October 15, 2020

How 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 reeling from a grueling election season and a global pandemic.

For many, especially those on the left and centre, Barrett's confirmation is seen as an undemocratic power-grab by Republicans, who are hastening to appoint a conservative Supreme Court justice just weeks before a presidential election, starkly opposing the rationale they used to block President Obama's nominee, Merrick Garland, in 2016.

Barrett's confirmation hearings have drawn hundreds of protesters to the Senate building's steps, calling for a delay in the nomination process until after the election, under the banner of "letting the people decide" the future of the nation's highest court. A sit-in outside the Senate building on Tuesday led to at least 21 arrests.

Barrett’s addition to the Supreme Court would cement a conservative majority (6-3), potentially overturning decades of established legal precedents.

A far-right Christian conservative, Barrett boasts a judicial record that reveals more about her personal beliefs than her capacity for impartial adjudication based on caselaw. In her rulings and public addresses, Barrett has repeatedly expressed her pro-life positions and opposition to women's reproductive rights. As a result, there is widespread concern that Barrett, along with the court's conservative faction, will move to gut the pivotal Roe v. Wade decision (1973) that legalised abortion nationwide.

Barrett has also exhibited a harsh stance on immigration and a bias towards corporate interests over workers' rights, evidenced in her rulings that have favoured employers, including a prominent case where she sided with a company that had segregated its workforce.

Crucially, Barrett's track record on corporate welfare and workers' rights suggests she might support efforts to dismantle the Affordable Care Act (ACA), also known as Obamacare. This move could strip millions of Americans of health insurance amid a deadly pandemic. If the Republicans' confirmation timeline remains on track, Barrett could be inducted in time to participate in the initial oral arguments for the ACA case scheduled for 10 November.

During the hearings, Barrett also offered alarmingly evasive responses on the extent of presidential powers, including a president’s capacity to pardon himself, and expressed skepticism over 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.” 

Barrett’s judicial philosophy and her proclivity to base her decisions on her personal beliefs could significantly endanger the freedoms and welfare of countless individuals both nationally and globally. Her potential rulings could threaten healthcare access and abortion rights, jeopardise the integrity of the electoral process through decisions on campaign financing, gerrymandering and voter suppression, and obstruct efforts to address environmental challenges.

But beyond her views on critical issues, it is Barrett's Barrett's confirmation process itself, and the way it's being expedited, that represents a dire risk to the already precarious state of American democracy. 

The Republican push to fast-track Barrett's nomination highlights a broader strategy by the American right to establish minority rule, using tactics like packing the judiciary with lifetime-appointed judges who will further conservative and corporate agendas for generations.

“[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 during this week's confirmation hearings. On Wednesday, 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.”

He added, “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. Graham's remarks affirm that he and his party are openly prioritising the interests of a specific demographic in their role of nominating a Supreme Court justice - a task that should be fundamentally neutral. In essence, Republican leaders are lauding Barrett not for her judicial acumen or her capacity to impartially adjudicate, but for her personal convictions, which mirror theirs, and her willingness to translate these beliefs into legal rulings. Thus, they are overtly exploiting the judiciary as an instrument to undermine democracy.

Barrett's confirmation has also shed light on the troubling trend of dark money fueling Republican efforts to stack the judiciary. Senator Sheldon Whitehouse highlighted that Barrett’s nomination is entangled with conservative interest groups. These groups have covertly directed hundreds of millions of dollars into efforts to install far-right judicial nominees, underscoring the profound influence of undisclosed financial backers on the court-packing agenda.

“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,” Lisa Graves, executive director of the policy research group True North Research and the Ben Franklin Project, told Democracy Now!.  

As the presidential race draws to a close, the addition of Barrett to the bench may play a pivotal role in determining the election's outcome. President Trump has openly suggested he might contest the election results if he does not win. With a conservative majority that includes three justices appointed by him, there is speculation that, echoing the 2000 Bush v. Gore decision, this Supreme Court could potentially decide in his favour, effectively handing Trump the presidency.

Barret, on her part, indicated that she will not recuse herself from any cases involving the 2020 election and declined to deliver an unequivocal opinion regarding 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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