October 15, 2020

Barrett’s confirmation threatens American democracy

topic:	Political violence
located:	USA
editor:	Yair Oded

The confirmation hearings for Supreme Court nominee judge Amy Coney Barrett, which began on Monday and will conclude today (Thursday), have buffeted a nation already shaken by a withering election season and a global pandemic. For many, primarily on the left and center, Barrett’s confirmation constitutes nothing short of an anti-democratic power-grab by Republicans, as they rush to install a conservative Supreme Court justice weeks before a presidential election in blunt contradiction of the arguments they themselves wielded in order to thwart president Obama’s candidate in 2016, Merrick Garland. 

Barrett’s confirmation hearings have drawn hundreds of protesters to the steps of the Senate building, demanding that politicians postpone the nomination process till after the elections and “let the people decide” what will be the future of the nation’s highest court. A sit-in outside the Senate building on Tuesday resulted in at least 21 arrests. 

Barrett’s addition to the Supreme Court would secure a conservative majority on the bench (6-3), and potentially derail decades of legal precedents. Barrett, a far-right Christian conservative, boasts a record as a judge that reveals more about her personal beliefs than about her ability to adjudicate cases impartially based on caselaw. In her decisions and speeches, Barrett has openly and explicitly affirmed her pro-life stances and opposed women’s right to choose; many now understandably fear that Barret, along with the conservative wing of the court, will gut the landmark Roe v. Wade decision (1973) which legalised abortion throughout the U.S.

Barrett has also exhibited a harsh stance on immigration and showed hostility towards workers’ rights in cases where she bluntly favoured corporations over individuals; this includes a case in which she sided with an employer whose workforce was segregated.

Crucially, Barrett’s record on workers’ rights and corporate welfare could very well mean that she will vote in favour of the Trump administration’s attempt to gut the Affordable Care Act (ACA), known as Obamacare, and potentially deprive millions of Americans of health insurance during a deadly pandemic. Should Republican’s confirmation schedule proceed uninterrupted, Barrett could be sworn in in time to attend the first oral arguments on the ACA case on 10 November. 

Barrett has also presented alarmingly vague opinions during the hearings regarding the validity of limits of presidential power and a president’s ability to pardon himself, and expressed skepticism about the existence of climate change. “You know, I’m certainly not a scientist,” said Barrett, “I have read things about climate change - I would not say I have firm views on it.” 

It is clear that Barrett’s socio-political leanings and her proclivity to base her rulings on them could pose grave risks to the liberty and well-being of millions around the country and even the world, as she could support efforts to undermine access to healthcare and abortion, imperil the free election process through rulings on campaign-funding, gerrymandering, and voter suppression cases, and stymie pro-environment enterprises. But beyond her specific views on critical issues, it is Barrett's very confirmation - and the manner in which it is being executed - that poses a mortal threat to the future of the already wobbling American democracy. 

Republicans’ attempt to ram through Barrett’s nomination is indicative of a strategy employed by the American right to institute a minority rule over the majority by, among other tactics, packing the courts with hundreds of judges with lifetime appointments who will advance conservative and corporate political agendas for decades to come. 

“[W]orking together we’re changing the federal courts forever!” Senate Majority Leader Mitch McConnell (R-KY) blared at a Trump rally in November 2019. “Nobody’s done more to change the court system in the history of our country than Donald Trump. And Mr. President, we’re going to keep on doing it. My motto is leave no vacancy behind.”

This political theater has been on full display throughout the confirmation hearings this week. On Wednesday, the chairman of the Judiciary Committee, Republican Senator Lindsey Graham (who is in the midst of a bitter re-election battle in his home state of South Carolina), stated that “This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology, and she is going to the court,” adding that, “This hearing, to me, is an opportunity to not punch through a glass ceiling, but a reinforced concrete barrier around conservative women [...] You’re going to shatter that barrier.”

Let his comments sink in for a moment. What Graham confirms is that he and his party are blatantly favouring the interests of a particular demographic as they carry out their duty of selecting a Supreme Court justice - a process that is meant to be impartial. They are venerating Barrett, in essence, not for her legal acumen or her ability to set aside her beliefs and opinions and render fair decisions, but rather for her personal views, which align with theirs, and her intention to translate them into rulings. In other words, they are pushing Barrett through because they perceive her as someone who will, as opposed to reviewing cases from an unbiased perspective, be sure to overturn legislation they wish to do away with. Thus, they are unabashedly using the judiciary as a tool for subversion of democracy.

Barrett’s confirmation also exposes a sinister phenomenon of dark money mobilising Republican campaigns to pack courts. As pointed out by Senator Sheldon Whitehouse, several major conservative interest groups that have repeatedly and stealthily funneled hundreds of millions of dollars into campaigns to ram through far-right judges and justices have been associated with Barrett’s selection as well. “This is an unreal situation, where we have groups raising money from a small number, potentially, of billionaires, who are then spending money to put people on the court to overturn precedent,” said Lisa Graves, executive director of the policy research group True North Research and the Ben Franklin Project on Democracy Now!.  

As the presidential race draws to a close, the addition of Barrett to the bench could prove instrumental in deciding the outcome of the election. With Trump openly threatening to challenge the ballot should he lose, a conservative majority of justices, three of which were his appointees, could, if the precedent set by the 2000 Bush v. Gore case were followed, hand him the presidency. Barret, on her part, indicated that she will not recuse herself from any cases involving the 2020 election and has refused to deliver a clear opinion about Trump’s right to reject a peaceful transfer of power. 

Image: The White House from Washington, DC - President Trump Nominates Judge Amy Coney Barrett for Associate Justice of the U.S. Supreme Court

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