Amy Coney Barrett Should Not Get That Promotion

By JOEL D. JOSEPH

Amy Coney Barrett’s nomination to the Supreme Court is comparable to Clarence Thomas’ appointment. Both nominees pale in comparison to their predecessors. Thomas is no Thurgood Marshall, and Barrett is no Ruth Bader Ginsburg. Let us not make the same mistake twice and appoint a young jurist to the court who will seek to undo the advances made by her iconic predecessor.

Barrett, placed on the 7th Circuit Court by Trump three years ago, is just 48 years old. She could serve on the Supreme Court for 40 years. Thomas is the longest-serving justice on the court now. He was appointed in October 1991 at the age of 43 and has been on the court for 29 long years. He is now 72 and could serve another decade or more.

Thurgood Marshall was a giant in the law. He headed the NAACP’s efforts to end racial discrimination and argued many cases before the Supreme Court. Justice Ginsburg was also an advocate who fought for years for gender equality, arguing six cases before the nation’s highest court and winning five.

Neither Barrett nor Thomas have a track record of fighting for equality or being advocates before they joined the bench. On the contrary, they are both regressive jurists. By regressive, I mean against civil rights, against a woman’s right to choose and against gun control.

Barrett has written that abortion is “always immoral,” and joined two dissents against decisions supporting the right to choose. One decision stopped the enforcement of a state law that would have required a minor — regardless of her maturity or family situation — to notify her parents of her decision to have an abortion, giving them veto power, unless a judge found this was not in her best interests.

The other decision struck down a state law banning abortions at any stage of pregnancy based on fetal disabilities, including those that were life-threatening.

Barrett dissented from a ruling banning people with felony convictions from possessing firearms, and publicly criticized Chief Justice John G. Roberts Jr. for voting with the high court’s liberal bloc to uphold the Affordable Care Act, saying he pushed the statute “beyond its plausible meaning” to save it. Roberts was applying the doctrine of constitutional avoidance. Constitutional avoidance is the principal that, if possible, the Supreme Court should avoid ruling on constitutional issues, and resolve the cases before them on statutory grounds.

Barrett acknowledges that the decision she considers most significant in her relatively short time as a judge “sounds kind of radical”: She doesn’t believe the Constitution gives the government the authority to ban all felons from owning guns. She rejected the arguments of the Trump administration’s Justice Department and broke with the views of two fellow Republican-nominated judges on the appellate panel who had a combined 72 years of experience, in Kanter v. Barr (2019).

Barrett looked at Justice Scalia’s important caveat in the 2008 landmark Heller v. D.C. decision establishing an individual’s right to gun ownership — “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill” — and saw an opening. At the same time, she said, government may take away certain “civic rights,” such as voting or the ability to serve on a jury, upon being convicted of a crime, but not the right to own a gun. She argued that the right to bear arms is more important than the right to vote. While a convicted felon cannot physically hurt anyone with a vote, he or she can certainly cause deadly harm with a firearm. Her position on the felon dispossession issue is at odds with nearly all other federal appeals court decisions on the issue and is clearly out of the mainstream of American jurisprudence.

Judges Joel Flaum and Kenneth Francis Ripple, nominated to the 7th Circuit by President Ronald Reagan, ruled for the government and held that all felons lose their right to bear arms. They said the federal and Wisconsin laws banning felons were sufficiently related to the government’s goal of keeping guns out of the hands of those convicted of serious crimes.

Justice Ginsburg’s most important legacy is that she was a forward-thinking, canny and an unabashed feminist. Beginning in the 1970s, as a co-founder of the ACLU’s Women’s Rights Project, she argued six sex-discrimination cases before the US Supreme Court and won five. In several of them, she sought to invalidate laws that barred men from taking advantage of certain benefits, driving home the point — to an all-male court — that unequal treatment hurts everyone equally.

Clarence Thomas entered Yale Law School in 1971. One of 12 black students, he was the beneficiary of an affirmative-action program — Yale had decreed that 10% of the incoming class would be students of color. Thomas owes his Yale pedigree to Thurgood Marshall who pushed for affirmative action in education and successfully argued Brown v. Board of Education that desegregated public schools.

In his decades on the court, Thomas has become famous for his hostility to civil rights, affirmative action and most of the claims raised by criminal defendants, who are disproportionately people of color. Astoundingly, he did not ask one question during a 10-year period. In Flowers v. Mississippi, decided in 2019, during six trials the State of Mississippi used its peremptory challenges (that is, challenges for which no reason need be given) to strike 41 out of 42 African-American prospective jurors. As Justice Kavanaugh observed, with considerable understatement, “A court confronting that kind of pattern cannot ignore it.” Kavanaugh joined the court’s opinion ruling that abuse of peremptory challenges to remove black jurors deprived the defendant of his constitutional rights.

But Thomas did ignore the blatant racial discrimination of the Mississippi court. Indeed, he filed a dissenting opinion that showed that he was genuinely outraged—not by the prosecutor, but by his fellow Justices, who dared to grant relief to Flowers, who had spent more than two decades in solitary confinement at Mississippi’s notorious Parchman prison.

In Shelby County v. Holder, the Supreme Court, by a 5-4 conservative majority, overturned part of the Voting Rights Act used to determine which states had a history of discrimination and required preclearance of new laws that affected voting rights. Thomas, the only African American on the court, joined his conservative brethren. The court ruled that the Voting Rights Act was no longer necessary and that the Southern states selected for mandatory pre-clearance were outdated. Ginsburg saw it in different terms. Her dissent said the ruling would effectively gut the Voting Rights Act and was tantamount to “throwing away your umbrella in a rainstorm because you are not getting wet.”

An estimated 1,700 polling places have been closed, mainly in the South, since the court’s ruling, and voter suppression is already shaping up to be a battleground in the 2020 election. Virtually all of the restrictions on voting subsequent to the Shelby County ruling were imposed by Republican-controlled legislatures.

Twenty-nine years after Clarence Thomas was appointed to the Supreme Court, we are still feeling the impact of that horrendous choice. Barrett’s appointment to the nation’s highest court could have the same adverse consequences for gender equality, gun control, healthcare and civil rights. Let us not make the same mistake twice. Ruth Bader Ginsburg deserves to be replaced by a judge who will honor, not disgrace, her judicial legacy.

Joel D. Joseph is a lawyer, chairman of the Made in the USA Foundation, and author of “Black Mondays: Worst Decisions of the Supreme Court” (Foreword by Justice Thurgood Marshall).

Barret’s nomination was rushed through the Senate Judiciary Committee and she was confirmed by the Senate Oct. 26 on a 52-48 vote, one month after she was nominated.

From The Progressive Populist, November 15, 2020

Populist.com