thenation--2020-10-14--Can Trump Delay the Election? Amy Coney Barrett’s a Big Maybe on That One

Suppose Donald Trump announced prior to November 3 that the election had been “ corrupted ” by illicit mail voting and would need to be delayed—or that the counting of ballots cast in the election would need to be interrupted .
A crazy notion ?
No , he ’ s already signaled his interest in this option .
On June 30 , Trump tweeted , “ With Universal Mail-In Voting ( not Absentee Voting , which is good ) , 2020 will be the most INACCURATE & FRAUDULENT Election in history .
It will be a great embarrassment to the @ @ @ @ @ @ @ can properly , securely and safely vote ?
?
?
” Trump was , of course , lying—a lot .
First , the 2020 election is not being conducted under a ubiquitous “ Universal Mail-In Voting ” model ; tens of millions of Americans in states across the country are casting traditional absentee ballots or voting early , and tens of millions more will vote in person on Election Day .
Second , there is no evidence that mail-in voting increases voter fraud ; in fact , there is ample evidence from states @ @ @ @ @ @ @ approach provides a secure method for achieving high turnouts and honest counts .
When Trump peddles these lies , he seeks to undermine the democratic process by fostering false impressions of an election that polls suggest he is likely to lose .
But if Trump calls a delay , he won ’ t merely be lying or playing a political card .
The president will be violating the law .
The Code of Laws of the United States of America clearly states : “ The electors of President and Vice President shall be @ @ @ @ @ @ @ the Tuesday next after the first Monday in November , in every fourth year succeeding every election of a President and Vice President.
” The same code establishes that elections for the US House of Representatives and the US Senate must be held on that day .
These are not debatable legal points .
Nor is the fact the election is held at the start of November in order to meet the calendar requirements of the US Constitution , which stipulates that “ the terms of the President and the Vice President shall @ @ @ @ @ @ @ of January , and the terms of Senators and Representatives at noon on the 3d day of January , of the years in which such terms would have ended if this article had not been ratified ; and the terms of their successors shall then begin.
” The US Code and the Constitution are not untested legal “ theories ” up for interpretation by wannabe judicial activists .
They are the fundamental underpinnings of the rule of law .
Agreeing that the election date is “ set in stone , ” Senate majority @ @ @ @ @ @ @ responded to Trump ’ s June tweet by saying , “ Never in the history of the country , through wars and depressions and the Civil War , have we ever not had a federally scheduled election on time , and we ’ ll find a way to do that again this November 3.
” The election can ’ t be delayed .
Everyone who claims to have regard for the American experiment—Democrats and Republicans , liberals , and conservatives—recognizes this .
Everyone , that is , except Judge Amy Coney Barrett .
@ @ @ @ @ @ @ .
If Senate Republicans continue to do Trump ’ s bidding , Barrett could be planted on the US Supreme Court before November 3 .
During Tuesday ’ s session of the Senate Judiciary Committee ’ s high-speed hearing on Barrett ’ s nomination , Senator Dianne Feinstein , the ranking Democrat on the committee , asked the nominee whether “ the Constitution gives the president of the United States the authority to unilaterally delay an election under any circumstances.
” The proper response would have been a simple “ no , neither @ @ @ @ @ @ @ nor the law of land , can be read as affording him that authority.
” Instead , Barrett headed off into the great unknown : Well , Senator , if that question ever came before me , I ’ d need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion-writing process .
So , you know , if I give off the cuff answers , then I would be basically a legal pundit , and I don @ @ @ @ @ @ @ be legal pundits .
I think we want judges to approach cases thoughtfully and with an open mind .
That was such a shocking answer that , on Wednesday , Senator Dick Durbin of Illinois , read the transcript back to Barrett and gave her an opportunity to clarify her remarks .
He led her through a line of questioning that referenced the 14th and 15th amendments to the Constitution—which guarantee equal protection under the law and bar the denial or abridgment of the right to vote “ on account of race , @ @ @ @ @ @ @ ” Barrett accepted that “ the Constitution contains provisions that prohibit discrimination on the basis of race and voting.
” But when Durbin pressed her on the issue of denying voting rights by delaying an election , Barrett stuck to her line : “ I really can ’ t say anything more than I ’ m not gon na answer hypotheticals.
” That was an artful answer meant to cloak her scorching intellectual dishonesty .
Senator Feinstein was not asking Barrett to speak as “ a legal pundit.
” Senator Durbin was not @ @ @ @ @ @ @ They were trying to determine whether she recognizes the law as written , and if she is willing to apply it .
That ’ s the baseline standard that should be expected before confirming anyone to serve as a jurist—on any bench , in any court , at any level from municipal judge to Supreme Court justice .
If Barrett does not know the law , that ’ s disqualifying .
If she knows the law but is unwilling to apply it because of her loyalty to her political benefactor , D0nald Trump @ @ @ @ @ @ @ As on so many issues that have been raised during this breakneck confirmation process , it is not the Democrats on the Judiciary Committee who are making the most compelling case for the rejection of Trump ’ s nominee .
It is Amy Coney Barrett .

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Suppose Donald Trump announced prior to November 3 that the election had been “corrupted” by illicit mail voting and would need to be delayed—or that the counting of ballots cast in the election would need to be interrupted.
A crazy notion? No, he’s already signaled his interest in this option. On June 30, Trump tweeted, “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???” Want more from John? Check out the first-ever Nation Festival featuring John Nichols alongside an extraordinary group of speakers. Nov. 18-21.
Trump was, of course, lying—a lot. First, the 2020 election is not being conducted under a ubiquitous “Universal Mail-In Voting” model; tens of millions of Americans in states across the country are casting traditional absentee ballots or voting early, and tens of millions more will vote in person on Election Day. Second, there is no evidence that mail-in voting increases voter fraud; in fact, there is ample evidence from states such as Oregon and Washington that this approach provides a secure method for achieving high turnouts and honest counts. When Trump peddles these lies, he seeks to undermine the democratic process by fostering false impressions of an election that polls suggest he is likely to lose.
But if Trump calls a delay, he won’t merely be lying or playing a political card. The president will be violating the law.
The Code of Laws of the United States of America clearly states: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” The same code establishes that elections for the US House of Representatives and the US Senate must be held on that day.
These are not debatable legal points. Nor is the fact the election is held at the start of November in order to meet the calendar requirements of the US Constitution, which stipulates that “the terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.” Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin How the “Brooks Brothers Riot” Set the Stage for Insurrection How the “Brooks Brothers Riot” Set the Stage for Insurrection Chris Lehmann Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin How the “Brooks Brothers Riot” Set the Stage for Insurrection How the “Brooks Brothers Riot” Set the Stage for Insurrection Chris Lehmann
The US Code and the Constitution are not untested legal “theories” up for interpretation by wannabe judicial activists. They are the fundamental underpinnings of the rule of law. Agreeing that the election date is “set in stone,” Senate majority leader Mitch McConnell, R–Court Packing, responded to Trump’s June tweet by saying, “Never in the history of the country, through wars and depressions and the Civil War, have we ever not had a federally scheduled election on time, and we’ll find a way to do that again this November 3.” Current Issue View our current issue
The election can’t be delayed. Everyone who claims to have regard for the American experiment—Democrats and Republicans, liberals, and conservatives—recognizes this.
Everyone, that is, except Judge Amy Coney Barrett. Unfortunately, she is a consequential exception. If Senate Republicans continue to do Trump’s bidding, Barrett could be planted on the US Supreme Court before November 3.
During Tuesday’s session of the Senate Judiciary Committee’s high-speed hearing on Barrett’s nomination, Senator Dianne Feinstein, the ranking Democrat on the committee, asked the nominee whether “the Constitution gives the president of the United States the authority to unilaterally delay an election under any circumstances.”
The proper response would have been a simple “no, neither the Constitution of the United States, nor the law of land, can be read as affording him that authority.”
Instead, Barrett headed off into the great unknown:
Well, Senator, if that question ever came before me, I’d need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion-writing process. So, you know, if I give off the cuff answers, then I would be basically a legal pundit, and I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind.
That was such a shocking answer that, on Wednesday, Senator Dick Durbin of Illinois, read the transcript back to Barrett and gave her an opportunity to clarify her remarks. He led her through a line of questioning that referenced the 14th and 15th amendments to the Constitution—which guarantee equal protection under the law and bar the denial or abridgment of the right to vote “on account of race, color, or previous condition of servitude.” Barrett accepted that “the Constitution contains provisions that prohibit discrimination on the basis of race and voting.” But when Durbin pressed her on the issue of denying voting rights by delaying an election, Barrett stuck to her line: “I really can’t say anything more than I’m not gonna answer hypotheticals.”
That was an artful answer meant to cloak her scorching intellectual dishonesty.
Senator Feinstein was not asking Barrett to speak as “a legal pundit.” Senator Durbin was not asking Barrett to engage in hypotheticals.
They were trying to determine whether she recognizes the law as written, and if she is willing to apply it.
That’s the baseline standard that should be expected before confirming anyone to serve as a jurist—on any bench, in any court, at any level from municipal judge to Supreme Court justice.
If Barrett does not know the law, that’s disqualifying.
If she knows the law but is unwilling to apply it because of her loyalty to her political benefactor, Donald Trump, that is even more disqualifying.
As on so many issues that have been raised during this breakneck confirmation process, it is not the Democrats on the Judiciary Committee who are making the most compelling case for the rejection of Trump’s nominee. It is Amy Coney Barrett.


thenation--2020-10-14--Journalists Must Demystify the Green New Deal

This article is adapted from “ The Climate Beat , ” the weekly newsletter of Covering Climate Now , a global journalism initiative strengthening coverage of the climate story .
In the first presidential debate , in September , Donald Trump was eager to attack his opponent ’ s $ 2 trillion plan to address the climate crisis .
“ He ’ s talking about a Green New Deal , ” the president said , talking over Joe Biden .
In the vice presidential debate , Mike Pence likewise assailed the Green New Deal , invoking the term 11 times @ @ @ @ @ @ @ crush American jobs.
” While the Biden climate plan is indeed informed by Green New Deal principles—Biden calls it a “ crucial framework ” —its goals and methods are narrower in scope .
Biden and his running mate , Kamala Harris , have stated repeatedly that they do not support a Green New Deal .
Nevertheless , Republicans ’ efforts to demonize Biden ’ s climate plan as a Green New Deal inadvertently highlight how superficially many mainstream news outlets have covered that foundational proposal to date .
Except for Fox News , @ @ @ @ @ @ @ trashing the idea with wildly inaccurate claims , most news outlets have covered the Green New Deal solely in horse-race terms and uncritically internalized Republicans ’ negative framing of the idea .
Some post-debate commentary , for instance , focused on whether Trump and Pence ’ s attacks on a Green New Deal could cost Biden votes in the battleground state of Pennsylvania .
Meanwhile , the public has been left largely in the dark about the basic , underlying questions of what a Green New Deal actually is and what it would @ @ @ @ @ @ @ the Industry Ties That Prevent Change ?
More in this series No matter which candidate wins the US presidential election , the Green New Deal is likely to remain central to debates about climate policy .
If Trump wins , the climate movement and other opponents of his policies will continue to press for a Green New Deal in Congress and across the United States .
If Biden wins , the Green New Deal will be the standard by which progressives in his party judge the new president ’ s approach .
It @ @ @ @ @ @ @ to spell out what a Green New Deal is and is not , how the various versions of it would work in practice—including the closely related Biden plan—and , above all , what it would mean to people ’ s daily lives .
In a word , journalists must demystify the Green New Deal .
The public and policy-makers alike need a foundation of accurate information and fact-based analysis before they can intelligently decide whether to support this response to the climate problem , not to mention the ongoing economic contraction driven by @ @ @ @ @ @ @ have succeeded in making the words “ Green New Deal ” political poison is dubious .
Polls show the general idea is actually quite popular with Americans , and more than 70 percent of Americans reject the notion that strong climate policy will hurt the economy .
What seems most accurate is , as one poll by The Washington Post and the Kaiser Family Foundation found last year , that many Americans simply don ’ t know enough about the Green New Deal to form an opinion one way or another .
In @ @ @ @ @ @ @ helped .
More than three in four Americans in the Post poll said they had heard “ little or nothing ” about the Green New Deal .
Multiple studies from the research organization Media Matters for America have found that the Green New Deal is mentioned frequently on Fox News , typically in mocking terms , but almost never on CNN , MSNBC , and the major networks .
Even if the Biden plan is not exactly the Green New Deal , the latter is here to stay as a political idea , @ @ @ @ @ @ @ .
Versions of a Green New Deal have now been advocated by governments in Europe and Asia , as well as by various state and local governments in the US .
And some congressional candidates have made a Green New Deal central to their appeal to voters .
A new campaign ad for Mike Siegel , a Democrat in Texas ’ s 10th district , features a gravel-voiced worker saying that he and his fellow union members want Siegel “ to bring our vision of a Green New Deal to Congress.
” To @ @ @ @ @ @ @ to combat the climate crisis by creating an abundance of green jobs and business opportunities through targeted government investments .
In that sense , it resembles the original New Deal of the 1930s , which combated massive unemployment creating jobs through government spending .
Today ’ s Green New Deal , as outlined in the congressional resolution cosponsored by Representative Alexandria Ocasio-Cortez and Senator Ed Markey in early 2019 , is more an ambitious statement of goals than an assemblage of fine-tuned policy proposals .
It envisions a broad mobilization of government resources @ @ @ @ @ @ @ business opportunities , to curb greenhouse gas emissions while building up renewable energy and green infrastructure .
The differences between Biden ’ s plan and the Green New Deal are important and deserve attention from reporters .
It ’ s worth remembering that Biden ’ s plan emerged from negotiations between members of his campaign and progressives in the Bernie Sanders camp , following Biden ’ s victory in the primaries .
The core of the Biden plan is its pledge to decarbonize America ’ s electricity sector by 2035 .
Borrowing from @ @ @ @ @ @ @ also stipulates that 40 percent of federal climate spending will occur in communities of people of color and the poor , who historically have endured the most damage from fossil fuel pollution .
The Biden plan leaves out some of the Sanders camp ’ s other social-equity goals—on health care and housing , for example—but the focus on the economy remains central .
“ We can get to net zero , in terms of energy production , by 2035…creating millions of good-paying jobs , ” Biden said during the debate .
Meanwhile , @ @ @ @ @ @ @ amounts of temperature rise demands rapid , far-reaching decarbonization of the world ’ s economies .
Emissions must be cut in half by 2030 to limit temperature rise to 1.5 degrees C , the scientists of the UN ’ s Intergovernmental Panel on Climate Change said in 2018 in their landmark Global Warming of 1.5 C report .
Achieving this goal will require transforming economies at a pace “ unprecedented ” in human history , the scientists said .
This moment—arguably America ’ s last to get the climate issue right—demands that the @ @ @ @ @ @ @ explaining these scientific and economic realities to their audiences .
Trump , according to his own words and actions , has no plan on climate .
Biden does have a plan , one that is informed by , but ultimately different from , the Green New Deal .
Rather than contributing to an environment in which the words “ Green New Deal ” are treated as a political liability , good journalism should assess both candidates ’ plans on their merits and inform the public accordingly .
That means also finally telling audiences @ @ @ @ @ @ @ .

This article is adapted from “The Climate Beat,” the weekly newsletter of Covering Climate Now, a global journalism initiative strengthening coverage of the climate story.
In the first presidential debate, in September, Donald Trump was eager to attack his opponent’s $2 trillion plan to address the climate crisis. “He’s talking about a Green New Deal,” the president said, talking over Joe Biden. In the vice presidential debate, Mike Pence likewise assailed the Green New Deal, invoking the term 11 times as a threat that “literally would crush American jobs.”
While the Biden climate plan is indeed informed by Green New Deal principles—Biden calls it a “crucial framework”—its goals and methods are narrower in scope. Biden and his running mate, Kamala Harris, have stated repeatedly that they do not support a Green New Deal.
Nevertheless, Republicans’ efforts to demonize Biden’s climate plan as a Green New Deal inadvertently highlight how superficially many mainstream news outlets have covered that foundational proposal to date. Except for Fox News, which has devoted lots of airtime to trashing the idea with wildly inaccurate claims, most news outlets have covered the Green New Deal solely in horse-race terms and uncritically internalized Republicans’ negative framing of the idea. Some post-debate commentary, for instance, focused on whether Trump and Pence’s attacks on a Green New Deal could cost Biden votes in the battleground state of Pennsylvania. Meanwhile, the public has been left largely in the dark about the basic, underlying questions of what a Green New Deal actually is and what it would aim to achieve. Covering Climate Now How to Stop the Spread of Climate Disinformation Erika Seiber and Michael Khoo A Soundtrack for the Climate Emergency Mark Hertsgaard Can Gen Z Save the Midterms for Democrats? Mark Hertsgaard
No matter which candidate wins the US presidential election, the Green New Deal is likely to remain central to debates about climate policy. If Trump wins, the climate movement and other opponents of his policies will continue to press for a Green New Deal in Congress and across the United States. If Biden wins, the Green New Deal will be the standard by which progressives in his party judge the new president’s approach. It’s past time for media coverage to spell out what a Green New Deal is and is not, how the various versions of it would work in practice—including the closely related Biden plan—and, above all, what it would mean to people’s daily lives.
In a word, journalists must demystify the Green New Deal. The public and policy-makers alike need a foundation of accurate information and fact-based analysis before they can intelligently decide whether to support this response to the climate problem, not to mention the ongoing economic contraction driven by coronavirus lockdowns. Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin How the “Brooks Brothers Riot” Set the Stage for Insurrection How the “Brooks Brothers Riot” Set the Stage for Insurrection Chris Lehmann Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin How the “Brooks Brothers Riot” Set the Stage for Insurrection How the “Brooks Brothers Riot” Set the Stage for Insurrection Chris Lehmann
That Republicans’ efforts have succeeded in making the words “Green New Deal” political poison is dubious. Polls show the general idea is actually quite popular with Americans, and more than 70 percent of Americans reject the notion that strong climate policy will hurt the economy. What seems most accurate is, as one poll by The Washington Post and the Kaiser Family Foundation found last year, that many Americans simply don’t know enough about the Green New Deal to form an opinion one way or another. Current Issue View our current issue
In this regard, the press has not helped. More than three in four Americans in the Post poll said they had heard “little or nothing” about the Green New Deal. Multiple studies from the research organization Media Matters for America have found that the Green New Deal is mentioned frequently on Fox News, typically in mocking terms, but almost never on CNN, MSNBC, and the major networks.
Even if the Biden plan is not exactly the Green New Deal, the latter is here to stay as a political idea, and not only in the United States. Versions of a Green New Deal have now been advocated by governments in Europe and Asia, as well as by various state and local governments in the US. And some congressional candidates have made a Green New Deal central to their appeal to voters. A new campaign ad for Mike Siegel, a Democrat in Texas’s 10th district, features a gravel-voiced worker saying that he and his fellow union members want Siegel “to bring our vision of a Green New Deal to Congress.”
To oversimplify, a Green New Deal aims to combat the climate crisis by creating an abundance of green jobs and business opportunities through targeted government investments. In that sense, it resembles the original New Deal of the 1930s, which combated massive unemployment creating jobs through government spending. Today’s Green New Deal, as outlined in the congressional resolution cosponsored by Representative Alexandria Ocasio-Cortez and Senator Ed Markey in early 2019, is more an ambitious statement of goals than an assemblage of fine-tuned policy proposals. It envisions a broad mobilization of government resources, creating millions of jobs and corresponding business opportunities, to curb greenhouse gas emissions while building up renewable energy and green infrastructure.
The differences between Biden’s plan and the Green New Deal are important and deserve attention from reporters. It’s worth remembering that Biden’s plan emerged from negotiations between members of his campaign and progressives in the Bernie Sanders camp, following Biden’s victory in the primaries. The core of the Biden plan is its pledge to decarbonize America’s electricity sector by 2035. Borrowing from the Sanders approach, the Biden plan also stipulates that 40 percent of federal climate spending will occur in communities of people of color and the poor, who historically have endured the most damage from fossil fuel pollution. The Biden plan leaves out some of the Sanders camp’s other social-equity goals—on health care and housing, for example—but the focus on the economy remains central. “We can get to net zero, in terms of energy production, by 2035…creating millions of good-paying jobs,” Biden said during the debate.
Meanwhile, the science is clear: Avoiding catastrophic amounts of temperature rise demands rapid, far-reaching decarbonization of the world’s economies. Emissions must be cut in half by 2030 to limit temperature rise to 1.5 degrees C, the scientists of the UN’s Intergovernmental Panel on Climate Change said in 2018 in their landmark Global Warming of 1.5 C report. Achieving this goal will require transforming economies at a pace “unprecedented” in human history, the scientists said.
This moment—arguably America’s last to get the climate issue right—demands that the press do a much better job of explaining these scientific and economic realities to their audiences. Trump, according to his own words and actions, has no plan on climate. Biden does have a plan, one that is informed by, but ultimately different from, the Green New Deal. Rather than contributing to an environment in which the words “Green New Deal” are treated as a political liability, good journalism should assess both candidates’ plans on their merits and inform the public accordingly. That means also finally telling audiences the truth about the Green New Deal.


thenation--2020-10-14--Barrett’s Evasions Show Why Expanding the Court Is Necessary

Donald Trump has been admirably candid about the fact that he ’ s rushing the nomination of Amy Coney Barrett to be a Supreme Court justice because he might need her help to decide the election .
“ I think this [ the election ] will end up in the Supreme Court , ” Trump told reporters on September 23 .
“ And I think it ’ s very important that we have nine justices.
” During Tuesday ’ s Senate hearings , Barrett was asked if she would recuse herself if the scenario Trump outlined came to pass and @ @ @ @ @ @ @ election .
Barrett refused to commit to recusal , protesting that her personal integrity would guard against any wrongdoing .
“ I certainly hope that all members of the committee have more confidence in my integrity than to think I would allow myself to be used as a pawn to decide this election for the American people , ” she said .
Alarmingly , Barrett refused to answer questions about whether Trump has the unilateral right to postpone the election and whether he should commit to a peaceful transfer of power .
Barrett @ @ @ @ @ @ @ narrowly personal terms , as if her own honesty were all that counted .
But integrity is a matter of legitimate systems as well as honorable people .
It doesn ’ t matter how much personal decency Barrett has .
Her pending elevation to the Supreme Court is the culmination of a corrupt process , one that calls into question the legitimacy of the institution itself .
As Tufts University political scientist Daniel Drezner notes , “ So on the one hand everything I ’ ve read about Barrett suggests she is a @ @ @ @ @ @ @ hand she willingly accepted the nomination of an impeached president in a rush job of a confirmation process weeks before Election Day.
” President Quack Is Ready to Hawk His Magic Elixir Pence Looks Normal Only in Comparison to Trump By affirming her own personal integrity , Barrett is asserting that she should be evaluated as an individual jurist .
But in her public capacity as a judge , she ’ s not an individual but a soldier in a political army , one that has violated many democratic norms in order to @ @ @ @ @ @ @ nominees on the Supreme Court .
It ’ s the operation of that machine that makes her nomination disquieting .
The path that created that 6-3 majority is well-known : the death of Antonin Scalia , followed by the Republicans under Senate majority leader Mitch McConnell blocking Barack Obama ’ s nominee Merrick Garland from even receiving hearings , Donald Trump winning the White House with the promise to nominate conservative judges , assurances by Republicans that under the same circumstances as Scalia ’ s death they wouldn ’ t nominate a Republican @ @ @ @ @ @ @ Ginsburg , and the Republican violation of their own stated standards .
But the corruption goes deeper .
McConnell has two great and odious achievements : He has protected Donald Trump from investigation for corruption , and he ’ s packed the federal judiciary with Republican nominees .
McConnell ’ s two legacies are intertwined .
In the Trump era , the institutional GOP has made a deal with the devil : Trump is shielded from the consequences of his crimes , in exchange for which he ’ s outsourced the selection of @ @ @ @ @ @ @ , with McConnell ’ s mastery of Senate rules ensuring almost all those nominees will be seated .
McConnell ’ s work as Trump ’ s enabler has been constant—and was most visible during the impeachment trial , when the majority leader ran roughshod over rules to ensure there would be no subpoena of witnesses and documents .
As Senator Jeanne Shaheen noted in January , “ This is not a fair trial … this is a cover-up , pure and simple.
” McConnell has paid a high price in reputation for covering @ @ @ @ @ @ @ legacy .
But the real-world payoff for the cover-up has also been immense .
Since McConnell had already diligently worked to block Obama nominees , this meant that under Trump the Republicans could stack the courts with hundreds of Republicans .
As Jonathan Capehart noted in The Washington Post , “ it should be clear that the real ‘ court-packing ’ has been happening under Trump .
Because Republicans choked off confirmations under Obama , Trump ‘ inherited ’ 103 vacancies , notes a 2020 Brookings study .
As of Oct. 6 , @ @ @ @ @ @ @ 218 judges have been confirmed , more than Trump ’ s Republican predecessors and second to Democratic President Jimmy Carter .
The average age of Trump ’ s appointees to courts of appeals , considered the farm team for the Supreme Court , is 48.2 years.
” The Supreme Court supermajority is the top of this pyramid of court packing .
To use a famous phrase of Justice Felix Frankfurter , Republican court packing is the fruit of the poison tree .
It ’ s a direct result of McConnell ’ s norm-breaking @ @ @ @ @ @ @ s corruption .
If Trump is defeated in November , there has to be a push for legal redress of his corruption .
But this legal redress is only part of the solution .
To let the packed judiciary stand as it is would be to reward the political corruption that was the heart of the Trump presidency .
It would set a precedent that tolerance of corruption is worthwhile because you can extract a huge benefit from it .
Court expansion is necessary not just to rebalance the court , but also @ @ @ @ @ @ @ that created the problem in the first place .
As McGill University political scientist Jacob T. Levy shrewdly noted , court expansion offends the Republican legal establishment precisely because it would mean that their deal with the devil didn ’ t work .
As Levy observes : I can psychologically understand the furious reaction “ we sold our souls for this 6-3 Supreme Court majority and that means we have a right to have it securely delivered ” but it doesn ’ t inspire much sympathy .
Those who cheerfully endorsed or cynically @ @ @ @ @ @ @ on the rule of law , the separation of powers , due process , and procedural norms all for the sake of judicial appointments might feel that the price they paid increases their claim on that 6th seat but it makes them singularly unpersuasive defenders of the norm against court expansion and its associated protection of judicial independence .
This is the accused murderer of his parents throwing himself on the mercy of the court ( so to speak ) because he ’ s an orphan .
Expanding the Supreme Court would have @ @ @ @ @ @ @ would affirm the principle that a deal with the devil always ends badly .

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Donald Trump has been admirably candid about the fact that he’s rushing the nomination of Amy Coney Barrett to be a Supreme Court justice because he might need her help to decide the election. “I think this [the election] will end up in the Supreme Court,” Trump told reporters on September 23. “And I think it’s very important that we have nine justices.”
During Tuesday’s Senate hearings, Barrett was asked if she would recuse herself if the scenario Trump outlined came to pass and she had to pass judgment on the election. Barrett refused to commit to recusal, protesting that her personal integrity would guard against any wrongdoing. “I certainly hope that all members of the committee have more confidence in my integrity than to think I would allow myself to be used as a pawn to decide this election for the American people,” she said. Alarmingly, Barrett refused to answer questions about whether Trump has the unilateral right to postpone the election and whether he should commit to a peaceful transfer of power.
Barrett is framing the issue of integrity in narrowly personal terms, as if her own honesty were all that counted. But integrity is a matter of legitimate systems as well as honorable people. It doesn’t matter how much personal decency Barrett has. Her pending elevation to the Supreme Court is the culmination of a corrupt process, one that calls into question the legitimacy of the institution itself.
As Tufts University political scientist Daniel Drezner notes, “So on the one hand everything I’ve read about Barrett suggests she is a person of integrity but on the other hand she willingly accepted the nomination of an impeached president in a rush job of a confirmation process weeks before Election Day.” More From Jeet Heer The Indigenous Roots of Robbie Robertson’s Rock and Roll Revolution August 14, 2023 Why Does This Racist Keep Getting Silicon Valley Money? August 11, 2023 When Phallocrats Go Limp August 4, 2023
By affirming her own personal integrity, Barrett is asserting that she should be evaluated as an individual jurist. But in her public capacity as a judge, she’s not an individual but a soldier in a political army, one that has violated many democratic norms in order to secure a 6-3 supermajority for the Republican nominees on the Supreme Court. It’s the operation of that machine that makes her nomination disquieting.
The path that created that 6-3 majority is well-known: the death of Antonin Scalia, followed by the Republicans under Senate majority leader Mitch McConnell blocking Barack Obama’s nominee Merrick Garland from even receiving hearings, Donald Trump winning the White House with the promise to nominate conservative judges, assurances by Republicans that under the same circumstances as Scalia’s death they wouldn’t nominate a Republican judge, the death of Ruth Bader Ginsburg, and the Republican violation of their own stated standards. Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin How the “Brooks Brothers Riot” Set the Stage for Insurrection How the “Brooks Brothers Riot” Set the Stage for Insurrection Chris Lehmann Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin How the “Brooks Brothers Riot” Set the Stage for Insurrection How the “Brooks Brothers Riot” Set the Stage for Insurrection Chris Lehmann
But the corruption goes deeper. McConnell has two great and odious achievements: He has protected Donald Trump from investigation for corruption, and he’s packed the federal judiciary with Republican nominees. McConnell’s two legacies are intertwined. In the Trump era, the institutional GOP has made a deal with the devil: Trump is shielded from the consequences of his crimes, in exchange for which he’s outsourced the selection of judges to the reliably right-wing Federalist Society, with McConnell’s mastery of Senate rules ensuring almost all those nominees will be seated. Current Issue View our current issue
McConnell’s work as Trump’s enabler has been constant—and was most visible during the impeachment trial, when the majority leader ran roughshod over rules to ensure there would be no subpoena of witnesses and documents. As Senator Jeanne Shaheen noted in January, “This is not a fair trial … this is a cover-up, pure and simple.”
McConnell has paid a high price in reputation for covering up crimes. It will taint his legacy. But the real-world payoff for the cover-up has also been immense. Since McConnell had already diligently worked to block Obama nominees, this meant that under Trump the Republicans could stack the courts with hundreds of Republicans.
As Jonathan Capehart noted in The Washington Post, “it should be clear that the real ‘court-packing’ has been happening under Trump. Because Republicans choked off confirmations under Obama, Trump ‘inherited’ 103 vacancies, notes a 2020 Brookings study. As of Oct. 6, according to the American Constitution Society, 218 judges have been confirmed, more than Trump’s Republican predecessors and second to Democratic President Jimmy Carter. The average age of Trump’s appointees to courts of appeals, considered the farm team for the Supreme Court, is 48.2 years.”
The Supreme Court supermajority is the top of this pyramid of court packing. To use a famous phrase of Justice Felix Frankfurter, Republican court packing is the fruit of the poison tree. It’s a direct result of McConnell’s norm-breaking, including his tolerance for Trump’s corruption.
If Trump is defeated in November, there has to be a push for legal redress of his corruption. But this legal redress is only part of the solution. To let the packed judiciary stand as it is would be to reward the political corruption that was the heart of the Trump presidency. It would set a precedent that tolerance of corruption is worthwhile because you can extract a huge benefit from it.
Court expansion is necessary not just to rebalance the court, but also to offer a remedy for the corruption that created the problem in the first place.
As McGill University political scientist Jacob T. Levy shrewdly noted, court expansion offends the Republican legal establishment precisely because it would mean that their deal with the devil didn’t work. As Levy observes:
I can psychologically understand the furious reaction “we sold our souls for this 6-3 Supreme Court majority and that means we have a right to have it securely delivered” but it doesn’t inspire much sympathy. Those who cheerfully endorsed or cynically tolerated the last 4 years of assault on the rule of law, the separation of powers, due process, and procedural norms all for the sake of judicial appointments might feel that the price they paid increases their claim on that 6th seat but it makes them singularly unpersuasive defenders of the norm against court expansion and its associated protection of judicial independence. This is the accused murderer of his parents throwing himself on the mercy of the court (so to speak) because he’s an orphan.
Expanding the Supreme Court would have many benefits, not least that it would affirm the principle that a deal with the devil always ends badly.


thenation--2020-10-14--The Devil in the Many Details of Amy Coney Barrett’s Testimony

There are two kinds of judicial confirmation hearings .
One kind involves the nominee giving eloquent yet evanescent answers designed to sound like they ’ re saying something profound when they ’ re really saying nothing at all .
The other kind involves the nominee going out of their way to say nothing , offering terse and combative non-responses and thereby unintentionally telling the Senate Judiciary Committee everything it needs to know .
On Tuesday , Amy Coney Barrett put the country through the latter type of confirmation hearing .
She refused to answer even basic questions about the rule @ @ @ @ @ @ @ articles and decisions were written by someone she had never met , and , instead of clarifying her positions , tried to gaslight the committee into thinking her positions do not exist .
It ’ s not unusual for a judicial nominee to be evasive about how they would rule in an upcoming case about a “ hot button ” culture war issue .
But Barrett was evasive about things that should never be up for debate .
Senator Cory Booker asked her whether a president should commit to the peaceful transfer of @ @ @ @ @ @ @ Diane Feinstein asked her if a president could unilaterally delay a general election—Barrett wouldn ’ t answer .
Senator Amy Klobuchar asked her if voter intimidation was illegal—Barrett wouldn ’ t answer .
And when Klobuchar followed up with the actual federal statute prohibiting voter intimidation , Barrett still wouldn ’ t say that voter intimidation is illegal .
These were softball questions .
It takes nothing for a nominee to support the basic concept of the rule of law .
It takes nothing for a judge to say , “ That statute @ @ @ @ @ @ @ , is good law , Senator.
” The fact that Barrett wouldn ’ t do so is probably why Trump is so eager to put her on the Supreme Court before the current election .
Even among the set of craven bigots and torture apologists Trump has nominated to the federal courts , finding someone who won ’ t demand the peaceful transfer of power is rare .
I can see why Trump likes Barrett .
She ’ s exactly the kind of person he needs to help him steal the election , @ @ @ @ @ @ @ the basis of those non-answers alone .
But Barrett ’ s election dodges weren ’ t the only disqualifying parts of her performance .
Her non-answers on other issues were equally extreme—and terrifying .
She simply did a slightly better job muddying the waters when refusing to talk about her other positions .
When not being coy about whether democracy should exist , Barrett attempted a number of legal sleights of hand to hide her true beliefs .
Like a bad magician , though , she gives away her tricks if you slow @ @ @ @ @ @ @ go through Barrett ’ s three most important evasions during her hearing , so nobody is fooled about why Republicans want her on the court before the election .
The Affordable Care Act : In a 2017 law review article , Barrett questioned the constitutionality of the Affordable Care Act , specifically praising Justice Antonin Scalia ’ s dissent against the law and criticizing Chief Justice John Roberts ’ s decision arguing that the ACA ’ s individual mandate is a constitutional tax .
The article , and Barrett ’ s views about @ @ @ @ @ @ @ the hearings , in the context of California v. Texas , the fresh challenge to the ACA that is due to be argued in front of the Supreme Court on November 10 .
Democrats accused her of prejudging the case .
Barrett did the usual thing of refusing to make a statement about a case that she could potentially hear as a Supreme Court justice , which is fair .
But to square her prior writing with her claimed impartiality about the current case , Barrett claimed that California v. Texas involved different @ @ @ @ @ @ @ about previously .
She said the new case primarily involved whether the individual mandate could be separated ( the legal term is “ severability ” ) from the rest of the ACA , in the event the mandate is ruled unconstitutional .
It ’ s true that the current case deals with the question of severability , but what Barrett didn ’ t want to tell the committee was that the issue of severability comes up only if the court rules that the individual mandate is unconstitutional in the first place .
The @ @ @ @ @ @ @ first question the court will look at in the upcoming case ; the issue of what can be done should it be ruled unconstitutional is the secondary question .
And on that primary question , Barrett has already made up her mind .
In fact , while trying to deflect from her article railing against the individual mandate , Barrett repeatedly referred to the individual mandate as if it was a thing that has already been ruled unconstitutional .
Senator Chris Coons did a very good job of exposing this weakness in her @ @ @ @ @ @ @ had lived , there may have been five votes on the Supreme Court to uphold the constitutionality of the individual mandate .
The only reason Barrett can act like the individual mandate is already dead is because she ’ s the one who has been sent to kill it .
If the Republicans had nominated somebody who is actually open-minded about the issue , it ’ s possible that the court would not even get to the severability question that Barrett claims to have an open mind about .
Under expert questioning from @ @ @ @ @ @ @ she was nominated to her current job on the US Court of Appeals for the Seventh Circuit mere months after she wrote her article calling the individual mandate unconstitutional .
I wonder why .
Roe v. Wade : Barrett is the nominee most hostile to Roe v. Wade since the decision was handed down , at least that I can remember seeing or reading about .
She ’ s written about how abortion is wrong , criticized Roe , and tried to overturn pro-choice and abortion-access cases that have come into her circuit @ @ @ @ @ @ @ , did not disappear at her confirmation hearing .
Barrett came as close to saying she would overturn Roe as one can get without literally spelling it out .
She was given numerous opportunities to defend the basic concept of a women ’ s right to choose , as Ruth Bader Ginsburg did at her confirmation hearings .
She declined .
She was given numerous opportunities to say that a woman ’ s right to choose was protected in the Constitution .
She refused .
Instead , she tried to make Roe sound @ @ @ @ @ @ @ precedent .
She did this by referring , in contrast , to “ super-precedents , ” a class of cases that should never be overturned , and declined to put Roe on her list of such cases .
Now , even in the world of legal jargon , where lawyers often use terms of art that are opaque to non-lawyers , super-precedent is a uniquely meaningless phrase .
In legal scholarship , super-precedent is supposed to refer to some old case that has become so ingrained into our understanding of the law that @ @ @ @ @ @ @ , even if they actually disagreed with the old case .
In reality , precedents are good until they ’ re not .
There ’ s no case that becomes inoculated from reversal simply by the passage of time .
Plessy v. Ferguson , the case that invented the “ separate but equal ” doctrine allowing racial segregation , was “ good law ” for nearly 60 years .
The systematic oppression of free Black people was the basis for the entirety of post–Civil War Southern society ; it was relied upon by @ @ @ @ @ @ @ to give them an unearned sense of pride ; it was a “ super-precedent , ” until Brown v. Board of Ed .
came along and threw it away .
The Democrats Might Actually Have a Strategy to Block Amy Coney Barrett Amy Coney Barrett Is an Extremist—Just Not the Kind You Think There are no super-precedents .
There are merely precedents .
Some judges think that precedents have to be respected unless something has significantly changed in the law or in the society at large since the earlier case .
Other judges @ @ @ @ @ @ @ can be discarded if you simply don ’ t like them .
Barrett has written that a judge who finds precedent to be in conflict with the Constitution should throw out the precedent .
At the hearing , Barrett referred to Brown as a super-precedent , something no judge would overturn , and no lawmaker would try to overcome .
( I ’ ll note that Republicans acting like nobody would try to bring back segregation while their president talks about keeping the suburbs safe from “ Cory Booker ” is as offensive @ @ @ @ @ @ @ she refused to accord Roe the same made-up respect .
Barrett argued that the mere fact that people keep trying to take down Roe was proof that Roe has not attained the same hallowed status as Brown .
By parsing that as a distinction , Barrett was simply laying the groundwork for her eventual opinion overturning Roe .
She ’ s saying that she can overturn Roe merely because she doesn ’ t like it but wouldn ’ t overturn Brown , even if she disagreed with it .
It ’ s like @ @ @ @ @ @ @ protected , except the tasty ones .
Sorry , cow.
” Barrett will overturn Roe v. Wade if she gets a chance .
She wasn ’ t even really trying to hide it at her hearing .
She was trying to justify it .
Recusal : Since Barrett was so obviously anti-Roe , anti–health care , and anti-free-and-fair-elections , multiple Democratic senators asked her if she would recuse herself from upcoming cases .
It ’ s a reasonable request .
Barrett wants to be confirmed after an election has already started , by @ @ @ @ @ @ @ he wants the Supreme Court to “ look at the ballots ” and is all but sure to sue should he lose that election .
It makes all the sense in the world for his handpicked nominee to recuse herself from those immediate cases in which the man who nominated her has a vested interest .
Barrett refused to commit to recusing herself , and she tried to hide behind a law to justify that appearance of corruption .
She cited 28 U.S.C .
455 as the statute governing recusals .
She said @ @ @ @ @ @ @ that law .
The problem is , as Barrett knows , Supreme Court justices can not functionally be held accountable under that law .
The recusal law applies to federal judges , which would seem to include Supreme Court justices , but nobody can actually force Supreme Court justices to recuse themselves .
Nobody can force a Supreme Court justice to do pretty much anything .
The justices serve for life and can be removed only through the impeachment process .
Absent that , nothing can be done to force them to comply @ @ @ @ @ @ @ We know this from the Brett Kavanaugh saga : A panel of judges threw out 83 ethics complaints against the alleged attempted rapist because no existing authority can punish a sitting Supreme Court judge .
Barrett knows that the only thing that can get justices to recuse themselves is their own conscience .
Near the end of the hearing , Kamala Harris finally made her admit to it .
Harris got Barrett to admit that it was in Barrett ’ s sole discretion whether to remove herself from a case .
Today Marks @ @ @ @ @ @ @ Court Term Even after the admission , Barrett refused to commit to it .
She said she ’ d have to go through a “ process ” to determine if she should recuse .
That answer would seem fair-minded if calendars didn ’ t exist .
It is the middle of October .
Republicans are trying to rush through this process and have Barrett confirmed by the end of next week .
After that there will be , at most , 10 days until the election .
The legal process of contesting the @ @ @ @ @ @ @ .
The ACA case will be argued a week after that .
Nobody is asking Barrett to make a far-off guess about what she might do in some theoretical future .
They ’ re asking her what she ’ s going to do in three weeks .
It ’ s simply not possible or credible for Barrett to have no answer about what she might do , in a situation that is left to her sole discretion , over the next three weeks .
Barrett , we were constantly reminded , is a @ @ @ @ @ @ @ myself , I can guarantee that she could tell us what she ’ s going to dress up as for Halloween .
But she can ’ t tell us if she will engage in the corrupt process of deciding the outcome of the election involving the president who nominated her a few days later ?
Come on .
Who honestly believes she doesn ’ t know what she ’ ll do ?
Like I said , by refusing to answer these questions , Barrett has already told us everything we need to know @ @ @ @ @ @ @ , because she doesn ’ t think voter intimidation is illegal , and she won ’ t commit to asking the president to peaceably transfer power .
She ’ s already decided to crush the ACA and Roe v. Wade should she get a chance .
Barrett is here to do a job .
That job is not to be an impartial arbiter of cases and controversies .
That job is to help Trump and the Republican Party push their antidemocratic agenda through the courts .
And she admitted to all of it @ @ @ @ @ @ @ to those who were listening closely .
The greatest trick the devil ever pulled was convincing the world he didn ’ t exist .
Luckily , Amy Coney Barrett isn ’ t slick enough to pull that off .

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There are two kinds of judicial confirmation hearings. One kind involves the nominee giving eloquent yet evanescent answers designed to sound like they’re saying something profound when they’re really saying nothing at all. The other kind involves the nominee going out of their way to say nothing, offering terse and combative non-responses and thereby unintentionally telling the Senate Judiciary Committee everything it needs to know.
On Tuesday, Amy Coney Barrett put the country through the latter type of confirmation hearing. She refused to answer even basic questions about the rule of law, acted like her own articles and decisions were written by someone she had never met, and, instead of clarifying her positions, tried to gaslight the committee into thinking her positions do not exist.
It’s not unusual for a judicial nominee to be evasive about how they would rule in an upcoming case about a “hot button” culture war issue. But Barrett was evasive about things that should never be up for debate. Senator Cory Booker asked her whether a president should commit to the peaceful transfer of power—Barrett wouldn’t answer. Senator Diane Feinstein asked her if a president could unilaterally delay a general election—Barrett wouldn’t answer. Senator Amy Klobuchar asked her if voter intimidation was illegal—Barrett wouldn’t answer. And when Klobuchar followed up with the actual federal statute prohibiting voter intimidation, Barrett still wouldn’t say that voter intimidation is illegal.
These were softball questions. It takes nothing for a nominee to support the basic concept of the rule of law. It takes nothing for a judge to say, “That statute, which you just read to me, is good law, Senator.” The fact that Barrett wouldn’t do so is probably why Trump is so eager to put her on the Supreme Court before the current election. Even among the set of craven bigots and torture apologists Trump has nominated to the federal courts, finding someone who won’t demand the peaceful transfer of power is rare. I can see why Trump likes Barrett. She’s exactly the kind of person he needs to help him steal the election, and her confirmation should be opposed on the basis of those non-answers alone.
But Barrett’s election dodges weren’t the only disqualifying parts of her performance. Her non-answers on other issues were equally extreme—and terrifying. She simply did a slightly better job muddying the waters when refusing to talk about her other positions. When not being coy about whether democracy should exist, Barrett attempted a number of legal sleights of hand to hide her true beliefs.
Like a bad magician, though, she gives away her tricks if you slow down the act. Let’s go through Barrett’s three most important evasions during her hearing, so nobody is fooled about why Republicans want her on the court before the election.
The Affordable Care Act: In a 2017 law review article, Barrett questioned the constitutionality of the Affordable Care Act, specifically praising Justice Antonin Scalia’s dissent against the law and criticizing Chief Justice John Roberts’s decision arguing that the ACA’s individual mandate is a constitutional tax. The article, and Barrett’s views about the ACA, came up repeatedly during the hearings, in the context of California v. Texas, the fresh challenge to the ACA that is due to be argued in front of the Supreme Court on November 10. Democrats accused her of prejudging the case. Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin How the “Brooks Brothers Riot” Set the Stage for Insurrection How the “Brooks Brothers Riot” Set the Stage for Insurrection Chris Lehmann Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin How the “Brooks Brothers Riot” Set the Stage for Insurrection How the “Brooks Brothers Riot” Set the Stage for Insurrection Chris Lehmann Current Issue View our current issue
Barrett did the usual thing of refusing to make a statement about a case that she could potentially hear as a Supreme Court justice, which is fair. But to square her prior writing with her claimed impartiality about the current case, Barrett claimed that California v. Texas involved different issues than the ones she had written about previously. She said the new case primarily involved whether the individual mandate could be separated (the legal term is “severability”) from the rest of the ACA, in the event the mandate is ruled unconstitutional.
It’s true that the current case deals with the question of severability, but what Barrett didn’t want to tell the committee was that the issue of severability comes up only if the court rules that the individual mandate is unconstitutional in the first place. The constitutionality of the individual mandate is the first question the court will look at in the upcoming case; the issue of what can be done should it be ruled unconstitutional is the secondary question. And on that primary question, Barrett has already made up her mind. In fact, while trying to deflect from her article railing against the individual mandate, Barrett repeatedly referred to the individual mandate as if it was a thing that has already been ruled unconstitutional. Senator Chris Coons did a very good job of exposing this weakness in her logic during his time.
If Ginsburg had lived, there may have been five votes on the Supreme Court to uphold the constitutionality of the individual mandate. The only reason Barrett can act like the individual mandate is already dead is because she’s the one who has been sent to kill it.
If the Republicans had nominated somebody who is actually open-minded about the issue, it’s possible that the court would not even get to the severability question that Barrett claims to have an open mind about.
Under expert questioning from Senator Kamala Harris, Barrett admitted that she was nominated to her current job on the US Court of Appeals for the Seventh Circuit mere months after she wrote her article calling the individual mandate unconstitutional. I wonder why.
Roe v. Wade: Barrett is the nominee most hostile to Roe v. Wade since the decision was handed down, at least that I can remember seeing or reading about. She’s written about how abortion is wrong, criticized Roe, and tried to overturn pro-choice and abortion-access cases that have come into her circuit.
Those views, and that animosity, did not disappear at her confirmation hearing. Barrett came as close to saying she would overturn Roe as one can get without literally spelling it out. She was given numerous opportunities to defend the basic concept of a women’s right to choose, as Ruth Bader Ginsburg did at her confirmation hearings. She declined. She was given numerous opportunities to say that a woman’s right to choose was protected in the Constitution. She refused.
Instead, she tried to make Roe sound like it wasn’t an important precedent. She did this by referring, in contrast, to “super-precedents,” a class of cases that should never be overturned, and declined to put Roe on her list of such cases. Now, even in the world of legal jargon, where lawyers often use terms of art that are opaque to non-lawyers, super-precedent is a uniquely meaningless phrase. In legal scholarship, super-precedent is supposed to refer to some old case that has become so ingrained into our understanding of the law that no judge would think to overturn it, even if they actually disagreed with the old case.
In reality, precedents are good until they’re not. There’s no case that becomes inoculated from reversal simply by the passage of time. Plessy v. Ferguson, the case that invented the “separate but equal” doctrine allowing racial segregation, was “good law” for nearly 60 years. The systematic oppression of free Black people was the basis for the entirety of post–Civil War Southern society; it was relied upon by mediocre white man after mediocre white man to give them an unearned sense of pride; it was a “super-precedent,” until Brown v. Board of Ed. came along and threw it away. More on Barrett Amy Coney Barrett Displays Her Twisted Views on Voting Rights Joan Walsh The Democrats Might Actually Have a Strategy to Block Amy Coney Barrett Elie Mystal Amy Coney Barrett Is an Extremist—Just Not the Kind You Think Elie Mystal
There are no super-precedents. There are merely precedents. Some judges think that precedents have to be respected unless something has significantly changed in the law or in the society at large since the earlier case. Other judges, like Barrett, believe that precedents can be discarded if you simply don’t like them. Barrett has written that a judge who finds precedent to be in conflict with the Constitution should throw out the precedent.
At the hearing, Barrett referred to Brown as a super-precedent, something no judge would overturn, and no lawmaker would try to overcome. (I’ll note that Republicans acting like nobody would try to bring back segregation while their president talks about keeping the suburbs safe from “Cory Booker” is as offensive as it is ignorant.) But she refused to accord Roe the same made-up respect. Barrett argued that the mere fact that people keep trying to take down Roe was proof that Roe has not attained the same hallowed status as Brown.
By parsing that as a distinction, Barrett was simply laying the groundwork for her eventual opinion overturning Roe. She’s saying that she can overturn Roe merely because she doesn’t like it but wouldn’t overturn Brown, even if she disagreed with it. It’s like saying, “All animals should be protected, except the tasty ones. Sorry, cow.”
Barrett will overturn Roe v. Wade if she gets a chance. She wasn’t even really trying to hide it at her hearing. She was trying to justify it.
Recusal: Since Barrett was so obviously anti-Roe, anti–health care, and anti-free-and-fair-elections, multiple Democratic senators asked her if she would recuse herself from upcoming cases. It’s a reasonable request. Barrett wants to be confirmed after an election has already started, by a president who has openly said that he wants the Supreme Court to “look at the ballots” and is all but sure to sue should he lose that election. It makes all the sense in the world for his handpicked nominee to recuse herself from those immediate cases in which the man who nominated her has a vested interest.
Barrett refused to commit to recusing herself, and she tried to hide behind a law to justify that appearance of corruption. She cited 28 U.S.C. 455 as the statute governing recusals. She said she would consult with and comply with that law.
The problem is, as Barrett knows, Supreme Court justices cannot functionally be held accountable under that law. The recusal law applies to federal judges, which would seem to include Supreme Court justices, but nobody can actually force Supreme Court justices to recuse themselves. Nobody can force a Supreme Court justice to do pretty much anything. The justices serve for life and can be removed only through the impeachment process. Absent that, nothing can be done to force them to comply with any moral or ethical standard. We know this from the Brett Kavanaugh saga: A panel of judges threw out 83 ethics complaints against the alleged attempted rapist because no existing authority can punish a sitting Supreme Court judge.
Barrett knows that the only thing that can get justices to recuse themselves is their own conscience. Near the end of the hearing, Kamala Harris finally made her admit to it. Harris got Barrett to admit that it was in Barrett’s sole discretion whether to remove herself from a case. More from Mystal Today Marks the Start of a Truly Terrifying Supreme Court Term Elie Mystal
Even after the admission, Barrett refused to commit to it. She said she’d have to go through a “process” to determine if she should recuse. That answer would seem fair-minded if calendars didn’t exist. It is the middle of October. Republicans are trying to rush through this process and have Barrett confirmed by the end of next week. After that there will be, at most, 10 days until the election. The legal process of contesting the election will likely start the next day. The ACA case will be argued a week after that.
Nobody is asking Barrett to make a far-off guess about what she might do in some theoretical future. They’re asking her what she’s going to do in three weeks. It’s simply not possible or credible for Barrett to have no answer about what she might do, in a situation that is left to her sole discretion, over the next three weeks.
Barrett, we were constantly reminded, is a mother of seven. As a parent myself, I can guarantee that she could tell us what she’s going to dress up as for Halloween. But she can’t tell us if she will engage in the corrupt process of deciding the outcome of the election involving the president who nominated her a few days later? Come on. Who honestly believes she doesn’t know what she’ll do?
Like I said, by refusing to answer these questions, Barrett has already told us everything we need to know. She won’t recuse herself, because she doesn’t think voter intimidation is illegal, and she won’t commit to asking the president to peaceably transfer power. She’s already decided to crush the ACA and Roe v. Wade should she get a chance.
Barrett is here to do a job. That job is not to be an impartial arbiter of cases and controversies. That job is to help Trump and the Republican Party push their antidemocratic agenda through the courts. And she admitted to all of it, right out in the open, to those who were listening closely.
The greatest trick the devil ever pulled was convincing the world he didn’t exist. Luckily, Amy Coney Barrett isn’t slick enough to pull that off.


thenation--2020-10-15--The Power of Covid-Positive Thinking

The Power of Covid-Positive Thinking

If Donald trump can be said to believe in anything besides his own enrichment , it is the power of positive thinking .
His family worshipped at the Marble Collegiate Church in New York , whose pep-talking preacher Norman Vincent Peale came up with the positive-thinking creed .
Trump married two of his wives—Ivana Trump and Marla Maples—in the church ; his parents ’ funerals were also held there .
It ’ s this unassailable faith in boosterism that has led him to respond to his diagnosis of Covid-19 with a narrative about how he ’ s learned valuable lessons @ @ @ @ @ @ @ president .
On October 4 he tweeted a video in which he said , “ I learned a lot about Covid .
I learned it by really going to school .
This is the real school .
This isn ’ t the let ’ s-read-the-books school .
And I get it .
And I understand it.
” Bizarrely , he ended the video by saying , “ We love what ’ s happening.
” One famous Trump supporter , Dilbert cartoonist Scott Adams , went even further , comparing Trump ’ s illness @ @ @ @ @ @ @ Parker into Spider-Man .
Alas , all the evidence suggests that infection hasn ’ t made Trump any wiser , let alone transformed him into a superhero .
For one thing , he hasn ’ t become any more honest .
The public deserves to know the state of a president ’ s health when he contracts a potentially lethal disease with no known cure .
Instead the White House offered conflicting and contradictory evidence , which has puzzled not just journalists but also medical professionals .
As The Washington Post noted , @ @ @ @ @ @ @ falsehoods , obfuscation , evasion , misdirection and imprecision from those surrounding Trump as he faces the greatest threat to a president ’ s health in decades.
” He has been touting the restorative powers of the experimental drugs he ’ s taken , with all the enthusiasm of a quack medicine salesman .
Crucially , he ’ s repeatedly blurred the distinction between therapeutic drugs and cures , as well as insisted , falsely , that a cure is just weeks away .
Barrett ’ s Evasions Show Why Expanding the Court @ @ @ @ @ @ @ Hawk His Magic Elixir Trump went on a joyride with the Secret Service and prematurely ended his isolation so he can work in the Oval Office .
About the joyride , James P. Phillips , an attending physician at Walter Reed , tweeted , “ Every single person in the vehicle during that completely unnecessary Presidential ‘ drive-by ’ just now has to be quarantined for 14 days .
They might get sick .
They may die .
For political theater .
Commanded by Trump to put their lives at risk for theater @ @ @ @ @ @ @ even returned to holding campaign rallies .
All of this endangers his staff , the Secret Service , journalists , and the larger public .
To judge by his tweets and interviews , Trump is angrier and more frantic than ever .
He ’ s been sending out a nonstop barrage of threats—including calls to arrest Barack Obama , Hillary Clinton , and Joe Biden .
When Trump touches on substantive politics , he ’ s erratic and unreliable .
On the crucial issue of stimulus relief , he ’ s gone from @ @ @ @ @ @ @ to claiming he wants even more stimulus funding than the Democrats do .
House Speaker Nancy Pelosi , the target of many of his insults , commented , “ Clearly , the White House is in complete disarray.
” She also raised the possibility that steroids , which have been prescribed to help strengthen Trump ’ s lungs , are clouding his judgment .
Nor is she alone in this speculation .
As The New York Times reports , “ Some White House staff members wondered whether Mr. Trump ’ s behavior was @ @ @ @ @ @ @ has been taking to treat the coronavirus , including dexamethasone , a steroid that can cause mood swings and can give a false level of energy and a sense of euphoria.
” Trump ’ s situation is dire .
He ’ s sick , drugs are likely affecting his emotional stability , about 40 workers in his White House orbit have come down with Covid-19 , and he continues to sink in the polls .
All of which suggests that he feels under siege and is using his Twitter account ( even more @ @ @ @ @ @ @ try to create the illusion that he ’ s still dominant .
The danger is that the more wounded he is , the more erratic and unstable he ’ ll become .
Even if he loses the election—or rather , especially if he loses the election—Trump is going to go down fighting .
And he ’ s not afraid to take all of us down with him .

This article appears in the November 2/9, 2020 issue.
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If Donald trump can be said to believe in anything besides his own enrichment, it is the power of positive thinking. His family worshipped at the Marble Collegiate Church in New York, whose pep-talking preacher Norman Vincent Peale came up with the positive-thinking creed. Trump married two of his wives—Ivana Trump and Marla Maples—in the church; his parents’ funerals were also held there. It’s this unassailable faith in boosterism that has led him to respond to his diagnosis of Covid-19 with a narrative about how he’s learned valuable lessons that will make him an even better president.
On October 4 he tweeted a video in which he said, “I learned a lot about Covid. I learned it by really going to school. This is the real school. This isn’t the let’s-read-the-books school. And I get it. And I understand it.” Bizarrely, he ended the video by saying, “We love what’s happening.” One famous Trump supporter, Dilbert cartoonist Scott Adams, went even further, comparing Trump’s illness to the radioactive spider that turned Peter Parker into Spider-Man.
Alas, all the evidence suggests that infection hasn’t made Trump any wiser, let alone transformed him into a superhero. For one thing, he hasn’t become any more honest. The public deserves to know the state of a president’s health when he contracts a potentially lethal disease with no known cure.
Instead the White House offered conflicting and contradictory evidence, which has puzzled not just journalists but also medical professionals. As The Washington Post noted, there followed “a days-long torrent of falsehoods, obfuscation, evasion, misdirection and imprecision from those surrounding Trump as he faces the greatest threat to a president’s health in decades.” He has been touting the restorative powers of the experimental drugs he’s taken, with all the enthusiasm of a quack medicine salesman. Crucially, he’s repeatedly blurred the distinction between therapeutic drugs and cures, as well as insisted, falsely, that a cure is just weeks away. More From Jeet Heer The Indigenous Roots of Robbie Robertson’s Rock and Roll Revolution August 14, 2023 Why Does This Racist Keep Getting Silicon Valley Money? August 11, 2023 When Phallocrats Go Limp August 4, 2023
Trump went on a joyride with the Secret Service and prematurely ended his isolation so he can work in the Oval Office. About the joyride, James P. Phillips, an attending physician at Walter Reed, tweeted, “Every single person in the vehicle during that completely unnecessary Presidential ‘drive-by’ just now has to be quarantined for 14 days. They might get sick. They may die. For political theater. Commanded by Trump to put their lives at risk for theater. This is insanity.”
He has even returned to holding campaign rallies. All of this endangers his staff, the Secret Service, journalists, and the larger public.
To judge by his tweets and interviews, Trump is angrier and more frantic than ever. He’s been sending out a nonstop barrage of threats—including calls to arrest Barack Obama, Hillary Clinton, and Joe Biden. When Trump touches on substantive politics, he’s erratic and unreliable. On the crucial issue of stimulus relief, he’s gone from supporting a deal to saying no deal to claiming he wants even more stimulus funding than the Democrats do. Current Issue View our current issue
House Speaker Nancy Pelosi, the target of many of his insults, commented, “Clearly, the White House is in complete disarray.” She also raised the possibility that steroids, which have been prescribed to help strengthen Trump’s lungs, are clouding his judgment. Nor is she alone in this speculation. As The New York Times reports, “Some White House staff members wondered whether Mr. Trump’s behavior was spurred by a cocktail of drugs he has been taking to treat the coronavirus, including dexamethasone, a steroid that can cause mood swings and can give a false level of energy and a sense of euphoria.”
Trump’s situation is dire. He’s sick, drugs are likely affecting his emotional stability, about 40 workers in his White House orbit have come down with Covid-19, and he continues to sink in the polls.
All of which suggests that he feels under siege and is using his Twitter account (even more than usual) to lash out and try to create the illusion that he’s still dominant. The danger is that the more wounded he is, the more erratic and unstable he’ll become. Even if he loses the election—or rather, especially if he loses the election—Trump is going to go down fighting. And he’s not afraid to take all of us down with him.