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Share us on: By Brandon Lowrey and Erin Coe
Law360 (September 26, 2020, 6:02 PM EDT) — Judge Amy Coney Barrett is a devout Catholic and a law professor who has developed a conservative record in her relatively brief time on the Seventh Circuit.In tapping her Saturday to succeed Justice Ruth Bader Ginsburg on the U.S. Supreme Court, President Donald Trump described Judge Barrett as “one of our nation’s most brilliant and gifted legal minds.” Judge Barrett, 48, had been eyed as a likely Trump nominee for the high court for almost as long as she has been on the Seventh Circuit. She became a contender for the seat vacated by the retirement of Justice Anthony Kennedy less than a year after her 2017 confirmation to the circuit court.Her record then was thin. She has since penned dozens of opinions and dissents and joined many more, some touching on hot-button issues.”Judge Amy Coney Barrett has compiled a record in her decision-making and her written opinions that show she is extremely ideologically conservative, especially on issues such as reproductive freedom and religious freedom,” said Carl Tobias, a professor at University of Richmond School of Law.Much of the debate about Judge Barrett seems certain to center on her views on abortion and the likelihood she could play a role in weakening or overturning the high court’s landmark Roe v. Wade decision that established a woman’s right to terminate a pregnancy. While Judge Barrett has not written an opinion directly on abortion, she has in two cases appeared to back the state of Indiana’s right to impose restrictions on the practice.Judge Barrett, a former law clerk to the late Supreme Court Justice Antonin Scalia, has produced a body of academic writing that suggests a leaning toward originalism and more conservative principles. She has testified that she is a “faithful Catholic.”This has made some attacks on Judge Barrett fraught for Democrats, who could be perceived as attacking Catholicism or faith more broadly. Sen. Dianne Feinstein, D-Calif., found herself in that uncomfortable position when she grilled then-nominee Barrett on her writings about the balance of the Catholic faith and the duties of a federal judge during the Seventh Circuit confirmation process. Feinstein faced backlash for commenting at one point that “dogma lives loudly within you, and that is a concern to me.”Judge Barrett also has many supporters.When she was nominated to the Seventh Circuit, she received the backing of every member of the Notre Dame law faculty, a politically diverse group, said Richard Garnett, a director of the Notre Dame Program on Church, State & Society. She also garnered support from her former co-clerks at the Supreme Court on the right, left and center, as well as high-profile progressives like Neal Katyal of Hogan Lovells. She was confirmed to the Seventh Circuit on a 55-43 vote, winning over some Senate Democrats.”Judge Barrett’s tenure and work on the Court of Appeals has confirmed my confidence and high opinion,” Garnett said. “Her opinions are clear, respectful, and well-reasoned. Her currency is careful analysis, not rhetoric.”The confirmation process is sure to become intense.A 6-3 conservative majority on the high court could make rulings like Roe v. Wade and Obergefell v. Hodges , which protected same-sex marriage, vulnerable to change. Democratic lawmakers have also expressed fury that Republicans have vowed to confirm Trump’s nominee to replace Justice Ginsburg during a presidential election year after refusing to grant a hearing to President Barack Obama’s nominee to fill Justice Scalia’s seat in 2016.Here are some of Judge Barrett’s most telling Seventh Circuit votes, opinions and dissents.2020Cook County, Illinois et al. v. Chad F. Wolf et al., case number 19-3169Judge Barrett dissented from a Seventh Circuit panel that upheld a federal judge’s order temporarily blocking the Trump administration from enforcing its public charge immigration rule in Illinois, although the rule remained in effect nationwide.”The plaintiffs have worked hard to show that the statutory term ‘public charge’ is a very narrow one, excluding only those green card applicants likely to be primarily and permanently dependent on public assistance,” Judge Barrett wrote. “That argument is belied by the term’s historical meaning — but even more importantly, it is belied by the text of the current statute, which was amended in 1996 to increase the bite of the public charge determination.”The majority, however, said the plaintiffs would probably win in part because the public charge rule penalizes green card applicants who may use public assistance for food, housing and health care in the future, and Congress explicitly intended for immigrants to have access to such benefits.Yeison Meza Morales v. William P. Barr, case number 19-1999Judge Barrett wrote a decision for a Seventh Circuit panel that restored a procedural tool allowing immigration judges to table cases while permitting immigrants to pursue other relief, shredding a 2018 decision by former Attorney General Jeff Sessions.In the Matter of Castro-Tum, Sessions barred judges and the Board of Immigration Appeals from using “administrative closures” to allow immigrants time to have their petitions reviewed.Judge Barrett wrote that while Sessions’ decision “tries to draw reinforcement from the general policy of expeditiousness underlying immigration law, that policy doesn’t justify departure from the plain text of the rule.””Immigration laws and regulations, like all laws and regulations, are the product of compromise over competing policy goals. Expeditiousness may be one such goal, but it is not the only goal,” Judge Barrett wrote.Carmen Wallace et al. v. Grubhub Holdings Inc. et al., case number 19-1564, and Thomas Souran et al. v. Grubhub Holdings Inc. et al., case number 19-2156Judge Barrett, writing on behalf of a unanimous panel, said Grubhub delivery drivers in two proposed wage-and-hour class actions must arbitrate their claims.She and the rest of the Seventh Circuit panel rejected the drivers’ contention that they were exempt from the Federal Arbitration Act as transportation workers engaged in foreign or interstate commerce. The drivers argued that the components of the food they deliver had previously traveled across state lines to local restaurants.”A package of potato chips, for instance, may travel across several states before landing in a meal prepared by a local restaurant and delivered by a Grubhub driver; likewise, a piece of dessert chocolate may have traveled all the way from Switzerland,” Judge Barrett wrote. “The plaintiffs insist that delivering such goods brings their contracts with Grubhub within § 1 of the FAA. As they see it, the residual exemption is not so much about what the worker does as about where the goods have been.”Judge Barrett wrote that the drivers would need to show they had actually moved the goods across borders. Otherwise, the exemption would cover countless other delivery workers: “for example, dry cleaners who deliver pressed shirts manufactured in Taiwan and ice cream truck drivers selling treats made with milk from an out-of-state dairy.”2019Rickey I. Kanter v. William P. Barr, case number 18-1478Judge Barrett dissented from a Seventh Circuit panel that upheld a federal judge’s ruling upholding the constitutionality of Wisconsin laws that forbid felons from possessing firearms. Judge Barrett contended that the laws should be ruled unconstitutional because — as in the case before the circuit brought by a convicted mail fraudster — the statutes don’t discern between violent and nonviolent felons.She signaled some of her originalist tendencies in the process.”History is consistent with common sense: It demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” she wrote. “But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun.”Planned Parenthood of Indiana and Kentucky Inc. v. Kristina Box et al., case number 17-2428After a Seventh Circuit panel upheld an injunction on an Indiana law entitling parents to be notified of their unemancipated minor’s intent to undergo an abortion, Judge Barrett was in the minority that voted in favor of rehearing the matter en banc.She joined Seventh Circuit Judge Michael Stephen Kanne’s dissent.”This case implicates an important and recurring issue of federalism: Under what circumstances, and with what evidence, may a state be prevented from enforcing its law before it goes into effect?” Judge Kanne wrote. “Given the existing unsettled status of pre-enforcement challenges in the abortion context, I believe this issue should be decided by our full court. Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.”Planned Parenthood of Indiana and Kentucky Inc. et al. v. Commissioner of the Indiana State Department of Health et al., case number 17-3163After a Seventh Circuit panel ruled unconstitutional Indiana’s attempt to ban abortions based on a fetus’ sex, race or disability and require aborted fetuses to be buried or cremated, Judge Barrett was in the minority that voted in favor of rehearing the matter en banc.Judge Barrett joined Seventh Circuit Judge Frank Easterbrook’s dissent.”Think of animal-welfare statutes. Dogs may not be beaten for fun. Bullfights are forbidden. Horses may not be slaughtered in Illinois for the dinner table under a statute this circuit sustained largely on animal-welfare grounds,” Judge Easterbrook wrote. “Many people feel disgust, humiliation, or shame when animals or their remains are poorly treated. We wrote in [Cavel International Inc. v. Madigan ] that a ban on slaughtering horses for human consumption is rationally related to the goal of reducing dismay at poor treatment of these creatures. Isn’t that equally true of a statute about fetal remains?”Judge Easterbrook also cited a similar fetus-disposal law enacted in 1987 in Minnesota, which requires burial, interment or cremation.Doe v. Purdue University, case number 17-3565Judge Barrett wrote an opinion for a Seventh Circuit panel reviving a complaint alleging Purdue University violated the civil rights of a male ROTC student by unfairly finding him guilty of sexually assaulting his girlfriend, suspending him for a year and notifying the U.S. Navy.A U.S. magistrate judge in Indiana had dismissed the John Doe’s complaint for failure to state a claim, saying the plaintiff hadn’t shown that the school had violated his Fourteenth Amendment right to due process in depriving him of property or liberty, nor had the plaintiff appropriately pleaded Title IX sex bias. Judge Barrett, however, wrote in a 30-page opinion that the pleadings properly alleged both theories.She said the student properly pleaded that the university violated his due-process rights by depriving him of liberty — in this case, his ability to pursue a career in the U.S. Navy — by telling the military branch that the school had found him guilty of sexual assault.The student also appropriately alleged that the university also violated Title IX by taking his accuser’s word alone over his, while rejecting all other evidence he offered, the judge said. Judge Barrett suggested that the plaintiff’s claims were plausible, as the university was under pressure at the time to report a higher number of sexual assault punishments to the U.S. Department of Education. Furthermore, she pointed to a social media post by Purdue’s Center for Advocacy, Response and Education, a campus office supporting sexual assault victims.”The plausibility of that inference is strengthened by a post that CARE put up on its Facebook page during the same month that John was disciplined: an article from The Washington Post titled ‘Alcohol isn’t the cause of campus sexual assault. Men are,'” she wrote. “Construing reasonable inferences in John’s favor, this statement, which CARE advertised to the campus community, could be understood to blame men as a class for the problem of campus sexual assault rather than the individuals who commit sexual assault.”Judge Barrett noted that while Doe’s complaint clears the bar for pleading his allegations, “the factfinder might not buy the inferences that he’s selling.”2018Fiorentini v. Paul Revere Life Insurance Co., case number 17-3137Judge Barrett wrote for a panel affirming that the owner of a small technology company who was unable to work during cancer treatment no longer qualified for total disability coverage under an occupational disability insurance policy with Paul Revere Life Insurance Co. several years after treatment. His claim that he couldn’t perform one of his four important job duties — sales — did not fall within the terms of his insurance policy, and although the claim was more in line with the policy’s “residual disability” provision, he chose not to apply for those benefits, according to the opinion.Schmidt v. Foster, case number 17-1727The majority in this case found that a lower court improperly denied assistance of counsel during a pretrial hearing on behalf of a man who admitted to murdering his wife but tried to rely on “adequate provocation” to reduce the crime from first- to second-degree homicide.Judge Barrett dissented, arguing the hearing was not a trial-like confrontation that entitled the petitioner to counsel.”I disagree that clearly established Supreme Court precedent dictates the resolution of Schmidt’s Sixth Amendment claim,” Judge Barrett wrote. “The majority says that this ex parte and in camera proceeding was a ‘critical stage,’ but the court’s ‘critical stage’ precedent deals exclusively with adversarial confrontations between the defendant and an agent of the state.”–Additional reporting by Mike LaSusa and Dave Simpson. Editing by Kelly Duncan and Jill Coffey.
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Share us on: By Brandon Lowrey
Law360 (September 26, 2020, 5:59 PM EDT) — Vows from President Donald Trump and the Republican-led Senate to quickly confirm Judge Amy Coney Barrett as Justice Ruth Bader Ginsburg’s replacement are likely to unleash liberal efforts to add seats or restrictions to the high court — ideas dismissed as risky or wild just months ago.The liberal icon’s death and the court’s seemingly inevitable shift have kicked off a parade of fantasies of a golden age for conservatives and an era of horror for liberals: The landmark abortion decision Roe v. Wade would be vulnerable, anti-discrimination laws could be in jeopardy, the Affordable Care Act could be dismantled and regulations could face a more hostile judiciary.From the corridors of the Capitol to the halls of academia, structural reforms like adding seats to the high court or trimming its jurisdiction are being given a more serious look, particularly by those on the left.Leaders from three top liberal legal groups declined to delve into details on their plans, saying that their attention is focused on blocking Trump’s nominee. When pressed about making more fundamental changes to the court, however, they each offered some variation of the same response: “Everything is on the table.””What we’ve been seeing the past couple of years is an erosion of trust and legitimacy of our courts,” said Zinelle October, executive vice president of the American Constitution Society. “Everything should be on the table. We should think very broadly about it.”The inevitably brutal confirmation process for the next high court nominee, and its potential aftermath, follows decades of political escalation that has grown to consume the entire federal judiciary.Republican Majority Leader Sen. Mitch McConnell of Kentucky has vowed to hold confirmation hearings for Trump’s expected nominee and has the votes to do it. Democrats, meanwhile, appear to be powerless to halt the process using conventional means without at least four Republican defectors.This leaves liberals facing the likely prospect of a heavily conservative U.S. Supreme Court for perhaps a decade or longer. Their only remedies in sight are structural.
Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.
— Ed Markey (@EdMarkey) September 19, 2020
Among these, the most discussed is the idea of “court packing,” in which the party in power would add more seats to the nine-member high court and fill them with more palatable justices. It had been a topic among Democratic presidential primary candidates as far back as last year, but Joe Biden has declined to address the topic.It isn’t a new idea, and it would only take legislative action to do; the number of seats on the high court is determined not by the Constitution, but statutorily. In 1937, President Franklin Delano Roosevelt pushed to set the number of seats at 15 after the nine-member high court issued rulings against his New Deal. His proposal went down in flames in Congress.The approach has more recently seen a revival, particularly after Justice Ginsburg’s death.In a Los Angeles Times opinion article, University of California-Berkeley Law School Dean Erwin Chemerinsky urged Democrats to vow to grow the court to 13 justices if Republicans fill Justice Ginsburg’s seat and lose the election.And on Friday, a trio of progressive House Democrats proposed a bill that would set an 18-year term limit on future U.S. Supreme Court justices and almost certainly temporarily expand the court beyond nine justices. The legislation is likely to serve as a warning shot, as it doesn’t have support among Democratic leadership.
Here’s why I support court-packing. This Administration and the Senate have manipulated the Supreme Court by refusing to confirm Garland and then install two justices with the backing of senators who represent a minority of Americans. They’re making the Court countermajoritarian.
— Anthony Michael “Unrig the Court” Kreis (@AnthonyMKreis) September 20, 2020
Packing the court might not be a clear-cut victory for Democrats, some legal scholars argue.Pragmatically, Democrats would need to take control of both the White House and the Senate in order to actually do it. There would also be nothing to keep Republicans from further packing the court when the tables are turned.University of Chicago Law School professor Ryan Doerfler and Yale Law School professor Samuel Moyn argue in a forthcoming paper for the California Law Review that packing the court would be a short-term, democratically risky and “nakedly partisan” solution. The scholars instead advocate reforms that would remove some power from the high court and transfer it to the political branches of government, such as stripping parts of the court’s jurisdiction or imposing supermajority voting rules for judicial review.”Such reforms thus amount to mutual judicial disarmament, lowering the stakes of judicial appointments and increasing (or at least evening) the stakes of congressional and presidential elections,” they wrote.Andrew Jennings, a lecturer at Stanford Law School, wrote in another draft California Law Review article that tweaking high court procedures would be less politically explosive and, in his words, make the high court’s docket “more boring.”The court has long abided by the informal “Rule of Four,” meaning that the court doesn’t grant certiorari to cases that fail to attract the interest of at least four justices. Jennings and his co-author, BraunHagey & Borden LLP impact litigation associate Athul Acharya, suggested that a future Congress could pass a law requiring more than four justices to sign on before granting certiorari.This could prevent the court from taking up some of the most explosive cases and place the court’s focus on sorting out technical matters and resolving circuit splits.”Most cases the Supreme Court hears are not cases we would necessarily talk about at the water cooler unless we’re lawyers or legal academics, but there are those few that are very hot-button, and we’d probably see fewer hot-button issues come to the court like that,” Jennings told Law360 in a recent interview.Jennings and Acharya whipped up the article over the weekend following Justice Ginsburg’s death, intending only to guess at options Democrats might consider if her seat were to be filled by a lame-duck president and Congress. The authors didn’t advocate for any option, and merely pointed out some of their potential effects.The authors said that altering the high court’s jurisdiction could also be plausible, but warned that it could have the unintended consequence of freezing precedent, since some issues would be far less likely to make a return trip to the court.Partisan concerns are not unique to the high court. A recent report by the conservative Heritage Foundation says that Trump’s judicial nominees, down to the district courts, have faced unprecedented levels of opposition from Democrats.
The conservative think tank said more than 90% of historical judicial nominations had been confirmed with little or no opposition. But that trend has not held up in recent years.During President Barack Obama’s last two years in office, the Republican-led Senate held hearings for fewer judges than in any other two years in American history and confirmed just 22 judges, compared with the historical average of 62 for the last two years of a presidency, the report said.In all, the rate of unopposed judicial confirmations dropped to about 66% during Obama’s presidency. During the Trump presidency, it plummeted to 26%, according to the Heritage Foundation.Thomas Jipping, the report’s author and deputy director of the foundation’s Edwin Meese III Center for Legal and Judicial Studies, told Law360 that Supreme Court nominations are hard to draw trends from because they come up so rarely. However, he said the fierce legislative tactics and close confirmation votes on district court judges over the past four years have demonstrated a remarkable transformation of the process.”That, to me, is the bigger concern,” he said. “So the question with regard to that is whether, going forward, that’s going to become the new normal. And those norms include systematic, across-the-board opposition to nominees, cloture votes on every single nominee, you know, those kinds of things.”He said he isn’t sure whether partisan gridlock over judicial nominees will continue into the next administration, or whether this is simply a reaction to Trump. Indeed, Jipping’s report notes that feelings of unfairness may have been stoked by the president’s electoral college victory despite significantly losing the popular vote, and the Republican Senate’s nearly yearlong refusal to hold confirmation hearings for D.C. Circuit Judge Merrick Garland, who had been nominated by Obama in 2016.Add to that the fact that Justice Ginsburg was perhaps the most iconic liberal justice and that her dying wish was reportedly to delay replacing her until next year — a wish that does not seem to have swayed any Republican lawmakers.Scores of Democratic politicians have blasted the most likely outcome.”Senator McConnell has defiled the Senate,” Minority Leader Chuck Schumer of New York wrote. “Senator McConnell and Senate Republicans are trying to steal two Supreme Court seats four years apart, using completely contradictory rationales.”Jipping said the rationales weren’t contradictory at all. The 2016 election was certain to result in a new president, he said, and Republicans had control of the Senate.The acrimony is likely to play out during confirmation hearings, which could begin in coming weeks. Jipping lamented the weaponization of the confirmation process in his report, and said he expects to see unfairness leveled at Trump’s nominee.Attempts to pack the courts would be to repeat Roosevelt’s historical failure, which led to a humiliating legislative defeat at the hands of his own Democrats, Jipping said.”That’s exactly what this is about: a hostile takeover of the Supreme Court,” Jipping said. “For no other reason than just simply to achieve a Supreme Court that will deliver the goods.”–Additional reporting by Andrew Kragie. Editing by Kelly Duncan and Bruce Goldman.
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Share us on: By Jimmy Hoover
Law360 (September 26, 2020, 5:57 PM EDT) — If confirmed by the Senate, Seventh Circuit Judge Amy Coney Barrett would give conservatives six votes on the U.S. Supreme Court and clear the way for broad Republican victories in the areas of affirmative action, abortion and more, experts say.In 2018, conservatives won their strongest Supreme Court majority in years when President Donald Trump appointed Justice Brett Kavanaugh to succeed Justice Anthony Kennedy, a Republican appointee who over the years frequently voted with the liberal justices on issues like reproductive freedom and LGBTQ rights.Now they have the chance to expand their grip on the nation’s top court by replacing the late Justice Ruth Bader Ginsburg, long the leader of the court’s liberal wing, with a 48-year-old conservative in Judge Barrett.Legal experts say Judge Barrett’s confirmation would bring a sea change in the law, with a newly invigorated conservative majority moving quickly to dismantle or undermine the court’s precedents on social issues.”It would likely mean that we’re going to see constitutional law shift to the right,” said Adam Winkler, a professor at the UCLA School of Law. “We’re likely to see the rights of women to choose abortion, the rights of unions to organize and be politically active, and the rights of LGBT minorities minimized. In contrast, we’re likely to see the rights of religious people, the rights of gun owners, the rights of businesses expand.”Having six Republican appointees on the Supreme Court is nothing new, and in fact, Republican appointees have outnumbered Democratic appointees for decades.Before Justice Stephen Breyer joined in 1994, Justice Ginsburg was the sole Democratic appointee on the court. Yet many of those Republican appointees, such as Justices John Paul Stevens and David Souter, became reliable liberal votes over the course of their tenures. As a result, Republicans have made it a mission to appoint justices to the high court that won’t go their own way on some of the biggest issues, and Judge Barrett, a longtime Federalist Society member with a strong record of conservative writings, is expected to fit the bill.”The last time there was six right-of-center justices? It really hasn’t happened in the modern era,” said George Mason University law professor Ilya Somin.In the two years since Kavanaugh replaced Kennedy, the court’s 5-4 conservative majority has turned out to be weaker than expected. The 2019 term was particularly disappointing to conservatives after the court struck down a Louisiana abortion law, extended civil rights protections to LGBTQ workers and ruled against Trump in a case over access to his financial records.Chief Justice John Roberts has emerged as a swing vote in many recent cases. His institutionalist leanings often lead him to join with his liberal colleagues to protect the image of the court in the eyes of the public.With the likes of Judge Barrett on the Supreme Court, however, Chief Justice Roberts would now be in the minority should he join the liberal wing of the court in contentious cases.”[Conservatives] can afford to lose one person and still prevail,” Somin said. “That’s a big edge.”Indeed, Judge Barrett is expected to bring a brand of steadfast conservatism to the court similar to that of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch. It will likely then be up to Justice Kavanaugh in many cases to determine how far to the right the court moves in many cases.Winkler noted that Justice Antonin Scalia’s landmark Second Amendment ruling in Heller v. District of Columbia, which recognized an individual right to gun ownership, nevertheless included passages that acknowledged the legality of some forms of gun control. Those passages, likely put in at the insistence of Justice Kennedy to secure his vote, “watered down the effect of the opinion,” Winkler said.With Judge Barrett on the court, there will no longer be anyone to play that role, Winkler said.”I expect that you’re going to have that conservative majority push its vision of the law very aggressively without the need for compromise,” he said.And some say the presence of a sixth conservative vote on the Supreme Court could actually make Chief Justice Roberts less concerned about the optics of a conservative ruling.”It’s much less of an institutional problem to be on the side of a 6-3 [decision] that overrules a precedent than to be on the side of a 5-4 [decision] to overrule a precedent,” said William Araiza of Brooklyn Law School. “It seems like the abortion right is obviously in very serious trouble. Whether that happens in one fell swoop or whether it happens through 1,000 cuts, we don’t know that.”Not since Justice Thomas succeeded the pioneering civil rights lawyer Justice Thurgood Marshall has a Supreme Court seat swung so dramatically as it is expected to should Judge Barrett be confirmed; indeed, Justice Ginsburg was compared to Justice Marshall throughout her career for her success taking on sex discrimination in the law in the 1970s.The justice, who died Sept. 18 from cancer, was an icon to the progressive left, and her replacement by President Trump is likely to enrage liberals. An increasing number of activists, lawmakers and groups have encouraged Democrats to embrace the idea of packing the court as a way to undo Trump’s takeover of the Supreme Court if they regain power.That’s why Somin is quick to point out that any effect Judge Barrett would have on the direction of the law “assumes that it will not quickly be removed by a Democrat court-packing plan or another political maneuver.”–Editing by Brian Baresch and Emily Kokoll.
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Share us on: By Dave Simpson
Law360 (September 26, 2020, 5:33 PM EDT) — Seventh Circuit Judge Amy Coney Barrett was worth $1.9 million in 2017, according to the most recently available financial disclosures from the U.S. Supreme Court nominee that were made public by watchdog group Fix the Court.Judge Barrett’s 2019 disclosure is coded, so values are reported in ranges rather than specific amounts, but it lists assets that are worth between $1 million and $2.8 million and do not include her real estate holdings.Across her 2015 to 2017 disclosures, the Catholic mother of seven reported thousands in honoraria from groups like the faith-based legal organization Alliance Defending Freedom, conservative public interest organization the Federalist Society, and the faith-based nonprofit focused on college students Veritas Forum Inc.And in 2018 and 2019, she took 10 trips that were funded by the Federalist Society, according to the financial disclosures.Judge Barrett worked as a summer associate at Covington & Burling LLP in 1997 before winning a clerkship with D.C. Circuit Judge Laurence H. Silberman and then one with the late Justice Antonin Scalia during the 1998-1999 Supreme Court term. She did a stint in private practice following her clerkships and then began a long career in academia that eventually earned her a seat on the Seventh Circuit.Since 2002, she has been a professor at the University of Notre Dame, the Law School, where she teaches classes on constitutional law, civil procedure, evidence, federal courts and statutory interpretation.In 2015 and 2016, Judge Barrett pulled in more than $200,000 per year in salary from Notre Dame, according to the 2017 report. Last year, she received $27,825 from the school, according to the 2019 disclosure.In 2017, Judge Barrett reported owning real estate valued at nearly $600,000, some of which she rented out. The 2019 filing notes that she no longer rents out her residence in South Bend, Indiana, where Notre Dame is located.In the coded 2019 disclosure, Judge Barrett reported holding between $500,000 and $1 million in a Vanguard account and between $250,000 and $500,000 in a Fidelity account. In 2017, that Vanguard account was worth $624,000 and the Fidelity account was worth $80,000. She reported more than 50 assets worth less than $15,000 and more than a dozen that were worth between $15,000 and $50,000 in 2019.When Justice Brett Kavanaugh went up for confirmation in 2018, his only listed assets were accounts held at Bank of America and a Texas retirement account totaling between $15,000 and $65,000, according to his financial disclosures.That same year, Justice Clarence Thomas listed assets worth between $695,000 and $1.7 million, while Justice Stephen G. Breyer listed assets worth between $6.4 million and $16.6 million, according to their disclosures.–Editing by Breda Lund.
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Share us on: By Jacqueline Bell, John Campbell and Pamela Wilkinson
Law360 (September 26, 2020, 5:30 PM EDT) — With five weeks to go before Election Day, the race is on for President Donald Trump to secure Judge Amy Coney Barrett’s confirmation to the U.S. Supreme Court bench.Senate Republicans are eyeing an aggressive timetable to secure the necessary votes to confirm Judge Barrett and face staunch opposition to the effort from their colleagues on the other side of the aisle.Here’s a look at how past confirmations have played out, how long they took, how tough the fights were, and how some unexpected twists and turns complicated the process along the way.The TimingNo justice has ever been formally confirmed to fill a vacancy on the high court within two months of a presidential election. While Senate Republicans are laying out a crisp timetable for committee hearings, debates and votes in order to get the confirmation done before Election Day, it would be a feat never before accomplished.The average time, from 1868 onwards, is about 30 days — but confirmation has taken almost double that in recent years. Chief Justice John Roberts, who was confirmed in only 23 days, stands apart from the justices on his court. The late Justice Ruth Bader Ginsburg’s confirmation took 50 days, and the timetable for all the remaining sitting justices has ranged from 66 to 99 days.
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On the current court, Justice Clarence Thomas holds the record, having withstood a 99-day confirmation process in 1991.Justice Louis Brandeis had the longest wait for confirmation since the turn of the 20th century — just over four months.While 152 days passed between Chief Justice Earl Warren’s selection in 1953 and confirmation in 1954, the California governor took to the bench immediately as a recess appointment. He was confirmed 49 days after his nomination formally went to the Senate.It is possible to win confirmation on the day of nomination, history has shown. Four justices, including former President William Howard Taft, have done so. Two of Franklin D. Roosevelt’s appointments, Justices Robert H. Jackson and James L. Byrnes, were confirmed a month apart on same-day votes in 1941.The VotesThe time from nomination to confirmation has grown in recent years — and for many justices, so has the political opposition.The late Justice Ginsburg, a Democratic nominee, was considered a moderate when she took the bench, and secured a nearly unanimous vote for her confirmation. The first female justice, Sandra Day O’Connor, a Republican nominee also considered a moderate, secured a unanimous vote.Justices Samuel Alito, Sonia Sotomayor and Elena Kagan did not obtain similar overwhelming majorities in the Senate, as judicial nominations have moved to the center of the political battleground in the past few decades.Justice Thomas was narrowly approved by the Senate with 52 votes, and Justice Kavanaugh secured a mere two-vote margin, with a confirmation vote of 50-48.Justice Neil Gorsuch, like Justice Kavanaugh a Trump appointee with conservative bona fides, won only 54 votes — an example of how politically charged the process has become.
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The TwistsThe Roberts court has had its share of twists, with the sudden death of Justice Antonin Scalia in 2016 and the retirement of Justice Anthony Kennedy two years later. The loss of Justice Ginsburg just ahead of a presidential election is yet another unexpected turn, and one that only a handful of other presidents, and justices, have faced.President Abraham Lincoln faced a judicial vacancy just a few weeks ahead a presidential election in the midst of the Civil War, when Chief Justice Roger Taney died on Oct. 12, 1864. President Dwight Eisenhower grappled with the Supreme Court retirement of Justice Sherman Minton just three weeks before Election Day.With a high court vacancy close to a presidential election, these presidents had to carve unusual paths for their nominees to take the bench.
–Editing by Kat Laskowski.
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Share us on: By Jimmy Hoover
Law360, Washington (September 26, 2020, 5:03 PM EDT) — President Donald Trump on Saturday nominated Judge Amy Coney Barrett, a prominent conservative law professor who serves on the Seventh Circuit, as Justice Ruth Bader Ginsburg’s replacement on the U.S. Supreme Court — a move that could lurch the court even further to the right.President Trump introduced Judge Barrett, 48, as his nominee in a ceremony at the White House Saturday. Judge Amy Coney Barrett speaks after President Donald Trump announced Barrett as his nominee to the Supreme Court, in the Rose Garden at the White House on Saturday. (AP Photo/Alex Brandon)
“Today it is my honor to nominate one of our nation’s most brilliant and gifted legal minds to the Supreme Court,” Trump said in a speech in the Rose Garden, announcing his third pick to the high court. “She is a woman of unparalleled achievement, towering intellect, sterling credentials and unyielding loyalty to the Constitution: Judge Amy Coney Barrett.”Trump said Judge Barrett will “decide cases based on the text of the Constitution as written.”Accepting the nomination Saturday, Judge Barrett paid tribute to Justice Ginsburg, who died of cancer at age 87 last Friday, just eight days prior to Saturday’s announcement.”Should I be confirmed, I will be mindful of who came before me,” she said, noting that flags are still at half-staff in memory of the late justice, who was a pioneering women’s rights advocate before joining the bench. “She not only broke glass ceilings, she smashed them.”Judge Barrett then laid out her conservative judicial philosophy, promising to adhere to the text of the Constitution and the laws. Speaking of the late Justice Antonin Scalia, for whom she clerked, she said, “His judicial philosophy is mine too. A judge must apply the law as written.Her nomination to become the 103rd associate justice kicks off a bitter political battle as Republicans race to fill Justice Ginsburg’s seat before the presidential election, which is just 38 days away. Republicans currently enjoy a 53-seat majority in the Senate, meaning they can lose up to three votes and still confirm Judge Barrett with Vice President Pence’s vote as the tie-breaker.If confirmed, Judge Barrett would give Republicans a supermajority on the Supreme Court and leave only three justices — Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — appointed by Democrats.A Catholic mother of seven, Judge Barrett made a name for herself as a professor at University of Notre Dame, the Law School, where she published widely on topics of constitutional law, statutory interpretation and the role of precedent. In her speeches and writings, Judge Barrett expounds on the virtues of originalism and textualism, conservative judicial doctrines championed by Justice Scalia, whom she clerked for during the 1998 Supreme Court term.Well liked by the conservative legal establishment, Judge Barrett’s stock rose dramatically after Democrats seized on her Catholic faith during her Senate confirmation to question whether she could be an impartial judge on the Seventh Circuit. She was ultimately confirmed in October 2017 and has now served on the appeals court for nearly three years.Plaudits poured in Saturday from all corners of the conservative legal establishment.”President Trump promised to appoint justices in the mold of Scalia and [Clarence] Thomas,” said Carrie Severino of the well-heeled Judicial Crisis Network. “He has kept that promise and I look forward to supporting Judge Barrett’s confirmation.”To do just that, Severino’s organization announced Saturday that it “expects to spend at least $10 million” on political ads in key states across the country.Mike Davis of the Article III Project, an conservative outside group supporting the president’s judicial nominees, called Judge Barrett a “rock-solid conservative” Saturday.”With the appointment of a Justice Barrett as his third Supreme Court pick, President Trump will transform the 5-4 John Roberts court to the 6-3 Clarence Thomas court,” Davis said.A Conservative SupermajorityJudge Barrett’s conservative bona fides have rung alarm bells for progressives now facing the prospect of losing the 27-year anchor of the Supreme Court’s liberal wing to a longtime member of the Federalist Society they expect will be hostile to abortion rights, workers, LGBTQ rights and more.”She will be an extreme far-right justice on the Supreme Court if she is confirmed,” said Elliot Mincberg, who has studied Judge Barrett’s record for the progressive group People for the American Way.
Replacing Justice Ginsburg with Judge Barrett would be a “huge swing to the right,” Mincberg said. “Much more so than replacing Scalia with [Justice Neil] Gorsuch, or even [Justice Anthony] Kennedy with [Justice Brett] Kavanaugh.””It would be hard to find an issue where Barrett agrees with Ginsburg’s views,” he said. “And vice versa, I suspect.”Though she hasn’t been on the Seventh Circuit long, she has already carved out a strong conservative track record on abortion and gun rights.In 2018, Judge Barrett dissented when the Seventh Circuit refused to reconsider a decision striking down a controversial statute that made it illegal to perform an abortion because of the fetus’ sex, race or disability.Reproductive rights groups decried the nomination Saturday. “Trump has nominated a replacement who would gut Justice Ginsburg’s legacy and turn back five decades of advancement for reproductive rights,” said Nancy Northrup, the president of the Center for Reproductive Rights.In 2019, she dissented to a decision by two other Republican appointees and argued that a federal law barring felons from owning guns was unconstitutional as applied in that case. Her colleagues, she said, were treating the Second Amendment as a “second class right.”Judge Barrett has also voted numerous times against civil plaintiffs, whether denying breach of contract claims against a life insurance company or tossing a suit against a debt collector under the Fair Debt Collection Practices Act.She also joined an 8-4 decision in the 2019 case Kleber v. CareFusion Corp. barring job applicants from bringing claims that certain hiring practices have a discriminatory impact on older workers. The conservative Reagan appointee on the Seventh Circuit, Judge Frank Easterbrook, dissented.Depending on how soon she could be confirmed, Judge Barrett could provide the crucial swing vote to rule that the Affordable Care Act is unconstitutional in a pending case set to be heard on Nov. 10. In a 2017 law review article, Judge Barrett criticized Chief Justice John Roberts’ 2012 decision upholding the law, saying he “pushed the Affordable Care Act beyond its plausible meaning to save the statute.””Let’s be clear what’s at stake: health insurance for millions of Americans and life-saving protections for the 129 million people with pre-existing conditions,” Sen. Dianne Feinstein, D-Calif., said in a statement regarding the vacancy Tuesday.’One Ought to be an Originalist’Born in New Orleans in 1972, Judge Barrett grew up the oldest of seven children whose father was an attorney for the Shell Oil Co. After earning her bachelor’s degree in English Literature from Rhodes College in 1994, she attended The Law School at Notre Dame, where she received her degree in 1997. She worked as a summer associate at Covington & Burling LLP in 1997 before winning a clerkship with D.C. Circuit Judge Laurence H. Silberman and then one with Justice Scalia during the 1998-1999 Supreme Court term.Judge Barrett worked a stint in private practice following her clerkships and then began a long career in academia that eventually won her a seat on the Seventh Circuit. Since 2002, she has been a professor at Notre Dame’s law school, where she teaches classes on constitutional law, civil procedure, evidence, federal courts and statutory interpretation.She has published a slew of law review articles over the years expounding on her conservative judicial philosophy. She is also a longtime member of the Federalist Society, the legal network that has had an outsized influence on Trump’s judicial selections and counts most of the conservative justices on the court among its ranks.Judge Barrett explained her commitment to originalism in a 2019 speech to the New Orleans Lawyers Chapter of the Federalist Society. “I think one ought to be an originalist because the Constitution, no less than a statute, is law,” she said. “It’s not merely a statement of our aspirations as some have described it.”Judge Barrett defended the idea that the Constitution has a “fixed” meaning that does not change with time.”Its meaning was fixed at the time it was written and formally adopted and it stays the same until it is lawfully changed,” she said. “The content of the commitment does not change even if popular attitudes wax and wane. Even if a majority of the country thinks that free speech is passé, the First Amendment stands.”–Editing by Jill Coffey and Pamela Wilkinson.–This story has been updated with additional information.
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