The new Handmaid Supreme Court Justice and "the autocracy trainee program"

Dahlia Litwick describes how the Republicans' capture of the federal judiciary with highly partisan, rightwing ideological, often techically unqualified judges is a major plank in the Republican Party's oligarchical plan for minority rule (my characterization, not hers): This Is What It Feels Like to Live Under Minority Rule Slate 10/26/2020.

She has a good take on the now-common tactic of judicial nominees to refuse to answer questions about almost anything substantive during confirmation hearings, which The Handmaid Amy Coney Barrett practiced rigidly:

The refusal to answer even the simplest yes/no questions about what black letter law means, and who it binds, has the effect - intentional or not - of unsettling what was once widely accepted and understood. It’s the judicial equivalent of “flooding the zone with shit“ and the result is the same when it’s done in law as it is when it’s done in media - it renders all that was known to be certain as indeterminate and up for grabs. It puts us all at the mercy of powerful deciders and consolidates the power to decide those newly open questions in an authority figure. It recalibrates both truth and power as emanating from someone else. [my emphasis]

Lithwick notes that for all the mealy-mouthed talk about the bogus "originalist" theory, Coney Barrett's position comes down to, "she has taken the position that what judges believe matters more than precedent anyhow."

She places the legal part of this project in the larger political goals of today's Republican Party.

Even though she didn’t answer any of her questions, we know who Barrett is and what she will do on the court. She is exactly who she has always been, who she was seated to become, and if you are worried for your children, for the planet, for the future of anti-racism and LGBTQ rights and voting rights, your worry is not misplaced. Barring court reform, the coming years will be marked by attacks on government agencies, court-endorsed rollbacks of progressive gains, and a steady series of wins for business, oligarchs, and inequality. It will come dressed as neutral “originalism,” but it will be neither neutral nor originalist. And as Adam Serwer brilliantly details, this is not simply a conservative project; it is a project to beat back changing demographics and to suppress the power of the majority. The whatever [attitude] that powerlessness engenders is a feature, not a bug, of the conservative legal movement’s efforts to tell majorities that they are of no moment. [my emphasis]

Here's another of her characterizations of this larger project: "Your very powerlessness is the point. The cruelty is the fringe benefit. ... You’re now in the autocracy trainee program."

Why Constitutional "originalism" is a bogus rightwing ideology

Historian Heather Cox Richardson, who has thrown herself this year into the role of public intellectual and insightful critic of Trumpism and the assumptions of white supremacy, teamed up with Maine Sen. Angus King, Jr., to take on the rightwing legal doctrine of "originalism," Amy Coney Barrett’s Judicial Philosophy Doesn’t Hold Up to Scrutiny The Atlantic 10/25/2020. They open with a good summary of the basic flaw in the idea "originalism," that when the text of the Constitution isn't crystal clear on an issue, judges should look to what the Framers had in mind when they produced the original text:

In some cases, interpreting the Constitution with an originalist lens is pretty easy; for example, the Constitution says that the president must be at least 35 years old (“35” means, well, 35), that each state has two senators (not three and not one), and that Congress is authorized to establish and support an Army and a Navy. But wait a minute. What about the Air Force? Is it mentioned in the text? Nope. Is there any ambiguity in the text? Again, no. It doesn’t say “armed forces”; it explicitly says “Army” and “Navy.” Did the Framers have in mind the Air Force 115 years before the Wright brothers? Not likely.

So is the Air Force unconstitutional, even though it clearly fails both prongs of the “originalist” test? No, a more reasonable and obvious interpretation is that the Framers intended that the country be protected and that the Air Force is a logical extension of that concept, even though it wasn’t contemplated in 1787. This isn’t judicial lawmaking; it’s judges doing what they’re hired to do.

And they give a summary of what the real game of "originalism" is:

Originalism is an intellectual cloak drummed up (somewhat recently) to dignify a profoundly retrogressive view of the Constitution as a straitjacket on the ability of the federal government to act on behalf of the public. Its real purpose is to justify a return to the legal environment of the early 1930s, when the Court routinely struck down essential elements of the New Deal. Business regulation, Social Security, and Medicare? Not so fast. The Affordable Care Act, environmental protections, a woman’s right to choose? Forget it. And this despite the Constitution’s preamble, which states that one of its basic purposes is to “promote the general welfare.”

The Atlantic is publishing a series of articles in conjunction with the National Constitution Center that they label The Battle for the Constitution, of which the Cox-King piece is one.

Amy Coney Barrett and the twilight (?) of American democracy

Writing about American politics right now seems a bit like writing on of those obituaries news organizations keep in the can on prominent people.

Only the subject in this case is American democracy. Because as Bernie Sanders said in a speech this past week, "This is not just an election between Donald Trump and Joe Biden. This is an election between Donald Trump and democracy." Sen. Sanders on Trump's 'threat to our democracy' PBS Newshour 09/24/2020:

But my favorite bellwether for mainstream Beltway Village commentary, the Mark Shields and Bobo Brooks weekly gab fest, provides a picture that fits into the mood of mourning, and of dread that liberal democracy is the US is on the verge of a sad turning point, Shields and Brooks on Ginsburg’s legacy, Trump’s election rhetoric PBS Newshour 09/25/2020:

Short version of the discussion on Trump's new Supreme Court nominee, rightwing Catholic/Pentecostal theocrat Amy Coney Barrett:

Bobo (verbally finger wagging): It would be very, very naughty For Democrats to challenge Bennett's qualification to be a Supreme Court Justice in any way.

Shields: David's absolutely right. Nothing could be worse than for the Democrats to fight for their own side in this confrontation, which the Democrats shouldn't treat as a confrontation at all.

More literally:

Bobo:

Amy Coney Barrett also has values. She's a conservative. She is well-regarded. When she was Supreme Court clerk to Antonin Scalia, all of the clerks, regardless of party affiliation, admired her. When she was on the Notre Dame Law faculty, all of the faculty members, regardless of party ideology, admired her, that, personally, she seems — I have never met her.

She seems reputed to be a wonderful person. But she has a conservative record. She was a law professor for a long time and wrote a lot of articles, some of which were controversial and, in her 2017 confirmation hearings, were brought up.

I think it'll be hard to mount personal attacks, given what we know now. But there will be some conservative attacks. [Presumably meaning attacks on her conservatism]

Shields:

She — you could say, if you're a conservative, she's probably not going to be John Roberts. She is a true-blue and committed conservative.

But I would point out, as David laid out sort of the political land mines for Democrats, she has admirable personal credentials, the mother of seven, two adopted children. She brought a Down syndrome pregnancy to birth, a child, is raising it, and was endorsed by both, not only the conservative members of the law faculty at Notre Dame, but all the liberals as well.

I think it's a potential land mine for both sides. To the degree that abortion becomes the centerpiece issue, it's going to be a problem for Republicans among suburban women. To the degree that it becomes an issue and the Democrats go on the offensive against Amy Coney Barrett, then Joe Biden's hopes of reaching out across to blue-collar white voters who had flirted with Trump in the past, maybe former Democrats, becomes a problem.

And I think if, in fact, there is any sort of a mean personal attack mounted against her, it will only — it will only hurt the Democrats.

You get the drift.

Both cheerfully ignored the immediate effect of her approval for the Court could mean for Trump's brazenly advertised intentions to steal the election to stay in power. Shields did conclude the segment with a sadly expressed hope "that there is some beat [sic] of a soul still left in the party of Abraham Lincoln."

Why he may think such a hope is realistic in any way, he didn't say.

But appointing another far-right hack to the Supreme Court actually is a very big deal, especially at this possibly very late date in the history of American democracy as we've know it.

Michael O’Loughlin writing for the Jesuit America gives a carefully Mugmump description of the male-supremacist, theocratic "ecumenical" group with which Barrett is closely associated, Explainer: Amy Coney Barrett’s relationship with People of Praise 09/24/2020.

See also:

• Stephanie Mencimer, It’s Not Anti-Catholic to Ask Amy Coney Barrett About Her Religious Group “People of Praise” Mother Jones 09/24/2020
• Karen Robinson-Jacobs, Here’s What To Know About People Of Praise, The Christian Group Amy Coney Barrett Belongs To Forbes 09/26/2020
• Stephanie Kirchgaessner, Amy Coney Barrett: spotlight falls on secretive Catholic group People of Praise Guardian 09/26/2020
• Chrissy Stroop, Why the Media and Democrats Should Reject the Christian Rights's Pearl-Clutching and Address Problematic Religious Views Religion Dispatches 09/25/2020:

No one is raising objections to the possible nomination of Barrett for a SCOTUS seat on the basis of her being a Christian. If anyone actually contended that Christian faith is disqualifying, that would leave very few eligible appointees to any position in a majority Christian nation. But to effectively push back on the flood of gaslighting currently being unleashed by the Christian Right, we need to flip the script.

Lord knows (if you’ll pardon the expression), the Democratic Party is far from godless. But, while God talk in the party may sometimes annoy non-religious Democrats, no serious liberal argues that adherence to a religion itself is disqualifying for public office, which would be to advocate for an unconstitutional position. The difference is this: in the vast majority of cases, Democrats of faith understand their religious commitments as compatible with an approach to pluralism that provides robust equality for all in the public square. Right-wing Christians, on the other hand, espouse an anti-pluralist understanding of their faith, using and abusing the rhetoric of “religious freedom” to demand the right to be, as it were, “more equal than others.”

[Updated to correct misspelling of Amy Coney Barrett's name]

Amy Coney Barrett may be a theocrat, but hey, she ain't supportin' Shuhreeuh law, now is she?

These two articles speak volumes about how discombobulated they are about having a far-right Christian theocrat as a Supreme Court Justice:

• Jack Jenkins, Amy Coney Barrett, controversial Catholic, re-emerges as potential Supreme Court pick 09/22/2020 RNS/National Catholic Reporter 09/22/2020
• Manu Raju, Democrats weigh how to handle Trump's potential Supreme Court pick after past flap over Barrett's faith CNN 09/23/2020

If Manuz Raju's CNN report is correct, then the discussion among Senate Democrats about how to fight Trump's authoritarian, anti-women's-right, Christian supremacist nominee for the Supreme Court - whoever that may turn out to be - is going something like this:

"We need to surrender when the hearing on the nominee starts."

"No, we need to surrender as soon as the nomination is announced."

"No, that's just unacceptable! We need to surrender right now and brag about how responsible we're being about all this!

"Absolutely not!! We have to surrender immediately, pledge to support whatever person or inanimate object Trump nominates even before the announcement, a pass a censure resolution ín the Senate against any Democratic Senator who refuses to do so!"

The Beltway assumption right now seems to be that the nominee will be Amy Coney Barrett. The Democrats are trembling in fear that the Republicans might accuse them of questioning her (rightwing Catholic) religion. As Raju reports:

In a tense exchange between Amy Coney Barrett and Sen. Dianne Feinstein in 2017, the California Democrat sharply questioned whether the judicial nominee could separate her Catholic views from her legal opinions.

"The conclusion one draws is that the dogma lives loudly within you," Feinstein pointedly said. "And that's of concern when you come to big issues that large numbers of people have fought for years in this country."

The exchange became a rallying cry for Republicans -- and quickly put Democrats on the defensive as the GOP accused them of creating a religious litmus test for President Donald Trump's nominee to sit on the 7th US Circuit Court of Appeals. Democrats said the exchange was in reference to Barrett's own writings on the topic that had prompted questions from both parties -- and concerns from progressives that she would chip away at abortion rights.

Now Barrett appears to be the front-runner for Trump's Supreme Court nominee. And Democrats are beginning to discuss how to avoid such pitfalls when they face off against the President's nominee in confirmation hearings as soon as next month, recognizing that's likely their lone shot at derailing a conservative jurist who could tilt the ideological balance of the court for decades to come.

"I never really focused on religious beliefs. They are really, in my view, irrelevant to her qualification," Sen. Richard Blumenthal, a Connecticut Democrat who's a member of the Senate Judiciary Committee, said Tuesday. "Everybody's entitled to believe or practice and worship as they like. My focus is on substantive issues."

Anyone remotely familiar with the Republicans' stand on Islamic Sharia religious law - which I'd be surprised if there are five Republicans in either House of Congress who could give a reasonable accurate description of what that is - will be surprised to hear that Republicans are indifferent to the religious views of office-holders. Liz Farmer reported in 2014 (Alabama Joins Wave of States Banning Foreign Laws Governing 11/04/ 2014):

Alabama has become the seventh state to ban Sharia law via a ballot measure that prohibits its courts from considering foreign, international or religious law. ...

Six states have similar foreign law bans, with North Carolina's enacted most recently last year. The others are Arizona, Kansas, Louisiana, South Dakota and Tennessee. Missouri also passed a measure banning foreign law last year, but Gov. Jay Nixon vetoed the bill because of its potential impact on international adoptions. Oklahoma's voters approved a ban, which explicitly referred to Sharia law, in 2010. But this year, it was struck down by a federal appeals court for being discriminatory. Still, the issue has permeated across the country: All but 16 states have considered such a measure in the past five years. ...

Opponents to such bans say they are based on stereotypes and a fundamental misunderstanding about Islam. In 2013, a Brennan Center for Justice report called the bans anti-Muslim and cast them as “thinly concealed attempts” to demoralize the faith. The report warned that the bans can have unintended consequences like disrupting marital prenuptial agreements or invalidating court decisions in other states. Especially in divorce and contract law, religious beliefs (like Sharia, orthodox Jewish or Catholic canon) can factor into how judges or arbitrators preside over a dispute. For example, a couple may sign a prenuptial agreement that requires them to go to an imam and that a religious leader must conduct the mediation. Alabama’s ballot measure nullifies that requirement. [my emphasis]

But freedom of religion and the separation of church and state are fundamental Constitutional principles. Whether a Supreme Court Justice accepts that as valid is an extremely relevant question. John Kennedy's statement that basically laid to rest Protestant attacks on his "papism," i.e., being a Catholic Christian, is considered a classic retort to that kind of criticism. Though the statement itself deserves wider attention than any Republican will give it in 2020 (Transcript: JFK's Speech on His Religion NPR 12/05/2007):

I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference; and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.

I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials; and where religious liberty is so indivisible that an act against one church is treated as an act against all. ...

It was Virginia's harassment of Baptist preachers, for example, that helped lead to Jefferson's statute of religious freedom. Today I may be the victim, but tomorrow it may be you — until the whole fabric of our harmonious society is ripped at a time of great national peril. ...

Whatever issue may come before me as president — on birth control, divorce, censorship, gambling or any other subject — I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise.

But if the time should ever come — and I do not concede any conflict to be even remotely possible — when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same. [my emphasis]

Would Amy Coney Barret commit to any such clear statement of her stand on religious freedom? Would any Republican currently serving in Congress?

As it turns out, the religion-related issue that nominal Democrat Dianne Feinstein challenged Barrett on in 2017 was a classic instance of a conservative Democrat being too clever by half and flubbing the whole thing. Jack Jenkins explains:

During her 2017 confirmation hearing to serve on the 7th Circuit Court, some pointed to a 1998 law-review article Barrett co-wrote with John Garvey, then her Notre Dame professor and now president of the Catholic University of America. The two argued that "Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty."

This approach potentially challenges a mindset invoked by some Catholic politicians regarding intersections of faith and public policy — namely, that one's personal faith should not, whenever possible, preclude one from performing a duty that stands to impact the general public. During Barrett's confirmation hearing, California Senator Dianne Feinstein zeroed in on her "previous speeches," insisting that religious dogma is not the same thing as law.

"The dogma lives loudly within you," Feinstein said to Barrett.

In response, Barrett told Feinstein, "It's never appropriate for a judge to impose that judge's personal convictions, whether they arise from faith or anywhere else, on the law."

Nonetheless, similar critiques will no doubt be leveled at Barrett should she face the judicial committee again immediately preceding or after the presidential election.

For Feinstein, that gave her a way to raise an issue about Barrett's judicial philosophy around a statement that suggested she would not support the death penalty. Do that let Feinstein make Barrett sound "soft" on the death penalty. Feinstein's "The dogma lives loudly within you," though, will not go down as one of the most historic Senatorial statements. And, now, from what CNN reported, Democratic Senators are thinking that any mention of church-state issues in connection with Barrett is now politically toxic.

Then there's this (Laurie Goodstein, Some Worry About Judicial Nominee’s Ties to a Religious Group New York Times 09/28/2020):

Ms. Barrett told the senators [in the 2017 hearing] that she was a faithful Catholic, and that her religious beliefs would not affect her decisions as an appellate judge. But her membership in a small, tightly knit Christian group called People of Praise never came up at the hearing, and might have led to even more intense questioning. [my emphasis]

Of course not. Diane Feinstein was too busy bungling a (legitimate) question relating to the death penalty. Goodstein continues:

Some of the group’s practices would surprise many faithful Catholics. Members of the group swear a lifelong oath of loyalty, called a covenant, to one another, and are assigned and are accountable to a personal adviser, called a “head” for men and a “handmaid” for women. The group teaches that husbands are the heads of their wives and should take authority over the family.

Current and former members say that the heads and handmaids give direction on important decisions, including whom to date or marry, where to live, whether to take a job or buy a home, and how to raise children.

Legal scholars said that such loyalty oaths could raise legitimate questions about a judicial nominee’s independence and impartiality. The scholars said in interviews that while there certainly was no religious test for office, it would have been relevant for the senators to examine what it means for a judicial nominee to make an oath to a group that could wield significant authority over its members’ lives. [my emphasis]

If Barrett becomes Trump's Supreme Court nominee, it would be unusual malpractice even by current Democratic Party standards for them not to make a big deal out of this.

See also:

Senate Judiciary Committee Hearing on Amy Coney Barrett (2017)

Michael Sean Winters, Raising questions about Amy Barrett's beliefs is not an anti-popery riot National Catholic Reporter 07/06/2018

Heidi Schlumpf, Prospective Supreme Court nominee puts spotlight on People of Praise National Catholic Reporter 07/06/2018

Amy Howe, Potential nominee profile: Amy Coney Barrett, SCOTUSblog 07/04/2018

Ruth Graham, Amy Coney Barrett Is Allegedly a Member of a Religious Group That’s Been Called a “Cult” Slate 07/03/2018

Cathleen Kaveny, No, Dianne Feinstein is not an anti-Catholic bigot Washington Post 09/21/2017