Judge Amy Coney Barrett is not participating in good faith in her Senate Judiciary Committee confirmation hearings. Barrett is dodging answering any substantive questions with the canned response that “If that question ever came before me, I’d need to hear arguments from the litigants and read the briefs, and review it with my law clerks, and go through the opinion writing process. I don’t think we want judges to be legal pundits.”
If the point of this hearing was to impress America with Judge Barrett’s intellectual rigor and legal reasoning, it has been a complete failure. The only thing Judge Barrett has managed to demonstrate to the American public is that she is disciplined at being evasive and non-responsive to any question posed to her. I think most Americans will find her performance dishonest and deceptive. This does not speak well to her character and integrity.
Since Judge Barrett has opted not to participate in good faith, Sen. Sheldon Whitehouse (D-RI) decided not to waste his time asking her questions to which he would never receive a straight answer, so instead he conducted a masterclass on how wealthy plutocrats and the GOP have for decades corrupted the courts to achieve the goals they could not hope to achieve through a democratic legislative process. Plutocrats and their lickspittle lackeys in the Republican Party have turned the federal courts into an anti-democratic, anti-majoritarian bastion of preserving a tyranny of the minority of wealthy white male plutocrats.
Mother Jones reports, Watch Sen. Sheldon Whitehouse School Amy Coney Barrett on Dark Money (excerpt):
With no way to block the confirmation, Democrats instead have used the time to focus not so much on the nominee in front of them but on issues relevant to the process. Sen. Sheldon Whitehouse (D-R.I.) took his full 30 minutes to provide a Schoolhouse Rock!–style tutorial on the dark money forces at work behind Barrett’s nomination—a process he called “The Scheme.” Citing the Washington Post, Whitehouse described a $250 million dark money operation designed to capture the courts and push cases to friendly judges in the hopes of favorable rulings. “Two hundred and fifty million dollars is a lot of money to spend if you’re not getting anything for it,” he said. “So that raises the question: What are they getting for it?”
To answer that question, Whitehouse provided charts and bullet points that would make Glenn Beck proud. One of his posters laid out the Republican Party’s own words explaining precisely what they want from judicial nominees: “A Republican president will appoint judges … who will reverse the long line of activist decisions—including Roe, Obergefell, & the Obamacare cases,” referring to the landmark abortion, same-sex marriage and health care cases. “That is their stated objective and plan,” Whitehouse said. “Why not take them at their word?”
The Republicans, Whitehouse noted, seem to be getting their money’s worth. Their judicial nominees have voted in at least 80 cases where “there is an identifiable Republican donor interest” and ruled in their favor, to the detriment of workers’ rights, women’s rights, voting rights, and the environment. Whitehouse, who is a former US Attorney, sounded like someone delivering a closing argument in the courtroom. He blamed the Supreme Court’s 2010 decision in Citizens United, which allowed unlimited money to flow into political campaigns, for the current situation.
Whitehouse drew arrows with sharpies and explained in remarkably clear terms how anonymous money has fueled conservative legal advocacy groups like the Federalist Society and the Judicial Crisis Network that have spent millions cultivating and promoting conservative, ideological candidates like Barrett for the federal bench. He even held up a copy of one of the ads that anonymous money had paid for in support of Barrett’s nomination that explicitly suggested she’d overturn the 1973 abortion rights decision Roe v. Wade.
At the heart of Whitehouse’s chart was Donors Trust, a shadowy foundation the senator described as an “identity scrubbing” operation that allows rich donors to hide their contributions to influence judicial nominations and weaken federal regulations. Donors Trust has funnelled millions of dollars over the years into groups working for a conservative takeover of the federal courts, without ever disclosing where the money came from.
In 2013, Mother Jones called Donors Trust the “dark money ATM of the conservative movement:
Founded in 1999, Donors Trust (and an affiliated group, Donors Capital Fund) has raised north of $500 million and doled out $400 million to more than 1,000 conservative and libertarian groups, according to Whitney Ball, the group’s CEO. Donors Trust allows wealthy contributors who want to donate millions to the most important causes on the right to do so anonymously, essentially scrubbing the identity of those underwriting conservative and libertarian organizations. Wisconsin’s 2011 assault on collective bargaining rights? Donors Trust helped fund that. ALEC, the conservative bill mill? Donors Trust supports it. The climate deniers at the Heartland Institute? They get Donors Trust money, too.
Donors Trust is not the source of the money it hands out. Some 200 right-of-center funders who’ve given at least $10,000 fill the group’s coffers. Charities bankrolled by Charles and David Koch, the DeVoses, and the Bradleys, among other conservative benefactors, have given to Donors Trust. And other recipients of Donors Trust money include the Heritage Foundation, Grover Norquist’s Americans for Tax Reform, the NRA’s Freedom Action Foundation, the Cato Institute, the American Enterprise Institute, the Federalist Society, and the Americans for Prosperity Foundation, chaired (PDF) by none other than David Koch.
Whitehouse asked no questions of Barrett, who appeared somewhat bewildered by the mind-boggling and complicated network of interests and money described in Whitehouse’s charts. As with many Supreme Court nominees before her, she has declined to express an opinion about Citizens United, political dark money, or really, much of anything, during the first two days of the hearings.
On Wednesday, Senator Sheldon Whitehouse continued to expose the shadowy right-wing network that handpicked Amy Barrett:
Sen. Sheldon Whitehouse (D-RI) continued his exposure of the shadowy network of right-wing billionaires who are rigging the judicial system in their own favor.
The Rhode Island Democrat laid out evidence of how that network identifies and promotes friendly judges during Tuesday’s confirmation hearing for Amy Coney Barrett, and on Wednesday he explained, using the 2017 Janus decision as an example, how they rig the legal process itself.
“It wasn’t the injured person that went and hired a lawyer,” Whitehouse said. “It was the legal group that went and found a plaintiff, and then they went to court, which everybody does, but it got interesting there because there the lawyers asked to lose. I don’t know if you’ve ever been with a case in which the lawyers have asked to lose before, I never have been. I’ve never litigated against anybody who asked to lose. Have you ever been in a case in which a party asked to lose?”
Barrett agreed that she had not, either, and Whitehouse continued to explain how the well-funded conservative legal network punted on that case after Justice Antonin Scalia died in 2016 in hopes of undoing rules requiring union dues from non-members.
“So these groups with all the money behind them from Donors Trust and the Bradley Foundation and all come into court, and they say, ‘Please dismiss my case in the district court,’” Whitehouse said, “then they go up to the Ninth Circuit, and they specifically ask the Ninth Circuit to get rid of their case, to uphold the decision dismissing their case, quote, ‘as quickly as practical, practicable and without argument.’ Have you ever seen a case in your circuit where somebody said, ‘I’d like to lose, and I’d like to lose as quickly as practicable and lose without making an argument on behalf of my client?’”
Again, Barrett agreed she hadn’t seen that, and Whitehouse explained how the National Right to Work Legal Defense Foundation and other corporate groups felt confident they’d eventually win — with the right court.
“One of the things that has been a constant for me has been the belief that, even if I was kind of taking a long-shot case, I’d get a fair hearing, get a fair decision and I had a shot,” Whitehouse said. “I’ve got a feeling that the lawyers going into the United States Supreme Court in that Janus case, looking at this array of commonly funded anti-union front groups assembled against them as [friends of the court], having seen what Friedrichs portended, having been signaled by [Justice Samuel] Alito in those earlier cases that they wanted to get rid of Abood, they were on the hunt for Abood. That’s a feeling that no lawyer should have in America.”
“All I want to do is leave with you the thought that when you’re on the court, I hope you will conduct yourself and see in whatever way you can that the court conducts itself in such a way that no lawyer goes into an argument in the United States Supreme Court feeling that the case is set against them, and there’s nothing to be done other than to go in and take your medicine.”
Whitehouse explained how the same network of right-wing billionaires secretly funded a variety of legal organizations that filed legal briefs in hopes of reaching courts packed with hand-selected judges and justices — and he asked Barrett to consider why she’d been selected [by the Federalist Society].
In November 2017, President Donald Trump released a revised list of potential Supreme Court nominees which included Judge Amy Coney Barrett. “The November 2017 list was an expanded version of two earlier lists, announced during the 2016 presidential campaign, from which then-candidate Trump pledged, if elected, to pick a successor to the late Justice Antonin Scalia” from a list pre-approved by the Federalist Society. (h/t SCOTUSblog).
“It’s something that the public and the parties and the court ought to know,” Whitehouse said. “If what you have is amicus groups coming in flying false flags, not revealing whose interest they’re really there to support, and potentially teeing up arguments and ideas that will benefit the secret funders, that will maybe tee up for a case they know is coming but isn’t this case, but if they can tilt the law a little bit, it can have an effect later on.”
“I urge you to consider that,” Whitehouse added. “I’m 13 seconds out, I’ll leave it with that. Please think about these things. There’s something that is not right about the way this is happening, and I urge you, and I urge anybody from the court who is listening, to try to sincerely clean this mess up because it is not good for the court.”
Does anyone believe that Judge Barrett will be introspective and take to heart Senator Whitehouse’s concerns? Absolutely not.
UPDATE: Judge Barrett will also ignore this plea from her colleagues at the University of Notre Dame as well. Dozens Of Amy Coney Barrett’s Notre Dame Colleagues Call For Halt To Nomination:
Eighty-eight faculty members at the University of Notre Dame, where Amy Coney Barrett is a law school professor, said she should call for a halt to her Supreme Court nomination until after the election.
In a letter dated Oct. 10 but posted online Tuesday, Barrett’s colleagues congratulated her on her nomination, adding: “It is vital that you issue a public statement calling for a halt to your nomination process until after the November presidential election.”
The signatories hailed from the university’s political science, sociology, history and other departments — none from the law school.
The letter argues for Barrett to take this “unprecedented step,” saying that Americans are already voting in the general election and that moving forward at this stage would “deprive the American people of a voice in selecting the next Supreme Court justice.”
The letter noted that the late Supreme Court Justice Ruth Bader Ginsburg’s final wish was that she not be replaced until the next president is in place.
If Judge Barrett will not do what the average person understands is the right thing to do, then don’t speak to me about her alleged integrity or moral or ethical character.
The whole theory of originalism is complete nonsense. It is just a theory to justify a pre-determined outcome. John Adams and Jefferson never even knew about microscopic organisms, electricity, nor nuclear energy, let alone multiple round weapons, the internet or space exploration. So surely all those are not justified by the Constitution as the originalists had no idea about any of it. So originalists selectively pull out those they like and those they dont and justify them. Scalia’s theories were nonsense. His acolyte should not be confirmed if she is on that same page–and obviously she is. The real problem is the lack of courage from Congress to precisely write laws so it clear what they want.
Sen. Sheldon Whitehouse, in an op-ed at the Washington Post writes, “A Justice Barrett must recuse herself from deciding the future of the president who picked her”, https://www.washingtonpost.com/opinions/2020/10/11/justice-barrett-must-recuse-herself-deciding-future-president-who-picked-her/
“They aren’t even trying to hide it: President Trump and Senate Republicans are desperately rushing to confirm Judge Amy Coney Barrett to the Supreme Court in time to rule on bogus election-administration disputes they have in the pipeline: Bush v. Gore 2.0.
Barrett has an obligation to recuse herself from those disputes, and she should promise to do just that.
Trump has made clear he wants Barrett in place to help him win the election. “I think this will end up in the Supreme Court,” he said. “We need nine justices.”
For Barrett, this is a test of integrity, both for herself and for our system of government. She must commit to recuse herself from any election-related dispute.”
Judge Barrett has steadfastly refused to commit to what should be the easiest moral and ethical decision to make, and the most obvious: recusal from any post-election dispute brought by the man who appointed her to the court to decide the election.
“In the 2009 Supreme Court decision Caperton v. A.T. Massey Coal Company, Justice Anthony M. Kennedy wrote: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause.”
[T]he Constitution demands recusal here, too, under the factors the court applied in Caperton: Trump had “disproportionate influence” over Barrett’s selection. He has a “personal stake” in any case.
This is Barrett’s first big test. If she truly cares about judicial independence and the Constitution, she should recuse.”