Below is my column in USA Today on the troubling course taken by Democratic members in the confirmation hearing of Judge Amy Coney Barrett. As I have stated, there are a host of legitimate questions to be raised over Judge Barrett’s view of the law. Indeed, I praised the exchanges between Sen. Dick Durbin (D., IL.) and Judge Barrett as the substantive highlight of the hearing. Unfortunately, those were the exceptions. Instead, the thrust of the entire hearing was that Barrett was unqualified due to her expected vote in the upcoming case on the Affordable Care Act (ACA). Various senators directly stated that they would vote against Barrett to protect the ACA. That is what is so unnerving about the Barrett confirmation hearing.
Here is the column:
The confirmation hearing of Judge Amy Coney Barrett could easily have been mistaken for the sentencing hearing for John Wayne Gacy. Surrounding Barrett were huge pictures of sick individuals. One would think that Barrett was being confronted with the faces of her victims. In reality, the pictures perfectly captured a far more important message. Senators had finally broken free from any pretense of principle in reviewing the qualifications of a nominee. Indeed, many are about to create a new rule, the Barrett Rule, allowing conditional confirmation voting. The pictures were meant to pressure Barrett to either satisfy senators that she would vote against an Affordable Care Act challenge or they would vote against her confirmation.
There has long been a debate over the legitimate grounds for opposing a Supreme Court nominee. While senators can vote under the Constitution for good, bad or no reason at all, most have sought to justify their votes on some principled basis. For most of our history, senators followed the rule that disagreement with a nominee’s jurisprudential views was not a basis to vote against their confirmation. A president was viewed as constitutionally entitled to appoint jurists reflecting their own legal viewpoint and the primary basis for voting against a nominee was on the lack of qualifications or some disqualifying personal or professional controversy. It was a rule of senatorial deference that controlled the majority of nominations in our history.
Voting against nominees based on their expected votes
Members began to chafe at the limitations of this principle in the second half of the twentieth century. With abortion, desegregation and other hot button issues, confirmations became politics by another means. With every year, senators became more open about voting against nominees solely on the basis for their expected votes. This trend was accelerated in October 1987 in the confirmation hearing of Judge Robert Bork presided over by a senator from Delaware named Joe Biden. Bork was labeled “outside of the mainstream” of legal thought and rejected in a process that is now called “Borking.”
Democratic members have struggled with changing rationales for voting against Barrett, who has impeccable credentials as an accomplished academic and respected jurist. One such implausible claim was made the day before the hearing by Sen. Chris Coons (D., Del.) on Fox News Sunday. He claimed the nomination “constitutes court packing.” Both Biden and his running mate Sen. Kamala Harris (D., Cal.) have referred to nominating conservatives as court packing. Biden and others have refused to tell voters whether they will move to pack the Supreme Court if the Democrats retake both the Senate and the White House (a proposal once denounced by Ruth Bader Ginsburg herself). Instead of answering, Coons and others insist that Barrett’s nomination is court packing — a position that would allow them to vote against her without the need to consider her actual qualifications.
The portrayal of the Barrett nomination as court packing is facially absurd. Court packing is the expansion of the Court to create a dominant ideological majority. Referring to such a proposal by Franklin Delano Roosevelt, then Sen. Joe Biden once denounced it as “a bonehead idea . . . a terrible, terrible mistake” in seeking to add seats to the Court just to create a majority. Filling a vacancy on the Supreme Court is not court packing under any remotely plausible definition. Otherwise, anytime you disagree with the choices of a president, it would be court packing despite leaving the court the same size.
With little traction on the packing pitch, Senators were left with a rare moment of clarity. Indeed, Sen. Cory Booker (D., NJ) captured it best when, without waiting to hear from Barrett, Booker announced that he would vote against her. The reason was that she might vote against the ACA. The clear suggestion is that, after an election, the Democrats hoped to nominate someone who would clearly support the ACA. The issue was simply her expected vote on Nov. 10 in the case of California v. Texas.
Barrett and the ACA
We have now reached the Rubicon of confirmation politics. Thirty-three years after the Bork hearing, senators are now stripping away any pretense or nuance: they will oppose Barrett because of her expected votes on cases. In particular, Democrats have been arguing that they will vote against Barrett to prevent her from voting on a pending case, California v. Texas, dealing with the constitutionality of the ACA. Sen. Mazie K. Hirono (D., HI) announced recently that she would vote against Barrett because “she will vote to strike down the Affordable Care Act.”
In reality, the ACA case is unlikely to be struck down. The Court may uphold the lower court in declaring the individual mandate of the original ACA to be unconstitutional, but the real issue is whether that provision can be “severed” from the rest of the statute. Most legal experts believe that the Court has a clear majority favoring severance and preserving the rest of the act. The law was originally saved by Chief Justice John Roberts who felt that the individual mandate was constitutional. Congress later nullified the mandate.
The question before the Court is whether the rest of the act can be “severed” from the now defunct mandate — a question that cuts across the Court’s ideological divisions. Indeed, conservatives like Roberts and Brett Kavanaugh are expected to uphold the rest of the law. Thus, despite the pictures in the hearing, the picture for the ACA looks solid even with a Justice Barrett on the Court. Indeed, no one knows how Barrett would vote on the issue of severability.
The more important decision in the hearing is that some Senators are now invoking the right to vote against a nominee on the basis of her expected vote on this pending case. It will be a uniquely ironic moment since it was Ginsburg who refused to answer questions on pending or expected cases as improper and unethical inquiries by the Senate. It became known as the “Ginsburg Rule.” We may now have the Barrett Rule where a nomination can be rejected without such assurances.
The Barrett Rule would allow not only for the packing of a Court but the packing of the Court with guaranteed ideological drones. It is court packing without any pretense. Like our current politics, it would finally strip away any nuance or nicety. The court, like Congress, would become subject to raw and brutal politics at its very worst.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley
Democrats are trying to have it two ways. One, if Barrett is following the “Ginsburg rule,” she is disqualified because she is not being forthcoming, should be suspected of lying or avoidance, and doesn’t deserve to be on the court. If she does answer, then she may end up having to recuse herself from cases that one side or the other don’t want her to decide. It is an impossible standard because at some point we would reach a place where no one on the court would ever be able to rule on a case because during their hearings they expressed an opinion and now must recuse.
My biggest problem with all this is the idea that somehow Democrats found an invisible clause in the Constitution that says progressive legislation, if found unConstitutional, must be upheld, because the left feels it is still a good law, or was written with good intentions. If that is the case there is no reason to even have the Constitution and I doubt there is a majority in this country, at this time that want to toss the whole Constitution. Those people won’t be voting anyway because they are currently rioting, looting, and burning down buildings.
Big Tech is desperate to stomp on the Biden-Influence Peddling Scandal.
https://danaloesch.substack.com/p/twitter-locks-my-account-for-sharing
That only makes it more credible to me.
They wouldn’t be trying to suppress it if they were confident it wasn’t true and soon to be discredited.
It was discredited. Why aren’t you aware of that?
Anonymous, do you mean Biden didn’t calendar his criminal activities? What a fool.
No, Allan, I mean that lots of people, including Republicans and E.U. allies called for Shokin to be fired so the corrupt Ukrainian oligarchs could be investigated MORE AGGRESSIVELY. Biden WANTED Burisma investigated. The U.S. ambassador to Ukraine called out Mykola Zlochevsky, the oligarch who ran Burisma, by name as someone Shokin was letting off the hook. The executive director of Ukraine’s Anti-Corruption Action Center, Daria Kaleniuk said “Shokin was fired because he failed to do investigations of corruption and economic crimes of President Yanukovych and his close associates, including Zlochevsky.”
If you don’t know this, it’s because you don’t want to know it.
Anonymous, I know your stories but have known for a long time that story wasn’t true based on documents revealed. However, apparently your stories convinces those that are simple and lack common sense.
Right now we have real data that hasn’t been proven false and a candidate who hasn’t denied it. We have all sorts of evidence of its legitimacy including pictures and I understand a dirty video where one of the parties is easily recognizable. We are also learning a bit more about Hunter and some of his feelings and how they relate to his dealings with his father.
Have you found anything to disprove the legitimacy of the data? It certainly fits in nicely with the other pieces that should have been enough for the Obama Administration to do something about.
https://twitter.com/Acyn/status/1316801262277455872
Trump: “We sent in the US Marshals, took 15 minutes and it was over… They knew who he was, they didn’t want to arrest him and 15 minutes that ended”
Earlier, he described Reinoehl’s killing as “retribution” and said “I sent in the U.S. Marshals, they took care of business.”
He is saying he sent the US Marshals to carry out an extrajudicial killing.
New eyewitness accounts: Feds didn’t identify themselves before firing on Portland antifa shooting suspect
https://www.opb.org/article/2020/10/13/new-eyewitness-accounts-feds-didnt-identify-themselves-before-firing-on-portland-antifa-shooting-suspect/
You are expecting normal law abiding people to be upset about how Antifa is treated?!
Have you ever been inside of a building that’s been set on fire?
Go make a latte, cheesedick.
I expect normal law abiding people to be upset about the President sending US Marshals to carry out an extrajudicial killing instead of arresting him. I expect normal law abiding people to be concerned about the different treatment of Reinoehl versus Rittenhouse.
You’re a troll, not a normal person, so I don’t expect you to be concerned at all.
I expect normal law abiding people to be upset about the President sending US Marshals to carry out an extrajudicial killing instead of arresting him.
Assumes facts not in evidence. Unexpectedly1
Dumbass, Trump’s the one who said “I sent in the U.S. Marshals” and “they didn’t want to arrest him.”
They killed him. Eye witnesses say they didn’t announce themselves. He didn’t have a gun out, it was found in his pocket.
Not only an armed and dangerous murderer, but an ANTIFA member who is committed to an anarchist ideology of physically attacking and destroying the state and all its agents themselves .
That’s not just like being a terrorist, it is being a terrorist. Reinhole was totally committed to attacking not only his innocent victim, but the United States. Of which US Marshalls are the agents. When they came for this terrorist, they came carefully. He rolled the dice and crapped out.
LOL Weren’t you just wringing your hands yesterday over how awful it was that Obama blew up poor Anwar Al-Awlaki without a trial?
Eye witnesses say they didn’t announce themselves.
The witnesses to which you prefer to pay attention. I do hope you’re kept off juries.
If you have a report where a civilian eyewitness says they announced themselves, I’ll read it. What do have?
we have the choir of bishops that all those US Marshalls constitute. they’re the witnesses who count. good luck trying to overcome that evidence against the dead murderer
I was talking about non-LE eyewitnesses. People who don’t have a stake in it. The Marshals are not the only witnesses who count.
You mean memes peddled by NPR and pro-Publica, hardly reliable sources. Who are these witnesses? Where were they standing? What could they be expected to hear? Do they exist or did NPR make it up?
And NPR and pro-Publica do have a stake in this. The same stake you;’ve got.
Your response is classic ad hominem.
He did send in the US Marshalls but you are irrationally conflating that sentence with something else. Take a step back and pull out en tire quotes. None of them indicate he wanted anyone killed. That is not his style. Are you confusing Trump with Hillary? 🙂
I’m sure you’d say the same thing if Marshalls had killed Rittenhouse in a similar way.
Trump said “the U.S. Marshals killed him. And I will tell you something, that’s the way it has to be. There has to be retribution when you have crime like this.”
There isn’t supposed to be legal “retribution” in the US. There is supposed to be justice — a suspect arrested and tried before a jury of his peers.
You are conflating two different ideas. I can’t tell if it is intentional or you were sucked in. I’ll assume the later. If you want to be considered a credible person then make sure you look at what actually was said. I’ll give you a pass this time.
““We sent in the U.S. Marshals for the killer, the man who killed the young man on the street. He shot him… just cold blooded killed him,” Trump said. “Two and a half days went by, and I put out ‘when are you going to go get him?’ And the U.S. Marshals went in to get him, and they ended up in a gunfight. This guy was a violent criminal, and the U.S. Marshals killed him. And I will tell you something, that’s the way it has to be. There has to be retribution when you have crime like this.”
A gunfight can lead to a death and it happened but the conflated reference you made was a lie provided to you by those that don’t care about the truth.
There’s no evidence of an extrajudicial whatever. You just don’t like what you hear about their procedures. You and expert on police procedure Steve W? I dont think so
Reinhole was an armed and dangerous murderer. They attempted to take him into custody and it went down the way it did. Feel free to throw another riot over it.
and by the way Rittenhouse was not an advocate of anarchistic overthrow of the US, in fact he was a volunteer to deter disorder and illegal activity by the unruly rioters and a felonious mob, being perpetrated on the wild streets of Kenosha that night against lawful property owners. he had a right to be where he was when he was attacked with lethal force ie molotov cocktails, a skateboard, and a handgun. He also retreated from his attackers before he shot them. This is ALL ON TAPE. Undisputable facts that will prevail to support his self defense strategy against the false charges before the jury.
He will be exonerated and in fact the young man is a hero.
It seems like court packing by Republicans to me when Trump is President for four years and Republicans feel entitled to pack the court with Republicans for all vacancies that occur in a five year period. They do this strictly for ideological reasons – Merrick Garland, for example, was eminently qualified; more so than Garrett.
You bring up the Bork case, but the Senate rejected one Republican nominee and then confirmed the next one. That is how advice and consent works.
The Senate treated Garland with courtesy. They were under no obligation to confirm any nomination and the Democrats when they had control would bottle up nominations for two years or more. Suck it up.
The GOP Senate majority did not treat Garland at all – no visits, no hearing. They willfully refused their constitutional duty to advise and consent on a SC nomination. all in an effort to steal a SC seat nomination from a President elected twice by a majority of American voters.
They willfully refused their constitutional duty to advise and consent on a SC nomination.
Damn Book, you sound like a teenager that just got their license and are pissed your parents refused to give you the keys to their car. Try again you whiny brat.
Read the Constitution.
“They do this strictly for ideological reasons
Sotomayor much?
The list of Judges more qualified than her is a mile long.
At Barrett Hearing, Key Republican Concedes Republicans Could Lose White House
Which Explains The Rush To Confirm Barrett!
“Y’all have a good chance at winning the White House,” Sen. Lindsey O. Graham (R-S.C.) said to his Democratic colleagues on the Senate Judiciary Committee on Thursday morning, a fact that has not been far from the minds of everyone on that committee as they consider the nomination of Amy Coney Barrett to the Supreme Court.
There’s even a chance Graham’s own career in the Senate will come to an end. He’s locked in a tight race despite coming from a deep-red state and has grown so desperate that he begs for money almost every time he finds himself in front of a camera.
Though we know that anything could happen in the last few weeks of the campaign, the signs of a coming electoral cataclysm for the GOP are piling up. This has not stayed Republicans’ hand on Barrett’s nomination; to the contrary, they are determined to install her on the court if it’s the last thing they do.
And for many like Graham, it could well be the last thing they do before they suffer disaster at the polls. When they look back on this, will they say it was worth it?
Let’s consider the calendar. The committee has scheduled its vote on Barrett for Oct. 22. When she is approved — it’s almost certain that all the Republicans will vote in her favor and all the Democrats will vote no — the nomination will be moved to the full Senate. We already know how that will turn out; while Sen. Susan Collins (Maine) and Sen. Lisa Murkowski (Alaska) have both said they favor holding off until after the election, that leaves 51 Republicans ready to confirm Barrett.
That final vote will likely take place within about a week of the election. It will probably be the last major development of the campaign. And it is not just unpopular with the public in general (majorities of Americans say the seat should be filled after the election), but it is absolutely enraging to Democratic voters, who now see a 6-to-3 conservative majority on the court ready to unleash a right-wing legal revolution that attacks voting rights, civil rights, workers’ rights, campaign finance law and the ability of government to address problems such as climate change.
Biden’s polling lead over President Trump has grown to an average of more than 10 points. The Democrat raised a stunning $383 million in September alone; meanwhile, the Trump campaign has recently been so financially strapped that it has pulled TV ads in key battleground states. Biden is widening the map as states such as Arizona, Ohio and Texas that Trump won easily four years ago have become hotly contested.
Edited From: “Taking Over The Supreme Court Will Cost The GOP A Great Deal”
ha ha we all know it’s worth it. you guys crack me up.
and don’t be so sure it will cost the GOP anything. it might or it might not. we will soon know
I suspect the average baggy pants fool that the Democrats are trying to activate to go vote has no clue what the SCOTUS is in the first place.
Test
Is Anonymous admiring himself in a mirror?
Is that what it means when you post “Test” comments, Allan? Is that what you think Art Deco was doing?
https://jonathanturley.org/2020/10/13/the-barrett-hearing-questions-and-answers/comment-page-2/#comment-2012904
Other people test for problems, but you have an entire army of pretend Anonymous’s in your image. But since they are all pretend friends they don’t show up in the mirror.
This piece is inherently stupid and ignorant. First rules are for people who aren’t democrats and care about such things. When socialist lose they always change the rules and when someone uses those rules against its a world ending event. Comrade Barry ordered DACA to exist through words alone and when peasant trump went to take those words back as is his legal right both between and 100x after comrade barry. He was told he couldn’t because comrade barry is god.
“In reality, the ACA case is unlikely to be struck down.” While its arguable if this single case will strike the ACA. Its not arguable that the ACA is purely be unconstitutional. First taces must start in the house, the ACA did not. Second the ACA created a poll tax on voting. Poll taxes are illegal. These are just the outright in your face issues with the ACA.
Jonathan: You claim that Democratic senators have established the “Barrett rule”. i.e., they will vote against Barrett because she will not vote to uphold the ACA. While you admit a senator can vote for or against a nominee for a “good, bad or no reason” their vote must be “principled”. I fail to see how voting against Barrett because she won’t uphold the ACA is not a “principled” position…it’s not just the position you endorse. You also argue that “For most of our history, senators followed the rule that disagreement with a nominee’s jurisprudential views was not a basis to vote against their confirmation. A president was viewed as constitutionally entitled to appoint jurists reflecting their own legal viewpoint…”. In 2016 McConnell and the Republican controlled Senate refused to follow the “rule” when Obama nominated Judge Merrick Garland. McConnell refused to hold hearings on Garland’s nomination–breaking a 100 year old record for the longest gap between a Court nomination and confirmation. McConnell’s excuse at the time was that the next president should fill the vacancy. We all know what happened next. On May 19, 2016 Trump released his list of potential Supreme Court nominees–all conservatives to firm up his voting base of religious conservatives. On January 31, 2017 Trump Neil Gorsuch and McConnell rushed through this nomination in less than 3 months. My how times have changed. Now McConnell wants to push through Barrett’s nomination while millions are already voting–putting aside more import work on a new coronavirus relief package. This is also court “packing” by any reasonable definition.
I fail to see how voting against Barrett because she won’t uphold the ACA is not a “principled” position…it’s not just the position you endorse.
It’s apparent what you see as a principled position is the Democrats desire to put justices on the court that prioritize policy over the constitution. And not just any policy, but policies Democrats support. I’m confident Republicans want justices to rule in favor of policies they support as well, but the principled difference is Republicans want to put justices on the court that prioritize the constitution above all else. This of course means policy will need to be debated in the legislative branch and laws created that will pass a constitutional challenge in SCOTUS. If you consider court packing to be confirming justices that prioritize the constitution over all else, then let’s pack away.
Hahahahaha!
Republicans refused to vote on dozens of judges nominated by Obama because they prioritized their own policies.
Republicans refused to vote on dozens of judges nominated by Obama because they prioritized their own policies.
Obama nominated judges that were originalists and Republicans refused to vote for them? Pardon me if I don’t take your word for it.
You just moved the goalposts from prioritizing the Constitution (which the judges nominated by Obama did) to being originalists (which is all you’ll accept), just so you could avoid dealing with the fact that Republicans prioritized their own policies over the Constitution in refusing to vote on dozens of judges nominated by Obama.
You’ll probably resort to another fallacy now, like No True Scotsman, in order to pretend that originalists are the only ones who prioritize the Constitution.
You just moved the goalposts…
Goalposts is perfect. I didn’t move it, I just added a 2nd upright. Constitutionalist and Originalist.
Jackass, adding another requirement IS moving the goalposts.
LOL! Okay, guilty.
There must be an immediate injunction against election fraud by Twitter and Facebook.
Shocking if true.
The computer repairman who legally acquired the computer that contained Biden’s emails and photos was warned by the FBI to keep quiet:
“The Delaware computer repair man who revealed Hunter and Joe Biden’s email dealings with a Burisma executive told reporters that the FBI had asked him to stay quiet about his acquisition of Hunter Biden’s laptop after they recovered the device through federal subpoena.
Isaac revealed that the FBI had tried to convince him to stay silent about his discovery of the laptop’s contents, when speaking at length with reporters who arrived at his store on Wednesday after the New York Post published the story. “They told me that nothing ever happens to people who don’t talk, the FBI, and that made me scared, because that’s not something I would expect the highest branch of,” said Isaac. “Don’t, don’t — It was more along the lines of, in our experiences when stuff like this happens nothing ever bad happens to people that keep quiet.”
https://bigleaguepolitics.com/wow-computer-repairman-who-exposed-biden-emails-says-fbi-told-him-to-stay-quiet/
Another piece of evidence that it’s not just the upper echelons of the FBI who are untrustworthy.
Abolish the FBI.
At the very least, fire the top three echelons and break it up into about six pieces. And require them by executive order to record their interviews.
What a strange coincidence: With 193 or so countries on this planet, the two countries that the unqualified and inexperienced Hunter Biden secured hugely lucrative contracts with just happen to be the same two countries Joe Biden is made the point man. There’s nothing to see here, move along.
Another one absent from discussion is Joe Biden.
He should be questioned under oath.
Politico reported Wednesday, “Biden’s campaign would not rule out the possibility that the former VP had some kind of informal interaction with Pozharskyi, which wouldn’t appear on Biden’s official schedule. But they said any encounter would have been cursory.”
https://www.westernjournal.com/computer-repair-shop-owner-speaks-infamous-laptop-really-contained/?utm_source=Email&utm_medium=aa-breaking&utm_campaign=can&utm_content=firefly&ats_es=4b5c429f887fae96cbd6b730a05ed04b
Yeah informal, like I don’t want this in the public record that I’m meeting with a Ukrainian oligarch connected with my son.
William Barr is “Mr. Deep Deep State.”
Christopher Wray is his Deep Deep State lieutenant.
John “Dudley Do-Right” Durham is a dutiful Deep Deep State soldier.
CTHD is noticeably absent from posts today.
Is it wrong to think she is busy being briefed on what to say about the Biden influence-peddling-racketeering scandal?
Light posting by Gainesville today. He’s only using one of his handles.
No wonder she stopped responding to you. What a wanker you are.
Anonymous, you are the one that likes to whine and complain about others using insults. You are a hypocrite and a whiner. I should also add, you aren’t too bright.
She stopped replying to you too, Allan. You still follow her around like a toddler who’s overdue for a nap.
Back a couple of threads you said you wouldn’t reply to me either. You lied. So now we know you are both a liar and insulting. I almost forgot. You also aren’t bright.
Commit is at the unemployment office today making up stories about job interviews.
BINGO!
“All you have to do is stop thinking of the media as “journalists” who “speak truth to power” and start thinking of them as pro bono lawyers working for the Biden campaign who will hide and destroy evidence for their client, and everything makes sense very quickly” @BuckSexton