Tag Archives: Amy Coney Barrett

Denialism And The Courts

Mitch McConnell has made no bones about his highest priority–capturing the judiciary for his version of “conservatism,” and–at this. juncture, with continued control of the Senate in considerable doubt–super-charging the confirmation of nominee Amy Coney Barrett to the Supreme Court.

The likely confirmation of Barrett (who reminds me of one of the Stepford Wives), a perfect replica of a 1950’s “lady” but “new and improved” with a law degree, has been the focus of much speculation. Her ascension to the court would accomplish the dearest wish of the GOP base– a lopsided 6-3 Court majority for their brand of conservatism. A recent article from New York Magazine is representative.Titled “Trump’s New Supreme Court is Coming for the Next Dozen Elections,” the article points to the likely consequences for electoral politics:

When Judge Amy Coney Barrett sits for questions before the Senate Judiciary Committee in mid-October, no doubt Democrats will pepper her with questions about whether she would recuse herself in any Trump v.Biden election lawsuit to come before the Supreme Court. Although that’s an important question to ask, perhaps the bigger question is what it wouldmean in the long run for voting and election cases to have a sixth conservative justice on the Supreme Court.

In short, a Barrett confirmation would make it more likely we will see a significant undermining of the already weakened Voting Rights Act — the Court said on Friday it will hear a case involving the law. A 6-3 conservative Court might allow unlimited undisclosed money in political campaigns; give more latitude to states to suppress votes, especially those of minorities; protect partisan gerrymandering from reform efforts; and strengthen the representation of rural white areas, which would favor Republicans.

Other predicted consequences include striking down the Affordable Care Act and–of course–overruling Roe v. Wade.

There is a measure of uncertainty about the extent to which COVID will complicate McConnell’s super-charged timeline. (I don’t wish hospitalization or death  on anyone, but given the irresponsibility of the President and GOP, I don’t think it’s wrong to hope for a couple of weeks of extreme discomfort and an inability to participate in deliberations/votes.) Lindsey Graham, who heads the committee has refused to take a COVID test despite several incidents of exposure–presumably to avoid having to isolate and thus delay the hearings.

The likelihood of Barrett’s confirmation has generated serious discussion about a Biden Administration adding Justices to the Supreme Court. Although the media has labeled that possibility “court packing,” law and courts scholars have discussed adding Justices and similar reforms (having federal appellate judges “rotate” onto the Court for specific periods or cases, term limits for Justices, etc.) for years–long before Trump’s assault on judicial independence. For that matter, the Judicial Conference has noted the need for additional judges  in a statement to the Senate Judiciary Committee.

“The effects of increasing caseloads without a corresponding increase in judges are profound,” wrote Judge Brian Miller of the United States District Court for the Eastern District of Arkansas on behalf of the Judicial Conference of the United States. He continued:

Delays increase expenses for civil litigants and may increase the length of time criminal defendants are held pending trial. Substantial delays lead to lack of respect for the Judiciary and the judicial process. The problem is so severe that potential litigants may be avoiding federal court altogether.

Whatever actually happens, I want to make a point I’ve not seen discussed: the arguably incorrect labelling of Justices like Alito and Thomas, and nominees like Barrett–not to mention some of the Neanderthals McConnell has placed on lower courts–as “Conservative.”

Conservatives want to preserve values that they believe are necessary to the social order; they are consequently cautious about change or innovation. People of good will can and do debate which values meet that definition and why, and “caution” about change is not the same thing as “adamant opposition.’ (If you are interested in seeing what actual, responsible conservatism looks like, visit the site of the Niskanen Center.)

The people McConnell’s GOP has placed on our courts aren’t conservative in the time-honored meaning of that term. If anything, they’re radical. To appropriate a phrase used by historian Stephanie Coons, they want to return to “the way we never were,” a fondly-remembered, wholly fictionalized White Christian America in which the “little woman” dutifully attended her husband, LGBTQ people were in the closet back behind the coats, and dark-skinned folks “knew their place.”

We are in a period of paradigm shift, and a substantial portion of our fellow citizens are–as the saying goes–standing athwart history yelling stop.

To call those people “conservatives” is unfair to the genuine article.