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Dahlia Lithwick: Amy Coney Barrett May Claim Neutrality, But Her Record Is “Extremely Conservative”

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In the second day of confirmation hearings for Supreme Court nominee Amy Coney Barrett, the federal judge’s refusal to answer basic questions on voter intimidation and whether a president can delay elections did her “no favors” and was part of an aim to “present herself as neutral; she’s an open book; whatever she was before, whatever she ruled on the bench before, is immaterial,” says Dahlia Lithwick, senior legal correspondent and Supreme Court reporter for Slate.com. “There are some issues that don’t need to be approached with an open mind. … She could have allayed a lot of fears.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The Quarantine Report. I’m Amy Goodman, with Juan González, as we continue our look at how Supreme Court justice nominee Judge Amy Coney Barrett faced questions for about 11 hours on Tuesday as Republicans race to confirm her before Election Day. She repeatedly refused to address numerous issues, from abortion to Affordable Care Act to voting rights.

For more, we’re joined by Dahlia Lithwick, the senior legal correspondent and Supreme Court reporter for Slate.com, where her latest piece is headlined “Don’t Expect a 'Gotcha' Moment in the Barrett Hearings.”

So, Dahlia, I was wondering if you could start off by talking about a lot of what was said — there may not have been a “gotcha” moment — but from everything to refusing to comment on a president delaying the elections, refusing to talk about the transfer of power peacefully. Explain what stood out for you most.

DAHLIA LITHWICK: Hi, Amy. That actually was really striking to me. It seemed a costless concession for her to simply say, “Of course every president has to accede to a transfer of power. Of course poll watchers intimidating voters, minority voters, in minority precincts, is a crime.” I mean, those all seemed easy answers for her. And I think that she did herself no favors. She’s trying, you know, as you just outlined, to present herself as neutral; you know, she’s an open book; whatever she was before, whatever she ruled on the bench, is immaterial; every issue will be approached with an open mind.

But I think you’re exactly right. There are some issues that don’t need to be approached with an open mind. And a president who is hell-bent on suppressing the vote and who has already said he wants her on the court in order to, quote, “count ballots” because he thinks mail-in ballots are all fraudulent — she could have allayed a lot of fears by simply saying, “None of those things that he is doing to disturb democracy itself, to undermine the integrity of the election itself — none of those are in question. There aren’t reasonable arguments to talk about with my clerks.” And so, I think that she made the call to try to look as though every issue could come before her so she’s not going to opine. I think what she ended up doing was terrifying a lot of people who don’t think that these are open questions.

JUAN GONZÁLEZ: And, Dahlia Lithwick, specifically, she refused to say whether she would abstain from taking part in any presidential election dispute if it ended up in the Supreme Court. Your take on that, on that exchange?

DAHLIA LITHWICK: I think she’s got it exactly wrong. And she, I think, tried to flick at this when she said “actual bias” as opposed to the appearance of impropriety. The legal standard, the standard in the canons, the ethic rules, is not “Are you actually biased?” It’s “Do you presumptively give an appearance of impropriety? And if that is the case, you don’t do it.” And so, I think that she kept going back to the well of, “Look, I didn’t make any promises to the president. Nobody from the White House asked me to put a thumb on the scale for the president.” That’s not the standard. The standard is: Does this look improper?

The fact that I think the majority of Americans don’t even want this hearing to happen while voting is taking place tells you that there is some sense that this is improper, that she should not be handpicked by the president who says he wants her to throw the election to him. Whether or not she’s had that conversation with him is immaterial.

And I guess, in some ways, Juan, it goes back to Amy’s question, which is, she has these simple things she can do to simply allay the impression that this is improper, that her sitting on a case like this would be improper, and at every turn, instead of allaying the fears, she throws herself into this guise of neutrality that just further pollutes the conversation.

JUAN GONZÁLEZ: And I wanted to ask you — several of the Republican members of the Judiciary Committee kept talking about the great record of Judge Barrett. Lindsey Graham at one point said that she was, quote, “one of the greatest picks President Trump could make for the Supreme Court.” But could you talk — your assessment of, actually, her record? She’s been on the appellate court for three years, but she — in terms of her actual experience with the federal courts, I compare it, let’s say, to a Sonia Sotomayor, who had decades of experience as a lower court judge, or even Thurgood Marshall or Ruth Bader Ginsburg, who had a long record as lawyers arguing before the Supreme Court. Could you put her credentials in context to other nominees?

DAHLIA LITHWICK: Sure. I mean, I think that Republicans on the committee, when faced with the fact that she’s only had three years of judicial experience and, before that, chiefly academic experience, went back to, “Oh, you know, Elena Kagan didn’t have that much more experience.” And so, I think it’s a valid critique, and I think that the Framers had intended that judges amass a real professional career. But I think it’s fair to say there have been justices, and Kagan is one of them, who didn’t have decades-long careers on the bench the way, say, Justice Sotomayor has.

The issue isn’t so much that it’s just a very brief record. It’s also that that record is incredibly revealing, that in case after case, in her very short time on the 3rd Circuit, she has reached unbelievably conservative results, in cases that have to do with asylum seekers; cases that have to do with prisoner abuse; cases that have to do with workers’ rights; certainly, as Kamala Harris suggested in her questioning, two questions that — two cases that had to do with abortion rights. So I think she has a very, very, very consistent extremely conservative record on the federal bench.

And so, when you hear her being lauded as, you know, she’s neutral, this is balls and strikes, she’s another John Roberts, open-minded about everything, never mind what she said in all the years before, her advocacy and her speeches — even if you only confine your scrutiny to the three years she spent on the federal bench, this is a consistent anti-worker, anti-reproductive-rights, anti-immigrant — I could go on. This is not a neutral record. And that’s why I think they’re feting her as a legal prodigy and a giant, is that she is — boom, boom, boom, right down the books — very, very much more akin to Clarence Thomas and Samuel Alito than to anybody that approaches things utterly neutrally with an open mind.

AMY GOODMAN: In fact, some say that when she was the appellate — when she became the appellate court judge, she was actually taking a stolen seat of a woman, Myra Selby, who was an Indiana state Supreme Court judge, nominated by President Obama to be the first African American appellate judge in that area. But at the time, Senator Coats denied her that, and then the Democratic senator allowed Amy Coney Barrett’s nomination to move forward.

DAHLIA LITHWICK: Yeah, no, I think that what we are seeing in the aggregate, Amy, is just decades of, quote-unquote, “constitutional hardball.” We are seeing Mitch McConnell’s view of the federal bench as his plaything, his football, and a maximalist use of parliamentary techniques.

What you’re describing is the blue slip, that allowed home state senators to keep seats open in some cases for years and years, rather than let Obama fill them. That’s why all these vacancies existed when Donald Trump took over. They got rid of the blue slips, so that people were mashed onto the courts over objecting home state senators’ blue slips. That’s why there was a seat that was in fact intended by Obama to go to the first — what would have been the first African American woman to serve in that seat. She wasn’t even given the courtesy of hearings. She wasn’t given the courtesy of a vote. That seat was held open and eventually filled by Judge Barrett.

AMY GOODMAN: I want to go to —

DAHLIA LITHWICK: I don’t know —

AMY GOODMAN: — back to the hearing, to Illinois Senator Dick Durbin, who questioned Judge Barrett about the implications of her dissent from the majority opinion on a Second Amendment challenge from Rickey Kanter, a Wisconsin man barred from possessing a firearm because he was found guilty of a felony.

SEN. DICK DURBIN: There’s also a question as to whether the commission of a felony disqualifies you from voting in America. … The Sentencing Project today has found that more than 6 million Americans can’t vote because of a felony conviction, and one of out of every 13 Black Americans have lost their voting rights.

The reason I raise that is that in your dissent you said disqualifying a person from voting because of a simple — simple — because of a felony is OK, but when it comes to the possession of firearms, wait a minute, we’re talking about the individual right of a Second Amendment. What we’re talking about in voting is a civic right, a community right, however you defined it. I don’t get it. So, you’re saying that a felony should not disqualify Rickey from buying an AK-47, but using a felony conviction in someone’s past to deny them the right to vote is all right?

JUDGE AMY CONEY BARRETT: Senator, what I said was that the Constitution contemplates that states have the freedom to deprive felons of the right to vote. It’s expressed in the constitutional text. But I expressed no view on whether that was a good idea, whether states should do that.

SEN. DICK DURBIN: Did you not distinguish the Second Amendment right from the right to vote, calling one an individual right under the Constitution and the other a civic right?

JUDGE AMY CONEY BARRETT: That’s consistent with the language and the historical context, the way the briefs described it, and it was part of the dispute in Heller of whether the Second Amendment was an individual right or a civic one that was possessed collectively for the sake of the common good. And everybody was treating voting as one of the civic rights.

SEN. DICK DURBIN: Well, I will just tell you that the conclusion of this is hard to swallow, the notion that Mr. Kanter, after all that he did, should not be even slowed down when he’s on his way to buy a firearm.

AMY GOODMAN: So, that’s Dick Durbin, the Democratic senator from Illinois, questioning Judge Barrett. Dahlia Lithwick, the significance of this?

DAHLIA LITHWICK: Again, I put Kanter, that Second Amendment case, in the bucket of cases where I describe Judge Barrett going way beyond what settled law is. And that’s a good example. In the Heller case that she describes, Justice Scalia, first of all, found for the first time an individual right to bear arms under the Second Amendment. That’s not a thing that’s been understood to be the case for centuries. As she has suggested, that’s something that was kind of invented on the fly in the Heller case. So, she locates that as this fundamental individual right. And as you say, then she downgrades the right to vote as something that is lesser, a kind of civic right.

The other thing that’s really important is that Justice Scalia had no problem with taking away guns from felons in Heller itself. Many, many states have those laws. So she went beyond even what her mentor, Justice Scalia, would have done in the Heller case, and starts to call into question state laws that do not allow former felons to have weapons if they’re, in her view, nonviolent. So, it’s just an example of this long practice she had, in a short time on the 7th Circuit, of nudging, nudging, nudging the law even further than it existed, and then kind of dressing it up as some kind of clear, originalist, obvious step, where, in fact, it’s very, very much what I think conservatives would call judicial activism.

JUAN GONZÁLEZ: Yeah, and on this issue of her being an originalist or a textualist, isn’t this the argument of the Scalia followers of originalism that the language of the Constitution is key, but irrespective of the fact that at the time the Constitution was written, there was, in essence, minority rule in the United States? There was not a clear democracy. So, your sense of the importance of originalism or textualism as the basis of supposedly nonpartisan judicial decisions?

DAHLIA LITHWICK: I think that originalism and textualism, original public meaning, as Justice Scalia described it, are all constitutional modes of interpretation that are dressed up as humble, neutral, mechanical, right? This is John Roberts’ balls and strikes. We just input it into the machine, we look in a dictionary, a contemporaneous definition of what the Framers meant, and that’s the answer.

But I think you’re right: Undergirding that, there is a presumption, particularly with the original drafters of the original Constitution, that they were really thinking in terms of equality and dignity for everyone. And, of course, we know, presumptively, that was a document that was privileging white, male, wealthy land owners. That’s what the intention was. And so, I think it’s a little bit fatuous to pretend, A, that they had the answers to things like in vitro fertilization and marriage equality. But more urgently, there’s a lot of language, even in the original document, that was deliberately vague. What does “equal protection of the law” mean? What is “due process”? What does “cruel and unusual punishment” mean? Those were deliberately left open by the Framers so the future generations could pour contemporaneous meaning into it. And so I think it’s a bit of a shell game. It’s a way of pretending to be neutral and to be fair and to be judicially modest. But, in fact, there’s always going to be a heavy, heavy thumb on the scale in favor of powerful and those who have the greatest voice. It’s the antithesis of what Ruth Bader Ginsburg did. She devoted her career to looking out for the voiceless and the powerless. This is a way of reifying the powerful and the very much represented, often at the expense of vast majorities of people who do not have a voice.

AMY GOODMAN: And very quickly, on the issue of her signing a petition saying that abortion is — talking about the “barbaric legacy” of abortion,” and also, as Senator Leahy pointed out, the group whose letter she signed, talking about IVF as tantamount — that’s in vitro fertilization — tantamount to manslaughter?

DAHLIA LITHWICK: This is a worry. And it’s something that, again, I think she wanted to hold herself out as somebody who will come to this with an open mind regardless of her activism. But I think it’s a very, very good way to make the point that a lot of Trump appointees don’t stop at abortion. There’s an objection to contraception, to IVF, even to surrogacy, Amy, and that the line that we think is the Roe v. Wade line is not at all the line. It starts a lot earlier. And I think we need to be mindful of these, of the ways that this is slipped into the discourse, that possibly surrogacy and IVF are on the chopping block, too.

AMY GOODMAN: Finally, let’s follow the money trail. Democratic Senator Sheldon Whitehouse of Rhode Island did not use his time to question Barrett — he says he’ll do that today — but to discuss the role of dark money in politics. It was essentially a half-hour tutorial. This is just an excerpt.

SEN. SHELDON WHITEHOUSE: In all cases, there’s big anonymous money behind various lanes of activity. One lane of activity is through the conduit of the Federalist Society. It’s managed by a guy — was managed by a guy named Leonard Leo, and it’s taken over the selection of judicial nominees. How do we know that to be the case? Because Trump has said so over and over again. His White House counsel said so. So we have an anonymously funded group controlling judicial selection, run by this guy Leonard Leo.

Then, in another lane, we have, again, anonymous funders running through something called the Judicial Crisis Network, which is run by Carrie Severino, and it’s doing PR and campaign ads for Republican judicial nominees. It got $17 million — a single $17 million donation in the Garland-Gorsuch contest. It got another single $17 million donation to support Kavanaugh. Somebody, perhaps the same person, spent $35 million to influence the makeup of the United States Supreme Court. Tell me that’s good.

And then, over here, you have a whole array of legal groups, also funded by dark money, which have a different role. They bring cases to the court. They don’t wind their way to the court, Your Honor; they get shoved to the court by these legal groups, many of which ask to lose below so they can get quickly to the court to get their business done there. And then they turn up in a chorus, an orchestrated chorus of amici. …

This is a, to me, pretty big deal. I’ve never seen this around any court that I’ve ever been involved with, where there’s this much dark money and this much influence being used. Here’s how The Washington Post summed it up: This is “A conservative activist’s behind-the-scenes campaign to remake the nation’s courts.” And it’s a $250 million dark money operation.

AMY GOODMAN: So, that’s Democratic Senator Sheldon Whitehouse of Rhode Island, who will be joining us later in the week. He’ll be questioning Judge Barrett today. But he really talked about the issues of same-sex marriage, Affordable Care Act, abortion, that while they may be cared out, it’s really corporate power that the corporations want to preserve. Dahlia Lithwick, we have 30 seconds.

DAHLIA LITHWICK: I thought he put on a master class. Everybody should watch that 30-minute discussion. None of it is new. He’s been saying it for a long time. Jane Mayer chronicled it in her book. And I think that it answers the question why a tiny minority of views are so outsize represented at the court.

AMY GOODMAN: I want to thank you so much, Dahlia, for joining us. Dahlia Lithwick, senior legal correspondent and Supreme Court reporter for Slate.com. Her latest piece, “Don’t Expect a 'Gotcha' Moment in the Barrett Hearings.”

To hear all of and watch these hearings, you can go to democracynow.org. We are running them gavel to gavel.

Next up, we speak with Yale law professor Samuel Moyn about his proposal to make the Supreme Court safe for democracy. Thirty seconds, next.

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