No, Barrett Should Not Recuse Herself From Any Election Challenge

Minority Leaders Chuck Schumer and various commentators have called for Amy Coney Barrett to recuse herself from any decision on the 2020 general election. There is no reason for such a recusal, which would be unprecedented in these circumstances.  Moreover, it would establish a dangerous precedent of nominees securing their positions by promising results or positions if confirmed by the Senate.

In today’s USA Today, Mario Nicolais, a Republican who is an adviser to the anti-Trump Lincoln Project, calls for such a recusal to counter “the corrupting influence Trump can exert on another coequal branch of government” and preserve the appearance of impartiality of the Court.

Such a pledge however would not preserve impartiality but destroy it. It would be a promise to enhance the chances for Democrats in any challenge by removing her vote — as a condition for confirmation.  Ironically, it would be precisely the type of pledge that Ruth Bader Ginsburg refused to make on cases when she established the “Ginsburg Rule.” She considered it improper and unethical to demand from concessions or promises from a nominee.

We do not know how Barrett would rule on any election challenge. There is no basis in her background as either an academic or a judge to assume that she would vote against any Democratic position or advance any “corrupt” purposes of the President. It is insulting to suggest that her nomination was made for that purpose. The assumption of such blind bias says more about those demanding a baseless recusal than it does Judge Barrett.

When I testified in favor of the confirmation of Neil Gorsuch, I told the Senate that he was an intellectual who, in my view, would not hesitate to vote against the Administration if he believed it was wrong on the law. He has done so repeatedly.  Indeed, the Trump nominees have repeatedly voted with their liberal colleagues on major cases. Notably, Ginsburg actually was one of the least likely justices in history to do so. She had one of the most consistent voting records on the left of the Court in history.

Nevertheless, Nicolais declared that Barrett “must immediately and unequivocally announce her intention to recuse herself from cases related to the 2020 presidential election.”  This demand is entirely at odds with the standards used for recusal on the Court. Recusals are relatively rare on the Court but tend to occur when a justice voted on any underlying case as a lower court judge, played a role in the underlying policy as an executive branch official, or has come personal interest in the outcome of the case.  None of those rationales would apply in this case. Instead, Barrett is being asked to promise to step aside to reduce the expected votes for the Administration.

If critics truly want to fight corruption on the Court, they should not seek to introduce the ultimate corruption of conditional confirmations. Barrett should make no such pledge as a condition for her confirmation and, absent a real conflict with a given case, she should rule on cases as mandated under the Constitution.

 

92 thoughts on “No, Barrett Should Not Recuse Herself From Any Election Challenge”

  1. Biden said he is running as a proud Democrat for the Senate.

    https://twitter.com/TrumpWarRoom/status/1315717708734959619?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1315717708734959619%7Ctwgr%5Eshare_3&ref_url=https%3A%2F%2Fwww.thegatewaypundit.com%2F2020%2F10%2Fwrong-old-joe-biden-tells-ohio-crowd-running-proud-democrat-senate-video%2F

    Keep telling us there is nothing wrong with this guy. Is this as newsworthy as ‘the fly’. Bet it won’t be covered unless by ‘covered’ one means smothered.

  2. Al Gore filed 7 different lawsuits, that I know of, challenging Bush. It was the Supreme Court that finally put stop to the constant recounting. As I recall, Bush won after 5 recounts. It was my perception that Al Gore wanted to keep recounting, but only in districts that skewed Democrat, until he finally got a recount that put him the winner. After 5 recounts, the court ended it and declared Bush the winner.

    What shall we do if we have a split Court? Since Barrett is an originalist, she’s going to apply the law as it was written. That’s exactly the jurisprudence the country needs. The most just.

    In spite of all the Democrat pundits claiming Trump won’t accept the results of the election, it is Biden who bragged about having 600 lawyers ready to challenge the election.

    Meanwhile, after disdainfully dismissing Republican concerns about the predictable problems in a nationwide mail in election, Democrats are putting out PSAs, some of them with painfully naked celebrities, warning voters that if they don’t assemble their ballots just so, they will be thrown out. It’s a paradox. Democrats claim there is nothing to worry about with a mail in election, but then release all these videos about how worried they are about a mail in election.

    There are going to ballots thrown out, missing, not counted, rejected. This may well be the most litigated election in history, worse than the Recount of 2000.

    We need to be prepared with 9 on the Court.

  3. do you think it’s impossible for politicians to work in a more bipartisan manner for the good of the country rather than the good of their party?

    It apparently hasn’t dawned on you yet that ACB would be a bipartisan nominee and good for the country if the Democratic party hadn’t become hostile to the constitution and the separation of powers.

    1. Merrick Garland would have been a a bipartisan nominee and good for the country if the Republican party hadn’t become hostile to the constitution and let Mitch take the Senate’s power away. Mitch wouldn’t let the Senate vote.

      1. Then make a constitutional argument proving McConnell carried out his duties unconstitutionally. You haven’t and you cannot. To further prove the point, the election gave us a Republican President and a Republican majority in the Senate. Constitutional cased closed.

        1. Right after you make a constitutional argument proving that the Democrats carried out their duties unconstitutionally. Watch that you don’t trip on those goalposts while you move them.

          1. Right after you make a constitutional argument proving that the Democrats carried out their duties unconstitutionally.

            I don’t need to prove an argument I never made. You on the other hand alleged McConnell and the Republicans became hostile to the constitution. You haven’t lost your turn.

            Good luck.

            1. If you can turn “if the Republican party hadn’t become hostile to the constitution and let Mitch take the Senate’s power away” into “McConnell carried out his duties unconstitutionally,” then I can turn “if the Democratic party hadn’t become hostile to the constitution and the separation of powers” into “the Democrats carried out their duties unconstitutionally”.

  4. REPUBLICANS HAVE ‘STACKED’ THE COURTS

    It begins with arguably the most consequential judicial gamesmanship in modern political history: Republicans’ blockade of President Barack Obama’s judicial nominees. When they were in the minority, they exploited the filibuster and “blue slips” (the ability of home-state senators to unilaterally block a judge) to resolutely prevent Obama from filling vacancies. This eventually drew then-Senate Majority Leader Harry M. Reid (D-Nev.) to invoke the nuclear option in 2013 — i.e., eliminating the 60-vote threshold.

    But then, in 2014, the GOP won back the Senate, making new Majority Leader Mitch McConnell’s (R-Ky.) blockade power absolute. So when Supreme Court Justice Antonin Scalia died in early 2016 and Obama nominated Merrick Garland, the GOP simply refused to even consider the nomination. In doing so, it invoked a supposed rule about presidential-election-year Supreme Court nominations that it has now conveniently disregarded for Barrett.

    The combined effect was a huge number of vacancies awaiting the next president who had a Senate controlled by his own party, which wound up being Donald Trump. The GOP Senate over the final two years of Obama’s presidency confirmed 28 percent of his nominees — less than half the rate of the previous four presidents. It confirmed 22 in total, which was the lowest number for a two-year span since 1951-52 and far shy of the 68 that a Democratic-controlled Senate confirmed in President George W. Bush’s final two years. In sum, Trump walked into office with more than 100 vacancies ready to be filled, including one on the Supreme Court.

    Edited From: “The GOP’s Court Stacking”

    Today’s Washington Post

  5. My question for the Lawyers on this site, if the Supreme Court was hung 4to4 would not the House of Representatives not have right to select next President and Crown The Speaker temp President?

    1. IANAL, but if SCOTUS splits 4-4, the lower court ruling is upheld. It only goes to the House if the EC doesn’t vote.

  6. Any “corrupting influence” over the court would involve expanding it, all at once, in order to stuff it with politicized ideologues.

    Honestly, I don’t know how any Democrat could lecture anyone about the sanctity of the Court with a straight face.

  7. Democrats Hiss In Terror As ACB Pulls Out Crucifix

    WASHINGTON, D.C.—Amy Coney Barrett has eloquently defended herself through the Senate confirmation hearings this morning. But as Dems grew increasingly vicious, she was forced to turn to desperate measures.

    After several hours of hearings, Barrett pulled out a large crucifix and held it aloft. A light shone from the heavens, and the Democrats knew they were defeated.

    They shrunk back and began to hiss. “Noooo!” cried Senator Richard Blumenthal. “It burns us! Take it away!” He dove under his desk to hide from its light.

    “Agggghhhh!!!” screamed Senator Cory Booker, his skin sizzling at the sight of Jesus on the cross. “I’ll get you one day, Barrett!”

    “Looks like Booker’s blasting off again!” he shouted as he jumped through the wall like the Kool-Aid Man in an attempt to escape the burning.

    Senator Mazie Hirono made a loud hissing noise and growled at the cross. Her head began to turn around and around like a demonic owl. Then, she vomited pea soup.

    https://babylonbee.com/news/democrats-hiss-in-terror-as-acb-pulls-out-crucifix/?utm_content=buffer82939&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

  8. Shouldn’t even honor it with a comment Schumer is trying to buy previous to the fact of trial opinion which is in and of it’self, like any regressive a criminal act.

  9. Scum-mer will try anything to get a deal his way and then stab you in the back anyway. He used to be religious now he can’t qualify as secuar just as a Son of Putin.

  10. Judge Sullivan’s bizarre handling of the Flynn case shows why judicial appointments are so important. Judges have rushed into the political arena and joined the fray.

    The only thing about Barrett I care about is which side she is on, democracy and law or arbitrary rule from the bench.

    Professor Turley is concerned that political scheming on both sides will damage the judiciary. Too late. The judiciary has already destroyed itself and nothing makes that so clear as the maneuvers of Sullivan and the Court of Appeals that tolerates and encourages his totalitarian show trial. American courts appear to be trying to adopt the procedures of Judge Freisler and Judge Jeffreys. The Democrats in particular seem to be urging these corrupt changes into being.

    CTHD– I told you it looked as if Sullivan was trying to drag the carcass of this case across the election finish line. We will see.

  11. Do Democrats argue that timely ACB confirmation would stack the court with three “Trump justices” vs two “Obama+Biden justices” in a contested election case? If so, is it not more consistent with the conflict of interest principle to argue for the recusal of ACB, Kavanaugh, Gorsuch, Kagan and Sotomayor? Of course, this would leave a bench of four men and no women. Biden says a black woman is long overdue on the bench, but this seems to accuse Obama of a glaring 8th-year oversight. Nor do we know what McConnell would have done if Obama had nominated a black woman instead of Garland. Either way, it certainly seems that Democrats, in targeting ACB for recusal, are revealing an implicit sexism. Why not ask Gorsuch and Kavanaugh, or Kavanaugh alone, to recuse himself? Why target ACB, who would then be the only conservative woman on the bench?

    Countering the conflict of interest allegation, which is so enormously intersectional it boggles calculation, why should even a partisan Senate majority not uphold a reasonable, good-faith confidence in the independence, integrity and qualification of Senate SCOTUS appointments? Why should it not welcome an opportunity to make the bench less patriarchal on the eve of this election? I agree with Turley: “The assumption of such blind bias says more about those demanding a baseless recusal than it does Judge Barrett.”

    1. These hearings are rushed, not “timely.” They’re so rushed that Barrett omitted multiple items on her Senate questionnaire, including several related to her views on Roe.

      No one is suggesting that Justices already on the court recuse. You call the Justices appointed by Obama “Obama-Biden” Justices. But Biden didn’t nominate them.

      If she’s confirmed, Barrett should recuse because Trump explicitly said that he wants a 9th Justice on the court to rule on election cases.

      He said: “I’m counting on them [a 9-Justice SCOTUS] to look at the ballots definitely.”
      “I think this [election] will end up in the Supreme Court. And I think it’s very important we have nine justices. … I think this — this scam that the Democrats are pulling — it’s a scam, the scam will be before the United States Supreme Court. … just in case it would be more political than it should be, I think it’s very important to have a ninth judge.”
      He wants Barrett confirmed because he expects her to rule in his favor. She should certainly be asked during the hearings what, if anything, Trump said to her or asked her about this election or about election-related cases.

      There’s already a 5-3 conservative majority. We do not need to rush confirmation of a 9th Justice. The Senate should be focused on the COVID relief bill they’ve been stalling on, not this.

      As for “Nor do we know what McConnell would have done if Obama had nominated a black woman instead of Garland,” that’s just nonsense. Of course we know. Before Obama nominated anyone, McConnell announced that he would not allow the Senate to vote. His statement wasn’t linked to Garland. McConnell wasn’t going to allow a vote on any Obama nominee.

      “Why not ask Gorsuch and Kavanaugh, or Kavanaugh alone, to recuse himself?”

      Because Trump didn’t link any of their nominations to election rulings, and they were confirmed long before now, not specifically to rule on what Trump expects will be an election case.

      “why should even a partisan Senate majority not uphold a reasonable, good-faith confidence in the independence, integrity and qualification of Senate SCOTUS appointments?”

      McConnell didn’t do that when Garland was nominated. Surely you don’t have double standards, right?

      1. +1

        Turley getting good at jumping through the hoops and maybe there will be a fish – I mean an appointment if Trump gets to a 2nd term.. He’s burned any other available bridges except guest seats on Fox.

          1. Turkey used a direct comparison To serial murdererJohn Wayne Gacy relative to Democrats highlighting citizens whose health and lives are on the line if the ACA is overturned which ACB has written she will do if confirmed. SHAME ON TURLEY FOR HIS PHONEY BOTHSIDERISM!

      2. You haven’t rebutted the implicit sexism in the Democratic Party’s position on ACB recusal. Nor have you rebutted Biden’s implicit suggestion that Obama’s Garland nomination was sexist and racist in historical context. If Obama had nominated Ketanji Brown Jackson instead of Garland, McConnell might have folded. We don’t know. Just like we don’t know if Senator Sanders would have won in 2016 if Obama had backed him instead of Hillary, or if Hillary would have won if Obama had nominated KBJ (because Senate failure to confirm KBJ, accepting your presumption, would have made the Democratic Party’s case against the GOP patriarchy that much stronger). I am not sure I am expressing a double standard here, but it does seem like you are avoiding the point of my comment.

        1. Jonathan:

          You haven’t made a case for implicit sexism. If Trump had nominated a man, Democrats would object to having hearings for him right now too.

          “Nor have you rebutted Biden’s implicit suggestion that Obama’s Garland nomination was sexist and racist in historical context”

          I don’t have to rebut it, as Biden didn’t say or suggest that. Just because you call something “implicit” does not make it an accurate characterization.

          “If Obama had nominated Ketanji Brown Jackson instead of Garland, McConnell might have folded. We don’t know.”

          We know that the very same day Scalia died, McConnell said “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” There’s no reason to think McConnell would have responded any differently with Judge Brown Jackson, especially when Garland is more moderate.

          As for double standards, what is your criticism of McConnell’s decision not to allow hearings on Garland?

          1. “You haven’t made a case for implicit sexism.” This is plainly false. I’ve made a case for implicit, historically contextual sexism (patriarchy) on both the Democratic and GOP sides of the aisle with respect to SCOTUS nominations and confirmations.

            “If Trump had nominated a man, Democrats would object to having hearings for him right now too.” This is plainly a dodge. If Trump had nominated a man to replace RBG, it would have been a sexist nomination, as his nominations of both Gorsuch and Kavanaugh were sexist, in historical context. But that is obviously not the point of my comment thread. There is no reason for Minority Leader Schumer to focus his demand for recusal on ACB instead of Kavanaugh and/or one of the other male conservatives on the Court except implicit sexism.

            “Just because you call something ‘implicit’ does not make it an accurate characterization.” Nor does it mean I am wrong. The evidence matters. Your position is that Biden did not and does not believe the nomination KBJ – of a qualified black woman – was the less racist and less sexist choice for Obama in 2016. But Biden is on the record saying the nomination of a black woman to SCOTUS “is long overdue.” You are of course free to argue for a different interpretation of Biden’s comment, and perhaps to convince me that your interpretation is the better one, but are you as free to deny that my interpretation is both grounded in fact and plausible?

            “There’s no reason to think McConnell would have responded any differently with Judge Brown Jackson, especially when Garland is more moderate.” You mean that charges of racism and sexism would have counted less with McConnell and the rest of the Senate GOP than a rejection of Garland’s apparent “moderation”? I am not so sure. I don’t know what McConnell would have done with a KBJ nomination as the weeks ticked by. Perhaps you are right, but perhaps I am right that his refusal to confirm her, had he held out, would have given Hillary the winning 2016 edge.

            1. Jonathan:

              Your initial claims were “it certainly seems that Democrats, in targeting ACB for recusal, are revealing an implicit sexism” and “the implicit sexism in the Democratic Party’s position on ACB recusal.” You now say “I’ve made a case for implicit, historically contextual sexism (patriarchy) on both the Democratic and GOP sides of the aisle with respect to SCOTUS nominations and confirmations,” which (a) is not about recusal and (b) bizarrely suggests that that’s implicit sexism rather than explicit sexism in the history of who has been nominated.

              “This is plainly a dodge.”

              No, it isn’t. Democrats were clearly calling for hearings to be postponed before Barrett was nominated. It’s not about her. Just like McConnell’s response to Scalia’s seat was not about Garland, who hadn’t been nominated when McConnell responded.

              Your claim that “There is no reason for Minority Leader Schumer to focus his demand for recusal on ACB instead of Kavanaugh and/or one of the other male conservatives on the Court except implicit sexism” is nonsense. I already quoted Trump’s comments about his reasons for wanting a quick confirmation and pointed out that that wasn’t the case for any Justice now on the court. You’ve been silent about Trump’s statements.

              “Your position is that Biden did not and does not believe the nomination KBJ – of a qualified black woman – was the less racist and less sexist choice for Obama in 2016. ”

              No. That’s not my position, and I’ll thank you to not put words in my mouth. My position is that your claim — “Biden’s implicit suggestion that Obama’s Garland nomination was sexist and racist in historical context” — is not justified, as Biden didn’t say that, and he hasn’t implied it. Might Biden think it? Sure. Or he might not. But unless he says so, or say something that clearly implies it, then we don’t know.

              Frankly, I find it ironic that you insist “We don’t know” how McConnell would have responded if KBJ had been nominated, despite McConnell’s explicit statement preceding — and therefor applying to — any nomination, but you also insist we *do* know “Biden’s implicit suggestion that Obama’s Garland nomination was sexist and racist in historical context” when Biden has never said that about Garland’s nomination and when you’ve presented no argument based on what Biden actually *has* said. Go ahead: quote Biden’s own words that you believe imply Garland was a racist and sexist nomination.

              “Biden is on the record saying the nomination of a black woman to SCOTUS “is long overdue.”

              And ___? Take the next step and argue why you believe that implies that Garland, nominated in a specific context — an election year to fill Scalia’s seat — was therefore a sexist and racist nomination. Make sure that you address all of the relevant considerations at the time (e.g., Garland’s judicial philosophy) relative to other possible choices, not just his race and sex.

              “perhaps I am right that his refusal to confirm [KBJ], had he held out, would have given Hillary the winning 2016 edge.”

              That’s possible, but that’s also a different question than whether he would therefore have changed his mind on having hearings. McConnell refused to have hearings on a number of nominees of color and/or women for lower court vacancies.

              1. “Democrats were clearly calling for hearings to be postponed before Barrett was nominated. It’s not about her. Just like McConnell’s response to Scalia’s seat was not about Garland, who hadn’t been nominated when McConnell responded.”

                I think you are confusing the Senate’s pre-nomination posturing with its post-nomination checkmating. “Check” is not “checkmate.” If Obama had nominated KBJ, McConnell’s rejection would have been about her, specifically, not about Garland, specifically, with real consequences on both sides of the aisle. Now if Trump had nominated KBJ instead of ACB, should we believe Senate Democrats would not hasten to confirm her? Democratic pre-nomination posturing aside, this is very much about ACB, specifically, and about the balance of women on the bench, in general and historical context.

                Isn’t it interesting that Biden is not vowing to nominate Garland? Whereas if Obama had nominated KBJ, and McConnell had refused to vote on her confirmation, presumably Biden would vow to nominate her again?

                Dodge, yes. I still don’t think you’ve addressed Senator Schumer’s or President Obama’s implicit sexism. But I agree I should not have overstated your opinion of Biden’s comment. Thanks for taking time to clarify your position.

                1. I don’t find it interesting that Biden is not vowing to nominate Garland. If Biden wins, he will not be in the position that Obama was in in 2016, where he’d be nominating a replacement for Scalia in an election year.

                  I don’t have to “address[] Senator Schumer’s or President Obama’s implicit sexism,” as you haven’t made a good case for them. Go ahead: make an actual argument that it was sexist for Obama to nominate Garland after having Kagan and Sotomayor confirmed. Make an actual argument that Schumer’s response is sexist. To the extent that Schumer is arguing against ACB rather than a general Republican nominee, he’s making it about her specific statements re: things like Roe and the ACA, not about her sex. Schumer would like the seat to remain open and Biden to be elected, where the seat would presumably be filled by another woman: how is that sexist?

                  Your hypothetical re: Trump nominating KBJ would require that we ignore everything we know about Trump: he is entirely transactional. He would not nominate KBJ because it does not benefit him personally to do so. If he’d done that, McConnell would be arguing that he’s gone off the deep end and the 25th Amendment should be invoked.

                  I’m not on Turley’s side (you’re new here and haven’t seen my regular comments about weaknesses in his columns). I’m on my own side against what I think is are unwarranted assumptions on your end.

                  Re: “I believe that such a quid pro quo, to the extent it exists in this case, can only be said to apply to all of Trump’s SCOTUS appointments,” why? Trump’s comments were about this vacancy, not about previous vacancies.

                  Re: “if a recusal is negotiated, Senator Schumer has more on balance to gain from a Justice Kavanaugh’s than a Justice Barrett’s,” why? What argument could Schumer possibly present that Barrett should be confirmed and rule but Kavanaugh shouldn’t?

                  I agree that “Now is not the time to be silencing women judges’ voices, all else equal,” but all else *isn’t* equal.

              2. “Make sure that you address all of the relevant considerations at the time (e.g., Garland’s judicial philosophy) relative to other possible choices, not just his race and sex.”

                I believe we are arguing on the opposite sides of a sexual discrimination lawsuit. You are on Turley’s side.

                1. I couldn’t follow that discussion. Nothing is more ridiculous than arguing about sexism now in the context of lawyers. Women have been heavily in the profession for decades and I personally don’t worry about a lawyer being a woman or not. the higher you go the less it matters. Same thing race

                  And yet the ABA types have their “panties in a twist” over supposed racism and sexism in legal employment. Real life lawyers who are not in big firms currying favor with big money clients who want to project “equality” for various corporate reasons do not worry about another lawyer’s sex and race nor do we sit around counting heads like some kind of HR flunky.

                  And yet here we are in a society that is as “equal as ever” but it’s perpetually shoved down our throats.

                  In respect of this, I find Biden’s remark about who he would nominate, very annoying and stupid.

                  I tell you this, Amy Coney Barrett did not get where she is now because she is some woman riding the quotas to success. She is a very smart hardworking lawyer, that’s how she rose. Im sure she has her sponsors but I doubt they earmarked her because she was a women. Maybe so, perhaps, but I wouldn’t hold it against her.

                  1. Kurtz, we aren’t discussing women lawyers, but women judges/Justices. Women continue to be underrepresented in the judiciary (~30% of state judges and ~33% of federal judges, if the data I just looked at are correct, and only 4 total of all SCOTUS Justices ever, and currently 25% of the court). I agree that Barrett she seems to be a smart hardworking lawyer, but I also expect that Trump wanted to nominate a woman this time. I don’t hold it against her. There are multiple smart conservative judges, and she’s one of them.

                    1. it’s impressive that it is already up to a third of federal judges considering that they have lifetime appointments

                      of course when they go on senior judge status they lighten their load and they can hire new ones as magistrates and bump them up quickly

                      https://en.wikipedia.org/wiki/United_States_magistrate_judge

                      I went to law school what seems like a long time ago and nearly 2/3 of my class were women,. I have worked with women lawyers, i have fought them, i have hired them.
                      i have women lawyers in my extended family. I work with women lawyers a lot. And I openly consider myself “patriarchal” and grin at the epithet “sexist” but there is zero doubt in my mind that women make as good as lawyers as men in general

                      in certain areas they may have a cognitive advantage, if the work includes attention to fine detail. there is some scientific evidence that the female brain is more attentive to details. overall, in my opinion, in the long run, sex does not matter, experience is the biggest factor for quality in a lawyer

                      https://www.abc.net.au/science/articles/2009/07/31/2641922.htm

                      i am old but really not old enough to know what it was like before women where a fixture in law. you have to go back to lawyers practicing in the 1970s for that I think. the 80s is where the numbers really shot up, according to what i have heard

                      one effect that is not well understood from this: employers really liked the development because it vastly increased the labor supply
                      higher supply, lower labor costs per unit of production, in general. this is how capitalism drives “equality” on the demand side

                  2. “Real life lawyers…do not worry about another lawyer’s sex and race nor do we sit around counting heads like some kind of HR flunky.”

                    I don’t suppose by “HR” you mean Human Rights?!

                    There is a clause for the equality of women and men in the preamble to the UN Charter. Does it matter? In 2016, the United Nations Security Council had three equally qualified women before it to appoint as the next UN Secretary-General, but the Permanent Five Members of the Council (including the US) backed yet another man instead. That makes nine men in a row since 1945 despite equally qualified women candidates and a clear commitment to gender equality in the UN Charter and in the 2030 Sustainable Development Agenda. That kind of track record is not a level playing field, it is blatant sexual discrimination.

                    “I tell you this, Amy Coney Barrett did not get where she is now because she is some woman riding the quotas to success. She is a very smart hardworking lawyer, that’s how she rose.”

                    Is that alone how Sandra Day O’Connor rose, too? The first woman in nearly two hundred years of US history with sufficient smarts and industry to make the cut? Not the first US President, and a confirming Senate, to break with a sexist precedent?

                    Perhaps we will hear Judge Barrett address the complexities of intersectional judicial affirmative action this week. I think we are long overdue for a majority of women justices on the Supreme Court, if not a full female bench. But how to get there? Legislation, litigation or neither?

                    (Sidebar for Mr. Turley: President Reagan vowed to nominate the first woman to SCOTUS during his 1980 Presidential Campaign. Does that mean her appointment was unconstitutional?)

                    https://www.reaganlibrary.gov/archives/speech/remarks-announcing-intention-nominate-sandra-day-oconnor-be-associate-justice

                    1. Sandra Day O Connor was a good lawyer and justice too. I don’t get your point. You must be an academic because lawyers get to the point.

                      I have learned to respect women in law by their overall competence as lawyers. It was never due to any sort of whining or feminist claptrap.

                      “I don’t suppose by “HR” you mean Human Rights?!”

                      No, I mean human resources. they are the bean counting apparatchiks of employment.

                      “There is a clause for the equality of women and men in the preamble to the UN Charter. Does it matter?”
                      not to me it doesn’t. I don’t like the blue helmet crowd

                      Mr Maxson, i warn you, I am a real knuckle dragging meat eater. If you were looking for a sexist I would be tempted to raise my hand. If you’re going to be posting here, get used to some vigorous back and forth exchanges.

                      PS as for the “2030 Sustainability Agenda,” I read that once and it seemed pretty sinister. Are you one of those guys who wants to reduce world population by half in a decade’s time, just to get to a “carbon neutral steady state of emissions?” Good luck with that. Maybe COVID 20 will do the trick when it “emerges from nature” when the current trial run is over?

                    2. Mr. Kurtz:

                      “Mr. Maxson, I warn you, I am a real knuckle dragging meat eater. If you were looking for a sexist I would be tempted to raise my hand. If you’re going to be posting here, get used to some vigorous back and forth exchanges.”

                      In other words, you got my point, and this is your idea of a vigorous response.

                      “No, I mean human resources.”

                      Really? Not human rights? I am so surprised!

                      “Are you one of those guys who wants to reduce world population by half in a decade’s time, just to get to a ‘carbon neutral steady state of emissions?’ Good luck with that.”

                      You already know how I will answer? Wow! Meat eating caveman with super powers?

                      Halve the global population of cows in a decade’s time, make it a methane/ecological footprint emergency, and drop the “carbon neutral steady state of emissions” goal.

                      “Maybe COVID 20 will do the trick when it ’emerges from nature’ when the current trial run is over?”

                      So you are a Covid-19 UN conspiracy theorist. And potentially a rather a sick one at that. Ah well. Sad. So sad.

                  3. Kurtz said: “I tell you this, Amy Coney Barrett did not get where she is now because she is some woman riding the quotas to success. She is a very smart hardworking lawyer, that’s how she rose”
                    ***
                    So she didn’t take the traditional route adopted by Kamala with Willie Brown?

                    1. ha ha Allan, Amy is a straight arrow

                      But I don’t think the problem with Kamala is her smarts either. Nor her lawyer acumen. I will grant she was a successful and competent lawyer. The problem with Kamala, is that she is fake, a phony, a mercenary, paid for by the California billionaires who advanced her the money for her unsuccessful primary contest, in which the average Democrat voter made it clear they did not like her. So good luck with that Democrats because with old Joe’s limited lease on life, she will probably succeed him in short order.

                      Maybe that’s why Nancy was busy on 25th amendment last week huh?

              3. Turley writes: “We do not know how Barrett would rule on any election challenge. There is no basis in her background as either an academic or a judge to assume that she would vote against any Democratic position or advance any “corrupt” purposes of the President. It is insulting to suggest that her nomination was made for that purpose. The assumption of such blind bias says more about those demanding a baseless recusal than it does Judge Barrett.”

                The strongest argument you have made in defense of Senator Schumer (against my implicit sexism allegation) is that President Trump has established the appearance of a contested election quid pro quo, and thereby a conflict of interest, uniquely with Judge Barrett. On this side of the argument, Turley is incorrect to shield Judge Barrett from rigorous questioning by Democratic Senators regarding the possible existence and extent of this quid pro quo on the grounds that it would be “insulting” for them to do so. They have an obligation, on the contrary, to press exactly this point in their questioning, and it will be an insult to their intelligence (and the national interest) if they don’t.

                My struggle with this argument is two-fold. First, I believe that such a quid pro quo, to the extent it exists in this case, can only be said to apply to all of Trump’s SCOTUS appointments, and then, however reluctantly we may feel about it, it must be extended to include Obama’s SCOTUS appointments as well. We can argue that Biden did not make the appointments, President Obama did, but this strikes me as unduly biased against Trump in favor of Biden.

                The second source of my struggle is that any conflict of interest, if one exists, should probably be assumed to apply even more to Trump’s two male appointments than to his single female appointment, despite the fact that her nomination is the most recent and still pending of the three. Why should we think Judge Barrett is not rather more privately predisposed against Trump than for him? All-in-all, if a recusal is negotiated, Senator Schumer has more on balance to gain from a Justice Kavanaugh’s than a Justice Barrett’s. Two Trump+Pence-nominated Justices, two Obama+Biden-nominated Justices. For more than two hundred years of US history, and two thousand years of western civilization, male judges have dominated the courts. Now is not the time to be silencing women judges’ voices, all else equal.

                Please do have the last word.

          2. Democrats would object regardless. Like the NYTimes… their opinion on ever issue changes whether they are the majority or the minority.

      3. I dont see the implicit sexism then again I almost never understand the contrived notions of sexism we hear on a regular basis. I ignore

        As for recusal, Turley’s point is there is no need for her to pledge to do anything different than they usually do. There is no basis for recusal and so she need not pledge it. simple.

        1. I believe ACB’s pre-election confirmation would be timely, and I agree with Turley’s conclusion on recusal in this case. With respect to implicit sexism, i.e., gender discrimination, I appear to be diametrically opposite Turley with respect to the conclusion he draws here: “George Washington University law professor Jonathan Turley wrote Tuesday that Democratic presidential frontrunner Joe Biden’s pledge to nominate a black woman to the U.S. Supreme Court over the weekend amounted to unconstitutional race and gender discrimination.” https://lawandcrime.com/2020-election/jonathan-turley-bidens-pledge-to-appoint-a-black-woman-to-the-supreme-court-is-unconstitutional-discrimination/

          1. JM:
            “I appear to be diametrically opposite Turley with respect to the conclusion he draws here: “George Washington University law professor Jonathan Turley wrote Tuesday that Democratic presidential frontrunner Joe Biden’s pledge to nominate a black woman to the U.S. Supreme Court over the weekend amounted to unconstitutional race and gender discrimination.”
            ***********************
            That needs some ‘splaining Ricky ’cause it is precisely invidious discrimination based on the immutable characteristics of race and gender, i.e., white males need not apply. And no sane person can take that position save a SCOTUS hellbent to social engineer and the sanity of that is debatable in view of manifest human nature.

              1. JM:
                “what is your take on Reagan’s 1980 campaign vow to nominate the first woman to SCOTUS?”
                *************************
                Same thing, it was pure demagoguery. Anytime you predetermine who is the best candidate for any job, you’ve engaged in a logical fallacy, demeaned the nominee and probably insured the rise of the mediocre. The sad fact is that this has happened several times and because of that the women justices we’ve seen haven’t been all that distinguished. RBG was a better lawyer than justice rarely building consensus on the bench; SDO was a swinging door lurching from conservative to more moderate depending on the issue but rarely convincing her colleagues to go along with her view, She led the league in writing separate dissents and concurrences. Sotomayor seems to have a candlepower problem and is unlikely to surprise us given the Courts move to the right. Kagan seems decidedly ideological and might be the Einstein of the law, but who’s to know given her dearth of writing and leading the court in sphinxlike silence. Maybe she’s too busy making public appearances?

                So all this commitment to gender diversity hasn’t brought us the legal titanettes we were promised.

                1. Mespo727272:

                  “Pure demagoguery”? Wow. Not even a grain of credit for the sincere good intention to correct a long-standing pattern or practice of sex discrimination!

                  Surely your characterization of President Reagan’s campaign promise is demeaning to SDO and to all women subsequently nominated to serve on SCOTUS, including Amy Coney Barrett!

                  Surely Reagan’s follow-through was not unconstitutional demagoguery, in Mr. Turley’s view!

                  I am not even remotely close to considering myself a SCOTUS scholar, but your review of the four women justices we have been blessed with thus far is more depressingly sexist than refreshingly candid. Four women of 114 justices, all since 1981, never more than three at one time, never a majority, never a full court. That is “all this commitment to gender diversity”? With respect to SDO’s record, to take a single example, what I have seen of her writing for the (male) majority in Grutter v. Bollinger seems courageous and inspired. I support litigation of the 19th Amendment, another Judiciary Act and/or a Constitutional Amendment to correct the historical gender imbalance of SCOTUS and the federal courts.

                  1. JM::
                    Like you said, you’re not a SCOTUS scholar nor much of a critical thinker. To assume the presence of a vagina confers legal acumen simply means you’re biased in favor of some leftist dream of the “underrepresented” (whatever that means) being more competent because of their supposed inferior status. The simple fact is the criticisms I’ve made are well-subscribed and only ignored by those willing to overlook mediocrity in favor of their own political agenda. I’d love a compelling female justice, but there hasn’t been one and that’s likely why you haven’t uttered a syllable against my position, You just resort to the mass man ad hominem attack (sexist? Where are my pearls to clutch) and refuse to support your inane comment that reserving a spot for black female justice isn’t blatant, illegal discrimination. And worse yet, a crime against meritocracy.

  12. And while you all are pointlessly mired in party-based political games, the ominous and unaccountable to FOIA requests Operation Warp Speed proceeds on in the background, which will affect you all in the U.S., regardless of who wins the election (Biden has come out in favor of it, and Trump is promoting it to his normally suspicious-of-govt-activity demographic). Look up the excellent research by Whitney Webb and be vigilant.

  13. Barrett is political and a hypocrite:

    “Ms Barrett suggested in the interview with CBS News that she was against the idea of Mr Obama selecting Mr Garland, often considered an apolitical nominee and centrist judge, because he was not a conservative like justice Scalia.

    “We’re talking about justice Scalia, the staunchest conservative on the court”, Ms Barrett said in the interview, a clip of which went viral this week after it was reported that she was a top choice to the nation’s highest court.

    “We’re talking about him being replaced by someone who could dramatically flip the balance of power on the court,” she continued. “It’s not a lateral move.”…”

  14. After 4 years of seeing how the Democrats maneuver you can just about figure out what they’re up to. They either telegraph their next move or project what they’ve already done on to their enemies.

    This Presidential election Will be stolen from President Trump by use of the mail in ballots.

      1. No it’s not ok. Absentee ballots are fine if you’re in the service, out the country or incapacitated. There’s no reason people can’t leave their home to present proof of who they are and vote. That goes for Democrats, Republicans and Independents.

      2. He uses a solicited abstentee ballot.

        That is profoundly different than shotgunning ballots by the millions in the mail to people who haven’s asked for them, the Democrats’ current scheme.

        1. Kurtz, you must be thinking about that notorious Democrat-dominated state know as Utah.

          They’ve been using vote by mail for years.
          “If you are an active registered voter, then yes, you will automatically receive a ballot in the mail.”

          Why haven’t you been lambasting them for years?

          1. I don’t have any criticism for the states that have been doing it a long time. That’s up to them. I do have a problem with a last minute push to implement it in places as a novel stunt to try and obscure the election night outcome.

            If states want to add vote by mail, the state legislatures should do it with deliberate changes in law done well in advance. Ok!

            But not sporadic local initiatives here and there of dubious authority under guise of “covid” concenrs. COVID has become the excuse for everything now, it’s pathetic.

          2. and I might add, that i have been explaining for years, how voter fraud happened extensively in the 1960s and 70s in Chicago, and the means were harvested absentee ballots. This is history. This went away to a degree in Chicago I believe, because the RICO prosecutions of the Chicago Outfit (cosa nostra) fractured and decimated organized crime in the city which was the “fixer” that the local Democrat party used to get er done

            See, Pat Marcy

            You can follow the sources I used to explain that at the wiki link for his name. Operation GAMBAT https://en.wikipedia.org/wiki/Pat_Marcy

            “Background
            Marcy was born in Chicago, Illinois on September 6, 1913 to an Italian American family. His name was originally Pasqualino Marciano until he formally changed it. He and Tony Accardo both worked for Al Capone. Marciano was a gunman for the original Capone gang. He became the head of the first ward which controlled everything from the governor on down.

            The First Ward
            Marcy ran Chicago’s old 1st Ward which encompassed Chicago’s Downtown. Alderman Fred Roti and Democratic Committeeman John D’Arco, Sr., both of whom also had close ties to the Chicago Outfit, took their direct orders from Marcy. Marcy regularly met with the mob’s main enforcers at Counselor’s Row restaurant, across the street from Chicago City Hall.[1]

            The FBI
            Beginning in the 1950s, the Federal Bureau of Investigation tried for over three decades to bring down Marcy and his associates. According to former FBI agent William F. Roemer, Jr., their tactics included illegally bugging the First Ward’s Headquarters at 100 North LaSalle Street in 1962. Although the bug, dubbed “Shade,” revealed a great deal about the activities of the First Ward’s political machine, nothing could be used in court.

            The sting
            Finally, in the mid 1980s, criminal defense attorney and longtime First Ward associate Robert Cooley secretly approached Federal prosecutors. He declared, “I want to help you destroy the First Ward. I want to help you destroy Pat Marcy.” Cooley proceeded to wear a wire while meeting with Marcy and several other First Ward members, including D’Arco and Roti, implicating them in numerous acts of corruption, including fixing trials on the Outfit’s behalf. According to Cooley, Marcy had influence in Cook County politics, job appointments in law enforcement, and court decisions.[1]

            During the same period, Michael Corbitt, the imprisoned former police chief of Willow Springs, Illinois, began cooperating with federal prosecutors. According to Corbitt, Marcy was so trusted by the Outfit that the money skimmed from casinos in Central America and Las Vegas was delivered directly to him.

            Imprisonment and death
            As a result of these investigations, Marcy was indicted (91 CR 1045) with one count of conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO), six counts of bribery, and six counts of extortion. Marcy died during the trial, in March 1993.”

    1. VV dont be so sure. A big turnout from Republicans can carry the day

      Stay busy rounding up the troops! On election day we march

  15. Given the bad faith exhibited by Republicans in their obvious hypocrisy in this proceeding with this nomination, I hope the Democrats will pack the Court (if feasible) in order to give Republicans their just desserts…

          1. As a simple example, Democrats didn’t make blanket refusals to return judicial blue slips for judges nominated by Republican presidents, which is what Cruz and Cornyn did with Obama nominees to fill judicial vacancies in Texas for the entirety Obama’s presidency. The Democrats didn’t get rid of the blue slip process in response, whereas McConnell and Grassley did do away with blue slips in 2018, to push through even more Trump-nominated jugdges.

            The judges who just stayed the TX ballot dropbox decision:
            * Don Willett — appointed by Trump in 2017 to a vacancy created in 2012
            * James Ho — appointed by Trump in 2017 to a vacancy created in 2013
            * Kyle Duncan — appointed by Trump in 2017 to a vacancy created on New Year’s Eve 2016

            Those first 2 were only vacant because Cruz and Cornyn refused to allow any nominees for TX vacancies to get hearings.

            That’s just 1 example of how Republicans differ from Democrats. A centerpiece of McConnell’s court efforts was to prevent a slew of vacancies from being filled by Obama.

            1. CTHD– “A centerpiece of McConnell’s court efforts was to prevent a slew of vacancies from being filled by Obama”

              ***
              If true, thank God for Mitch!.

                1. Yes Kurtz, hope that you and the other citizens who are out of touch with what most American voters favor can maintain power through the courts, the EC, and gerrymandering.

                  1. I am not in power anywhere outside my own humble circumstances. I am merely a voter

                    The party which wins via the Electoral college, does so legitimately and there is nothing sinister about this cherished American political institution. It is merely the law.

                    Courts and gerrymander, are likewise legitimate and legal means of gaining and exercising political authority. We can expect the Democratic party will use them to the fullest extent possible, in turn, as they often have.

                    Now, these means are legit. What is not legit, is having the Democratic megadonors fund outfits which will give us 4 months of rioting, as George Soros has done with BLM

                    His BLM donations were more so in the past, and current support and income he gives them through his constellation of the numerous “Open Society” groups

                    But here are his contributions of record in2020. Less than Tom Steyer it seems, but, quite impressive considering this fellow had already given billions of dollars away in previous years already

                    https://www.opensecrets.org/outsidespending/donor_detail.php?cycle=2020&id=U0000000364&type=I&super=N&name=Soros%2C+George

                    The riot organizing has been racketeering, specifically a protection racket, and voter intimidation.
                    \Soros, as a kingpin of political violence afoot in America, is nothing more than an organized crime figure of global reach.

                    1. If Kurtz actually GAF about political spending in the US he;d support Democrats who have favored ever stricter laws on it and have pledged to appoint justices who woulod overturn Citizens United.

                      He doesn’t really GAF about political spending unless it’s not for his team. The NYTs has an excellent article about Trump’s use of his properties to leverage dollars for influence.

                      “A New York Times analysis of tax records showed that more than 200 companies, special-interest groups and foreign governments have funneled millions of dollars to President Trump’s properties while reaping benefits from the president and his administration. …”

                      https://thehill.com/homenews/administration/520549-tax-records-show-200-companies-groups-and-foreign-governments

                    2. I do care but the problem is very deep. Citizens United is squarely within the First Amendment. You can’t just over rule it because political donations are very much acts of free speech. But billionaire’s donations are very much a problem for our democracy. and corporate contributions too.

                      I consider the First Amendment flawed in this and some other material respects. I would seriously consider revamping and amending the First Amendment itself.

                      Personally, I think it should be wholly obvious to Republicans that global corporations and oligarchs strongly hate them and our constitutional order. And they have become very good at exploiting the wide avenues of mischief that the First Amendment has opened for them. If you repealed the First Amendment tomorrow, and cleared the way to eliminate billionaire and global corporate manipulation of our political system, Red States would be very much advantaged.

                      I tell you what. If all this leads to a fragmentation of the United States, and that is very possible, though unlikely; but if it does, the Red State fragments will not have the same “First Amendment” body of law as what we have now., That much I can predict with total certainty. And billionaire and corporate corrupt money will be very strongly circumscribed. But that’s a big IF.

                      But see, we’re gaming that out. yes, if the USSR could collapse in a fortnight, then so can the USA. Wise minds will contemplate the possibilities. As they ever have.

    1. haha you say “Given the bad faith exhibited by Republicans in their obvious hypocrisy in this proceeding with this nomination…”

      You call it ‘bad faith’ but what it is that Mitch McConnell is actually doing is playing the game the way the Dems play the game: Ruthlessly. And now we watch as they lose their dam minds over and over. There is NO question if given the same opportunity to ram through a pick of their own, the Dems would do the very same thing as we see Repubs doing today. And they would do it without hesitation.

    2. Silverman, if they do pack them then I hope the day comes when Republicans can pack them with their own. Turnabout will be fair play. You might one day rue your shortsightedness.

  16. Turley claims: “There is no basis in her background as either an academic or a judge to assume that she would vote against any Democratic position or advance any “corrupt” purposes of the President. It is insulting to suggest that her nomination was made for that purpose.” Oh please! You really expect people to believe that the Republicans don’t have a very good idea how she will rule generally if not exactly? It’s humiliating and disgraceful to accept the nomination from a president who is a four-flusher, serial liar and chiseler. That you don’t recognize that fact says a lot about you.

    1. Turley has proved beyond a shadow of doubt that he is now a hack and shill for Trump and Barr. Turley’s disinformation is on purpose and deliberate.

      1. You people who come daily to Turley’s website to insult, criticize, and attempt to intimidate him, on behalf of the failed Democratic party leadership, only prove the point about how abusive, intolerant, and awful that leadership and its sycophants have become.

      2. “Turley has proved beyond a shadow of doubt that he is now a hack and shill for Trump and Barr.”

        Uh, no honey, he hasn’t. That’s just your misinformed, disinformed opinion.

    2. Silverman says this:

      “It’s humiliating and disgraceful to accept the nomination from a president who is a four-flusher, serial liar and chiseler. ”

      silverman would perhaps accept many things from those who offered enough silver for it. we get it nobody on the Republican side is offering much for Jeff’s services, so he’s disappointed

  17. And, of course, she will not make any such pledge. Having a full Court is one of the major reasons, if not the #1 reason, for confirming her before the election. Nobody takes such a demand from the Marxist Left seriously.

    1. The Republicans wouldn’t confirm her before Election Day if they didn’t think they’d benefit from it.

      1. So what? You would have everyone feel guilty for exercising constitutional rights and duties, just because you think YOU wont benefit, is what we can infer from your point.

      2. That is what Democrats and Republicans do in the Senate, the House, governorships, etc. They act and vote in such a way as to promote their party’s policies.

        Republicans are not elected to benefit the Democrat Party.

        1. Karen, do you think it’s impossible for politicians to work in a more bipartisan manner for the good of the country rather than the good of their party?

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