/2020/09/24/mcconnells-fabricated-history-to-justify-a-2020-supreme-court-vote/

Turnabout is fair play. 

Tit-for-tat is for children.

 

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1 hour ago, Muda69 said:

?  I don't recall the number of seats on the SCOTUS being enumerated in the U.S. Constitution.

Yeah, it’s not. Congress fixed the number at 9 about 150 yrs. ago. Somehow, we’ve managed to get by with that number since.

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4 hours ago, raiderx2 said:

https://www.csmonitor.com/USA/Politics/Politics-Voices/2014/1121/Elections-have-consequences-Does-Obama-regret-saying-that-now   

Pretty simple search Dante, what's your point?  You think he didn't say it?  Are you too young to remember when Barry said this?

The burden of proof is on he who accuses. You accuse, therefore you bear the burden. 

7 hours ago, Bobref said:

Yeah, it’s not. Congress fixed the number at 9 about 150 yrs. ago. Somehow, we’ve managed to get by with that number since.

Until this little quote was uttered-

https://www.brookings.edu/blog/fixgov/2020/09/24/mcconnells-fabricated-history-to-justify-a-2020-supreme-court-vote/

From the article: 

Quote

“All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.”

See @raiderx2 how I cite my sources?

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