From Kim Phillips-Fein writing for the New York Times:
Much of the public anxiety about Amy Coney Barrett — judge on the U.S. Court of Appeals for the Seventh Circuit, Notre Dame law professor and Donald Trump’s nominee for the Supreme Court — has focused on the question of abortion, and whether as a believer in originalism and a practicing Catholic she would be likely to vote to reverse Roe v. Wade.
At least as consequential might be her position on the Social Security Administration: She has suggested that an originalist — whose view of the law is rooted in the idea that the duty of judges is to ascertain whether laws reflect the original meaning of the Constitution — might say that it is not clearly permissible given a strict reading of the Constitution. This isn’t to say that she thinks it should or even could be repealed. “Some decisions,” she wrote, “thought inconsistent with the Constitution’s original public meaning are so well baked into government that reversing them would wreak havoc.” But it does indicate that in the area of judicial philosophy, there are many ways to be extreme. ...
Those who share Judge Barrett’s belief in the legal philosophy of originalism are not ideologically monolithic, but most originalist judges are united in a deep skepticism toward the idea of a powerful federal government....
During the 1930s, similar issues brought Franklin D. Roosevelt’s administration into conflict with the Supreme Court. Many of the early initiatives of the New Deal were rejected as unconstitutional ...
After his re-election in 1936, with the Social Security Act and the National Labor Relations Act facing constitutional review and the country mired in economic depression, Roosevelt did not want to see his entire program jeopardized by the court. Instead, in February 1937 he proposed a mandatory retirement age of 70 — the “court-packing” plan, as it became known — with any judge who refused to step down to be supplemented by an additional justice with full voting rights. ...
Will the Supreme Court become once more what it was in the early 20th century? Will it insist on a circumscribed national government and a rigid vision of individual economic rights — in the midst of a second Gilded Age?...
Phillips-Fein isn't the only one thinking that even Social Security could be at risk. Laurence Tribe is saying the same thing.
Do not underestimate the extent to which the right wing still wants to re-litigate the New Deal or how radical the Supreme Court will be with Coney Barrett on the bench.
I think that what worries me the most about Coney Barrett is that she has virtually no experience practicing law. She went from law school to a Supreme Court clerkship to a short time drafting Supreme Court briefs for a law firm to being a law school prof to the Court of Appeals. I don’t think that background should qualify anyone for the Supreme Court. If she had been nominated to a District Court judgeship would she have been considered qualified? Not in my opinion. In fact, I think she would have had enough sense to decline such a nomination.
7 comments:
it's wild how many lawyers don't realize what the law game is really all about or how it works.
the only qualification anyone being appointed to the Supreme Court, Circuit Courts, and probably even District Courts has ever had are political connections, ivy pedigree, and belief by a President/his staff that you'll vote on big issues the way they want.
It's always been politics--they are all political operators--and the veneer of "well that's just my legal philosophy" is the most blatantly transparent lie and it's funny to me how folks living in the profession and privy to more information about it are still duped. It's really funny when the duped are the judges/nominees themselves.
"They are political operators"
They're really not, though. Unlike the Executive and legislators, they're insulated from accountability to the public, save for the limited impeachment power. In theory, that provides a level of independence from majority will that lends it an air of credibility and impartiality, which is necessary for it to serve its purpose (which is, primarily, to provide predictability and fairness so that citizens are less likely resort to violence to resolve their grievances with the government and each other). So what you call just a "veneer" is far from inconsequential. Preserving that appearance is necessary to maintain peacefulness.
And taking a step back, I think the potential for damaging that appearance by making an appointment to the court that, when compared with recent past experience, looks unfair, is a big concern on lots of people's mind. I have no doubt the Chief Justice is more than a little anxious about it.
I went through Google Scholar to try to see how she handled Social Security cases in the Circuit. I did not see any cases where she signed an opinion as most of the cases were unsigned anyway. There were a 7 Remands and 15 Affirmations. That's better than other Circuits, like the Third that almost never Remands, but not sure how it stacks up to other Seventh Circuit Judges.
Dear Lord, you have lost your mind. I suppose since Kagan had never even served as a judge that was ok with you since she was a liberal who would legislate from the bench.
@1:50 PM
The Supreme Court does not "legislate from the bench." Congress and the President legislate. The Supreme Court does its best to interpret the Constitution and legislative acts passed by them. The differences lie in how they approach that job. Some, like Ginsburg, for example, approach the job in a manner that facilitates progress and pragmatic adaptation to changing circumstances. Others, like Scalia, for example, approach the job in a manner that tends to inhibit progress and adaptivity.
Neither approach is clearly right or wrong, and whether folks like the consequences tends to depend entirely on whether they like the outcome, as opposed to any real underlying convictions about originalism vs. pragmatism.
Unfortunately, it is a foregone conclusion that the Senate is going to confirm her. Romney might have helped derail it, but in the end showed he is no more deserving of his position than is the great orange turd. The other Republicans who have "expressed doubts" will also fall in line just like they always do.
And when they do confirm her, the Democrats are going to end up foaming at the mouth insane over it. It is going to escalate the divide between Republicans and Democrats even more since we have no true statesmen anymore who have any concept of sacrificing political idolatry for the good of the country.
If the Democrats sweep the Presidency and the Senate, I guarantee you the first move they make will be to expand the Supreme Court, probably to 13 or 15 justices (all of whom they will confirm). And, if they are really smart when they do it, they will put a trigger in the enabling expansion legislation requiring a supermajority vote of both houses of Congress to make future changes to the configuration of the Court to ensure that it can't easily be undone anytime soon.
Then, the Republicans will take their turn foaming at the mouth over this and just find a way to make everything even worse.
I truly fear for the future of our country. I used to think it might last another couple of generations; however, I am sorry to say I fear it won't last for another 25 years.
BTW, this is post is coming from a conservative (albeit one who, unlike McConnell and his ilk, has retained a semblance of sanity). Despite what the great orange turd and people like Limbaugh or Hannity would have you believe, there are still a few of us still around.
Of course they are coming for Social Security in this manner. The program is wildly popular with the American people, the billionaire oligarchs hate it, and the politicians can't find the balls to attack it directly. The republican pols keep secretly telling their big donor meetings they favor closed star chamber proceedings to attack it. Lukewarm democrats sometimes want to punt to "blue ribbon" "bipartisan" commissions. If the reactionary old men and token woman can do it they will all have cover and say their hands are tied. Damn straight they are coming for everything their dark money backers tell them to come for. American people better wake the hell up and stop the "you had me at Mexican rapist" idiotic worship of crack head politicians that want to sell down the river. When they start offering up the racism, hatred and paramilitary militias that means they have nothing left to offer.
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