The War for the Supreme Court (Ginsburg is dead)

[malchior]

As entertaining as Sen. Whitehouse's X-Files info dump was, I'm pretty impressed by Sen. Klobuchar's actual questioning of Judge Barrett.

I went back and watched it. FWIW, that is actually a decent case he put together. It's all circumstantial but it is worth some reporters digging into it. It isn't likely criminal but it almost certainly is the framing of a blockbuster news story and/or a book.

[malchior]

Just catching up - so a potential Supreme Court justice thinks the peaceful transfer of power is a 'political issue' that she shouldn't touch. I don't know about that...

[YellowKing]

I liked how Pod Save America framed it on their latest episode. The gist of it was the GOP and Amy Barrett would have you believe she is an impartial, non-committal judge even as they rush to get her confirmed days before an election in the middle of a pandemic while the country desperately needs stimulus aid that these hearings are taking time away from.

[Defiant]

Sorry if this has been brought up upthread, but...

Barrett wrote for a unanimous three-judge panel in 2019 that upheld the dismissal of a workplace discrimination lawsuit by Terry Smith, a Black Illinois transportation employee who sued after he was fired. Smith’s claims included that he was called a racial slur by supervisor Lloyd Colbert.

“The n-word is an egregious racial epithet,” Barrett wrote in Smith v. Illinois Department of Transportation. “That said, Smith can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment.”

https://apnews.com/article/race-and-eth ... aaa7eda224

[malchior]

WTF. What constitutes a hostile workplace then? Does the guy need to hit him with his car while calling him the N-word?

[$iljanus]

Just catching up - so a potential Supreme Court justice thinks the peaceful transfer of power is a 'political issue' that she shouldn't touch. I don't know about that...

Feinstein asked about the Constitutionality of moving the election and Klobuchar asked about if voter intimidation is illegal at the poll. Both are sort of gimme questions since the first is covered in the Constitution while the second has the backing of Federal law. She demurred both times which is a bit frightening.

As for the peaceful transfer of power, Trump’s evasiveness is a manufactured political drama on his part and an originalist such as herself would think that the Founding Fathers certainly would be supportive of a peaceful transition of power, which supersedes politics

[malchior]

I think she is either being intentionally evasive or she doesn't understand the role she is stepping into. Which is possible because she doesn't have a lot of practical experience. Anyway, hiding behind the 'political question' shield to avoid answering questions about fundamental values...that isn't candor. But then again this is a sham anyway.

[El Guapo]

WTF. What constitutes a hostile workplace then? Does the guy need to hit him with his car while calling him the N-word?

"You [N-Word]! I want to create a hostile work environment for you by saying the slur that I just said!"

[Smoove_B]

But then again this is a sham anyway.

Exactly. As has been repeatedly stated, everything you need to know about her character is encapsulated in the idea that she accepted the nomination under the current political and social climate in America and thinks this is a super terrific time to have hearings. She's more of a red flag to me than Kavanaugh, and that's saying something.

[malchior]

She's more of a red flag to me than Kavanaugh, and that's saying something.

For me as well. It is no accident she got seated as a appeals judge 3 years ago. She was positioned there to wait for an opening.

[Little Raven]

A nuanced look at the hearings from the Times.

In 1995, Justice Elena Kagan, then a young law professor, wrote a law review article calling Supreme Court confirmation hearings “a vapid and hollow charade.”

“The safest and surest route to the prize,” she wrote, “lay in alternating platitudinous statement and judicious silence.”

Judge Amy Coney Barrett expertly followed that playbook at her confirmation hearings on Tuesday, in her first day of answering questions from the Senate Judiciary Committee. Speaking without notes, she gave sure-footed accounts of Supreme Court precedents and then, almost without exception, declined to say whether the decisions were correct.

Judge Barrett was patient, calm, a little stern and sometimes surprisingly terse when she spoke about the law, easily parrying most questions from the Democratic senators who tried to put her on the spot.

She is doing exactly what you are supposed to do during these hearings. Which is absolutely inane, true....but Kagan did it, Sotomayor did it, basically EVERYONE since Bork has done it....because it's what you have to do. Hell, it's called the Ginsburg rule for a reason.

Judge Barrett also cited the so-called Ginsburg rule, named for Justice Ruth Bader Ginsburg, who died last month and whose seat Judge Barrett hopes to assume. Justice Ginsburg was nominated by President Bill Clinton, a Democrat.

At her confirmation hearing in 1993, Justice Ginsburg distilled the responsibilities of nominees into a pithy phrase: “no hints, no forecasts, no previews.”

Judge Barrett said she would adopt the same stance. “That had been the practice of nominees before her, but everybody calls it the Ginsburg rule because she stated it so concisely, and it has been the practice of every nominee since,” she said.

Of course, none of this should be a surprise. If you're a good enough lawyer to be considered for nomination to the Supreme Court, you're probably a good enough lawyer to avoid making any major mistakes in front of a committee.

[malchior]

A nuanced look at the hearings from the Times.

So to sum it up - beyond the raw power politics that threaten to shatter the legitimacy of the court - she was stoic enough for the cameras. Terrific.

[El Guapo]

A nuanced look at the hearings from the Times.

So to sum it up - beyond the raw power politics that threaten to shatter the legitimacy of the court - she was stoic enough for the cameras. Terrific.

This is part of why I think the right move was to boycott the hearings. It's mostly playing on the GOP's turf.

[malchior]

A nuanced look at the hearings from the Times.

So to sum it up - beyond the raw power politics that threaten to shatter the legitimacy of the court - she was stoic enough for the cameras. Terrific.

This is part of why I think the right move was to boycott the hearings. It's mostly playing on the GOP's turf.

I think they are in a no win situation there. Democrats are afraid to look radical. And that tough is when the norm has been radicalized asymmetrically and accepted by the 'referees' asymmetrically.

[$iljanus]

A nuanced look at the hearings from the Times.

In 1995, Justice Elena Kagan, then a young law professor, wrote a law review article calling Supreme Court confirmation hearings “a vapid and hollow charade.”

“The safest and surest route to the prize,” she wrote, “lay in alternating platitudinous statement and judicious silence.”

Judge Amy Coney Barrett expertly followed that playbook at her confirmation hearings on Tuesday, in her first day of answering questions from the Senate Judiciary Committee. Speaking without notes, she gave sure-footed accounts of Supreme Court precedents and then, almost without exception, declined to say whether the decisions were correct.

Judge Barrett was patient, calm, a little stern and sometimes surprisingly terse when she spoke about the law, easily parrying most questions from the Democratic senators who tried to put her on the spot.

She is doing exactly what you are supposed to do during these hearings. Which is absolutely inane, true....but Kagan did it, Sotomayor did it, basically EVERYONE since Bork has done it....because it's what you have to do. Hell, it's called the Ginsburg rule for a reason.

Judge Barrett also cited the so-called Ginsburg rule, named for Justice Ruth Bader Ginsburg, who died last month and whose seat Judge Barrett hopes to assume. Justice Ginsburg was nominated by President Bill Clinton, a Democrat.

At her confirmation hearing in 1993, Justice Ginsburg distilled the responsibilities of nominees into a pithy phrase: “no hints, no forecasts, no previews.”

Judge Barrett said she would adopt the same stance. “That had been the practice of nominees before her, but everybody calls it the Ginsburg rule because she stated it so concisely, and it has been the practice of every nominee since,” she said.

Of course, none of this should be a surprise. If you're a good enough lawyer to be considered for nomination to the Supreme Court, you're probably a good enough lawyer to avoid making any major mistakes in front of a committee.

I understand the rationale behind this principle and could understand her judicial “jujitsu” in answering many of the questions. But the transfer of power and protection from intimidation at the polls are two things I thought that should transcend politics since they distinguish a functioning democracy from a totalitarian state.

[Smoove_B]

I understand the rationale behind this principle and could understand her judicial “jujitsu” in answering many of the questions. But the transfer of power and protection from intimidation at the polls are two things I thought that should transcend politics since they distinguish a functioning democracy from a totalitarian state.

Exactly - I don't expect her (or anyone) to give answers on when she believes life begins or whether or not she believes health care is a right. But asking her to confirm her understanding of the Constitution as it relates to voting? Or the tradition of a peaceful transfer of power after an election? Answering those would be considered controversial ?

Again, red flags and alarms should be going off right now.

[malchior]

There is a difference in my mind about principles, morals, and ethics and how they apply to her view on their interactions with the law. There should be a wall between how she'd apply the law in specific scenarios. That's the norm. The transition of power question? That is principles. It is high level. There is never going to be a case where the question to the law is whether there should be a peaceful transition of power. That she either doesn't see that or doesn't care to say that out loud is troubling. I still can't fathom a good reason for her to not answer that question.

[stessier]

WTF. What constitutes a hostile workplace then? Does the guy need to hit him with his car while calling him the N-word?

"You [N-Word]! I want to create a hostile work environment for you by saying the slur that I just said!"

Popehat's take is illuminating.

[Smoove_B]

When softball questions backfire.

Under questioning by Sen. Ben Sasse (R-NE), Amy Coney Barrett is unable to name the five freedoms protected by the First Amendment to the U.S. Constitution.

[Little Raven]

Popehat's take is illuminating.

Wait....people are ill-informed about the minutia of the law and instead leap to conclusions that validate their pre-existing biases?



edit - This is NOT a dig at Defiant...but rather whoever wrote that ABC news story.

[Paingod]

When softball questions backfire.

Hilariously missing "Protest" - one of the most important right now.

[Ralph-Wiggum]

When softball questions backfire.

Under questioning by Sen. Ben Sasse (R-NE), Amy Coney Barrett is unable to name the five freedoms protected by the First Amendment to the U.S. Constitution.

Maybe she should've brought some notes...

[malchior]

FWIW - here is a cut down of Whitehouse's 'X-Files' presentation. It's worth a watch. I think it is a good summation of what is going on. I have one quibble. I disagree with him at about 6:30 where he talks about motivations. I think there is another level up to consider but otherwise I think it is something worth investigation. Maybe in a Democratic Senate?

[$iljanus]

When softball questions backfire.

Under questioning by Sen. Ben Sasse (R-NE), Amy Coney Barrett is unable to name the five freedoms protected by the First Amendment to the U.S. Constitution.

Well Senator, I may have forgotten the fifth freedom but I do know my rights...IN GUITAR!

Number one
You have the right not to be killed
Murder is a crime
Unless it was done
By a policeman
Or an aristocrat
Oh, know your rights

And number two
You have the right to food money
Providing of course
You don't mind a little
Investigation, humiliation
And if you cross your fingers
Rehabilitation

Know your rights
These are your rights
Hey, say, Wang
Oh, know these rights

Number three
You have the right to free speech
As long as
You're not dumb enough to actually try it
Know your rights
These are your rights
Oh, know your rights
These are your rights
All three of 'em

Ha!
It has been suggested in some quarters
That this is not enough
Well
GET OFF THE STREETS!!!

[Isgrimnur]

Salon

Graham, the chair of the Senate Judiciary Committee and a vocal supporter of President Donald Trump, began another day of hearings by defending Barrett's refusal to address a number of critical issues from the previous day.

"One of the reasons you can't tell us how you would rule is because there's active litigation coming to the court," Graham said. "And one of the reasons you can say with confidence that you think Brown v. Board of Education is super-precedent is that you're not aware of any effort to go back to the good old days of segregation by a legislative body. Is that correct?"

"That is correct," Barrett responded. "I've also said in lectures that Brown was correct as an original matter, and that is the kind of thing — since I've said that in writing — that I can say before the committee."
...

[Freyland]

Salon

Graham, the chair of the Senate Judiciary Committee and a vocal supporter of President Donald Trump, began another day of hearings by defending Barrett's refusal to address a number of critical issues from the previous day.

"One of the reasons you can't tell us how you would rule is because there's active litigation coming to the court," Graham said. "And one of the reasons you can say with confidence that you think Brown v. Board of Education is super-precedent is that you're not aware of any effort to go back to the good old days of segregation by a legislative body. Is that correct?"

"That is correct," Barrett responded. "I've also said in lectures that Brown was correct as an original matter, and that is the kind of thing — since I've said that in writing — that I can say before the committee."
...

Could swear we had a jaw-drop emoji.

[El Guapo]

Honestly, that's pretty clearly sarcasm by Graham.

[Little Raven]

Yeah. On the outrage level, this is pretty low.

But I kinda hope Graham's days are numbered regardless.

[Isgrimnur]

There's a time and a place for sarcasm. I would suggest that this is neither.

[El Guapo]

There's a time and a place for sarcasm. I would suggest that this is neither.

Whether that was a *good idea* is a separate question. My point is that I don't think that he was actually arguing that segregation was better.

[Isgrimnur]

This being days after:

I care about everybody. If you’re a young African American, an immigrant, you can go anywhere in the state, you just need to be conservative not liberal

is not a good look.

[El Guapo]

This being days after:

I care about everybody. If you’re a young African American, an immigrant, you can go anywhere in the state, you just need to be conservative not liberal

is not a good look.

Not to become a Lindsey Graham defender, as I'm definitely not fond of the man, but if you read his full remarks he *clearly* was not talking about physical travel in the state, but about advancement in South Carolina government and society. The argument was that you can advance anywhere within South Carolina society regardless of race, but that since South Carolina is a conservative place, you need to be conservative to gain majority support rather than liberal.

Again, the quotes are badly phrased and I 100% get why they're getting repeated that way, but in both of these cases I think what he meant to say is fairly clear.

[Grifman]

WTF. What constitutes a hostile workplace then? Does the guy need to hit him with his car while calling him the N-word?

The guy was already in the process of being fired at the time when that term was used. The person that called him a n***** was black himself. The court was unanimous that discrimination played no role in his firing.

[malchior]

WTF. What constitutes a hostile workplace then? Does the guy need to hit him with his car while calling him the N-word?

The guy was already in the process of being fired at the time when that term was used. The person that called him a n***** was black himself. The court was unanimous that discrimination played no role in his firing.

I have learned the legal distinction since then. I still think despite the circumstances that it is still a pretty hostile environment. I don't care if the guy was black. If you're in a workplace where racial epithets and abuse are being thrown around...that ain't cool. Whether it means he wins the case is a different matter altogether.

[Kurth]

WTF. What constitutes a hostile workplace then? Does the guy need to hit him with his car while calling him the N-word?

The guy was already in the process of being fired at the time when that term was used. The person that called him a n***** was black himself. The court was unanimous that discrimination played no role in his firing.

You and your facts! Next you're going to tell me that McDonalds deserved to get tagged with a $2.9M damages award when some lady spilled a hot cup of coffee on herself.

Spoiler:

Yes. It clearly did.

[NickAragua]

WTF. What constitutes a hostile workplace then? Does the guy need to hit him with his car while calling him the N-word?

The guy was already in the process of being fired at the time when that term was used. The person that called him a n***** was black himself. The court was unanimous that discrimination played no role in his firing.

You and your facts! Next you're going to tell me that McDonalds deserved to get tagged with a $2.9M damages award when some lady spilled a hot cup of coffee on herself.

Spoiler:

Yes. It clearly did.

Off topic, but, lol, just 11k in medical bills.

[Fretmute]

Prediction: 100% of sitting GOP Senators vote "yes" to confirm. They're all in too deep now; better to stay in the good graces of the party than try to game the voting public. Also, F all the GOP Senators. I look forward to seeing them retired.

I’m with you. They’re evil, the world knows they’re evil, and the folks that care about such things are not folks about whom they care.

[Ralph-Wiggum]

I think Collins votes no just because she thinks it'll play better in her election fight and, of course, she knows her vote won't make a difference.

[malchior]

I think Collins votes no just because she thinks it'll play better in her election fight and, of course, she knows her vote won't make a difference.

She'll vote no as long as she is uncertain about her chances. If it breaks either way she is likely a yes. McConnell would probably press her hard if it mattered but like you say...it probably doesn't.

[Isgrimnur]

Politico

Sen. Lindsey Graham on Wednesday clarified that he was being sarcastic when he referred to the “good old days of segregation” and blasted his opponent for seeking to capitalize on the comments.

During a recess in the confirmation hearing for Supreme Court nominee Amy Coney Barrett, Graham (R-S.C.) insisted to reporters that his comments were made in jest and accused Jaime Harrison of launching a disingenuous attack.

“It was with deep sarcasm that I suggested that some legislative body would want to yearn for the good old days of segregationism,” the senator said. “The point that I’m trying to make, there’s nobody in America in the legislative arena wanting to take us back to that dark period in American history and for my opponent to suggest that says far more about him than me.”

“I want to make sure that everybody in my state moves forward,” he told reporters, emphasizing that nearly a third of his constituents are Black. “And in terms of that statement, it blows my mind that any rational person could believe that about me.”
...
Graham cast Harrison’s attack as below the belt, asserting that “this is not a game we’re playing here with the people of South Carolina.” And while he pointed out that “there are plenty of differences between my opponent and myself,” Graham called Harrison’s criticism “not worthy of the times in which we live” and “not worthy of an assault on me.”

He concluded: “I want to assure the people of South Carolina that statement was made with dripping sarcasm."