09:37, October 14 49 0 theguardian.com

2020-10-14 09:37:04
The problem with Amy Coney Barrett's nomination isn't timing. It's her views

The nomination of Amy Coney Barrett to the US supreme court has been controversial in large part because Republicans are so obviously violating the standard they used to justify keeping Merrick Garland off the supreme court during Obama’s second term. But that hypocrisy has overshadowed the much more important matter: the substance of Barrett’s record, and her likely actions as a supreme court justice.

Barrett’s rulings on the seventh circuit court of appeals show her to be someone who cares little about justice, and who doesn’t particularly value the interests of workers, immigrants and the poor. In case after case, she has found procedural technicalities to justify depriving people of their basic rights, and it’s clear that on some of the most important issues of our time, she would swing the supreme court in a direction nobody should want to see it go.

Take policing. This year saw the eruption of massive Black Lives Matter protests all over the country as a reaction to police violence, with the deaths of George Floyd and Breonna Taylor outraging millions of people. But as a judge, Barrett has shown little interest in rectifying racial injustice. In the case of Torry, et al v City of Chicago, et al, she concluded that officers were reasonable in stopping and harassing a group of Black men even though there was absolutely no evidence that they had committed a crime. In Biegert v Molitor, et al, Barrett sided with police who shot a mentally ill man to death after his mother had called 911. In United States v Wilson, Barrett concurred with a decision that officers had reasonable suspicion to use force to detain a Black man when he ran away from them, because he had a “bulge in his pocket” and was in a “high-crime area”, in part because a “reasonable officer could infer from Wilson’s flight that Wilson knew he was in violation of the law”. And in Sims v Hyatte, Barrett indicated that she would have kept a Black man in prison who had been convicted on the basis of incredibly dubious eyewitness testimony.

Barrett’s attitude has been the same on other issues. On immigration, she has indicated that she would defer to the executive branch’s absurd reasons for denying visas to lawful immigrants, without requiring the Trump administration to justify its decisions. She has ruled against prisoners, workers, debtors, and consumers, and there is reason to believe she would rule against the Affordable Care Act if the issue came before her.

Barrett’s body of rulings is not that large, making it difficult to extrapolate how she would rule on important issues if elevated to the supreme court. But we have ample reason to believe that Barrett, a conservative Catholic, is hostile to abortion rights and might overturn Roe v Wade when she had a chance. In addition to being a conservative Catholic, Barrett is a self-described legal “originalist” who almost certainly believes Roe was a legally shoddy opinion. (Even Ruth Bader Ginsburg was not that confident in the legal grounds for the ruling.)

There is one perspective on law that suggests judges should be evaluated on the basis of their “qualifications” rather than their “politics”. This point of view has led the liberal Harvard Law professor Noah Feldman to endorse Barrett, on the grounds that she is intelligent and experienced. Some of the same arguments were made about Brett Kavanaugh. If you think in terms of qualifications, it’s difficult to come up with good reasons to oppose conservative judges. After all, many conservatives went to top-ranked law schools and published journal articles. I suspect that this is part of why Democratic opposition to Barrett has not been as strong as it should be, and the focus has been on Republican hypocrisy rather than Barrett’s record. Slate’s Mark Joseph Stern even argues that Democrats have “privately given up” on opposing Barrett.

But they shouldn’t. The fact that Barrett is “qualified” does not automatically entitle her to a supreme court seat – and her politics are enough to justify trying to keep her off it. Barrett’s views are almost certainly far to the right of the average American, and her elevation to the court will make that body even less representative of a complex and rapidly changing society. Judging is a political act; supreme court justices do not, as John Roberts famously insisted, merely “call balls and strikes” like neutral umpires. Instead, they impose their personal convictions on the country through rulings on questions that affect us all. Conservative judges tend to be less sympathetic to the relatively powerless, and this comes out in their rulings. If you care about protecting the legal rights of the powerless, you have good reason to oppose the confirmation of hardline conservatives onto the court no matter which law school they went to or how many years they have previously served on the bench.

The primary reason Barrett needs to be opposed is not that she has been nominated during an election year, but that she has been nominated at all. Her record as a federal appeals court judge indicates that she will issue politically conservative rulings with harmful social consequences. Democrats need to unanimously oppose her and use all of the procedural weapons at their disposal to reduce the chances of her successful confirmation.

  • Nathan Robinson is a Guardian US columnist

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