WASHINGTON—Add voting rights, both at the polls and who has the right to vote, to the list of key issues which U.S. Supreme Court nominee Amy Coney Barrett is ducking.
And as for the presidential election this fall, “occasions where courts decide elections should be [cases] where courts protect the right to vote,” she said—and then stopped.
That halt is no surprise. The day before, in her second day before the Senate Judiciary Committee, Barrett ducked answering whether her sponsor, GOP Oval Office occupant Donald Trump, could unilaterally postpone the Nov. 3 election.
Barrett, now a federal appellate judge, had also ducked answering whether a president could be indicted, and other issues, such as how she would rule on gay marriage, reproductive rights, and especially the future of the Affordable Care Act. The justices will take the GOP’s anti-ACA case on Nov. 10.
“No hints, no forecasts, no previews,” was Barrett’s refrain both days.
On Oct. 14, the third day of her confirmation hearing, Barrett told Sen. Dianne Feinstein, D-Calif., that which states, cities, and counties the federal Voting Rights Act covers “are all controversial, so I can’t give you an answer” on that issue.
The 1965 Voting Rights Act put federal controls, called preclearance, on states and other governments with a history of racism in banning voting. Most were in the old South. If those governments wanted to change voting rules, the feds had to say OK, first, to prevent continued discrimination.
Congress later renewed and expanded the act’s reach, covering religious discrimination at the polls, too. Those votes were overwhelming and bipartisan. But in 2013, in a 5-4 vote, the GOP-named majority Supreme Court tossed preclearance out. That same day, North Carolina, taking 45 minutes, led a parade of states in curbing the right the vote.
And Barrett ducked commenting on a lower federal court ruling banning Wisconsin from extending its deadline for voters to seek absentee ballots in advance of the election.
Both voting questions are important because of two reasons: GOP voter suppression, led by Trump, who nominated her for the High Court, and the coronavirus pandemic.
There’s a third possibility: As it did 20 years ago, the High Court may decide the presidency. And then, 5-4, it awarded the job to Republican George W. Bush, by stopping the controversial vote count and recount in the decisive state of Florida. Bush won there, due to the court, by 537 votes out of 5.8 million cast. Trump expects the justices, including Barrett, to decide this year’s vote, too—for him.
Meanwhile, Republicans from coast to coast, even in states they don’t run, are engaged in massive voter suppression efforts, aimed especially at people of color, women, workers, union members, and young people—in short, at anyone who opposes their pro-corporate exploitative pro-capitalist agenda.
And the pandemic, which has killed 216,469 people in the U.S. as of 4 pm Oct. 14 and seen 7.896 million people test positive for the coronavirus plague, has forced the states to scramble to find ways for people to cast ballots without having to endanger their health and maybe their lives by going to the polls.
Many have turned to mail-in absentee ballots, which Trump opposes. Almost 12 million people nationwide have already sent in their absentee ballots. But in an often-repeated repeated lie, Trump claims mail-in ballots produce fraud. And ruling Republicans, including in Wisconsin, shift absentee ballot deadlines as another suppression method.
That’s what Feinstein was asking about. In one of the last cases where Barrett’s late predecessor, Justice Ruth Bader Ginsburg, could comment, the majority ruled Wisconsin could shut off absentee registration. “It boggles the mind,” Ginsburg said of the majority’s GOP-sought ruling. Barrett again ducked.
“That’s the kind of case that could come up before the Seventh Circuit” Court of Appeals, where she now serves, “or at the Supreme Court,” she explained. So she declined to answer.
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For the first time, workers’ rights took a substantial chunk of the hearing, thanks to Sen. Kamala Harris, D-Calif., the Democratic vice presidential nominee in this fall’s election.
Rattling off five cases Barrett wrote on for her court, Harris declared the judge ruled against workers in every one. Quoting Ginsburg in a workers’ arbitration case that reached the Supreme Court, Harris noted “Employees must have the capacity to act collectively. She told Congress ‘There is an extreme imbalance of power.’” The workers lost to corporate-mandated arbitration, 5-4, on party lines.
“You have had a pattern of ruling against workers,” Harris said. One involved four Black truckers and another involved Illinois Transportation Department worker Terry Smith, who was transferred after his supervisor called him the “n” word. Barrett ruled that wasn’t enough to create a hostile work environment and let Smith sue under equal opportunity laws.
“Independent analysis shows you’ve ruled against workers in 85% of the cases,” Harris said. “People are very scared about what it [her nomination] means for civil rights, workers’ rights, climate change, human rights, health care, and the ACA,” the senator concluded.
The future of the court, the ACA, and the GOP Trump regime all hung over the hearing, interrupted in the afternoon by sound problems. For more than an hour, it was impossible for senators, Barrett, or the huge national broadcast audience, to hear questions and answers.
“The larger challenge is not what you’ve said, but what the president who nominated you said,” Sen. Christopher Coons, D-Del., commented. “Your confirmation may launch a new era of conservative judicial activism that we haven’t seen in decades. Nothing in your work” of decisions, speeches, and law review articles “has disabused me of that impression.”
And Sen. Richard Blumenthal, D-Conn., a former state Attorney General, feared “legislative activism from the bench.” Added Sen. Mazie Hirono, D-Hawaii: “Your being put on the court would flip it further and further to the right.”
As the senators continued to quiz Barrett inside, demonstrations against her continued outside. The hundreds of people across the street from the Senate’s office building split their ire between their expectation Barrett would be the key vote to overthrow the 1973 Roe v Wade ruling legalizing reproductive rights, and denunciation of Trump’s rush to put Barrett on the court before the GOP’s anti-ACA case comes up on Nov. 10.
People for the American Way, one of the key sponsors of the marches outside the Senate, said Barrett’s views on splitting up what she thought might be the ACA’s unconstitutional sections from the rest of it might not save the law should she join the court.
“Whether you think that what matters is ‘the language of the statute enacted by Congress,’ the intent or purpose behind the enacted statute, or something else, most theories…seek to give a statute the meaning it had at the time that it was enacted. So what a later Congress thinks is irrelevant,” PFAW quoted Barrett as saying in a 2019 lecture.
“If Barrett decides it is ‘irrelevant’ that Congress in 2017 showed it considers the mandate”—the tax initially included in the ACA—splittable from the rest of the law, “then millions of Americans could lose the protections that law provides, including protections for people with preexisting conditions.”
Groups also lined up for Barrett, notably the secretive right-wing corporate cabal, the American Legislative Exchange Council. The Leadership Conference on Civil Rights formally joined the foes by letter on Oct. 14.
The AFL-CIO has yet to respond about whether it will testify at the last day of the hearings, Oct. 15. But federation President Richard Trumka announced labor’s opposition to the Barrett nomination in late September.
“Judge Barrett demonstrates a clear disdain for workers’ rights, and her confirmation would push the most corporate-friendly Supreme Court in history further into the pockets of the wealthy elite. Working people’s wages, health care, job safety, civil rights, and freedom to form a union will all be undermined if she is confirmed. Judge Barrett is the wrong person at the wrong time,” Trumka, a lawyer, said then.
Back inside, Judiciary Committee Chairman Lindsay Graham, R-S.C., a Trump golfing buddy, also said Trump’s nomination of Barrett should appeal to women, a group where the White House denizen and other Republicans—himself included—are rapidly losing ground in the polls. In deep-red South Carolina,
Graham is in a 48%-48% tie against former state Democratic chairman Jaime Harrison, who is Black.
“This is history being made, folks. This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology. And she is going to the court, where there is a seat at the table waiting for you,” said Graham.
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