- Elie Mystaljustice correspondent for The Nation magazine.
As President Trump nominates conservative federal judge Amy Coney Barrett to the Supreme Court to fill Ruth Bader Ginsburg’s seat, we look at how an emboldened 6-3 conservative majority on the Supreme Court could dramatically loosen gun laws, hurt immigrant communities and play a possibly central role in deciding a close presidential election. “Her religious conservatism is not what’s extreme about her. It’s her actual judicial opinions,” says Elie Mystal, justice correspondent for The Nation. “She does not use her religion to guide her through her decisions; she uses her extremist conservative views.”
AMY GOODMAN: This is Democracy Now! The Quarantine Report. I’m Amy Goodman. President Trump has nominated the conservative federal judge Amy Coney Barrett to the Supreme Court to fill Ruth Bader Ginsburg’s seat. Barrett is a 48-year-old former Notre Dame law professor who clerked for the late Supreme Court Justice Antonin Scalia. On Saturday, Barrett spoke alongside President Trump at the White House.
JUDGE AMY CONEY BARRETT: I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine, too: A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.
AMY GOODMAN: Senate Democrats have slammed Senate Majority Leader Mitch McConnell for proceeding on Barrett’s nomination so close to the election. In 2016, McConnell refused to hold confirmation hearings for Merrick Garland, President Obama’s pick to replace Scalia, who had died nearly nine months before the election. At the time, McConnell said, quote, “The American people should have a voice in the selection of their next Supreme Court justice,” unquote. But now Republicans are racing to get Barrett confirmed at a time when early voting has already begun in some states. The Senate Judiciary Committee plans to start Barrett’s confirmation hearing on October 12th. A full Senate vote could occur as soon as October 22nd.
If Barrett is confirmed by Election Day, she’ll immediately take part in a major case that could determine the future of the Affordable Care Act. On November 10th, the oral arguments will be heard. Three years ago, she wrote a law review article criticizing Chief Justice John Roberts upholding the ACA, writing, quote, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” unquote.
Well, on Sunday, Democratic presidential nominee Joe Biden criticized Trump’s nomination of Barrett.
JOE BIDEN: There’s no mystery about what’s happening here. President Trump is trying to throw out the Affordable Care Act. He’s been trying to do it for the last four years.
AMY GOODMAN: Amy Coney Barrett could also help decide who wins the presidential election. Last week, Trump said he expects the election to end up before the Supreme Court, saying that’s why he’s pushing the Senate to rapidly confirm a replacement for Ginsburg. Twenty years ago, Barrett worked with George W. Bush’s legal team on the contested Florida recount. Two other future Supreme Court justices at the time, John Roberts and Brett Kavanaugh, also helped Bush’s team, which actively worked to stop a recount.
Amy Coney Barrett has a record of taking conservative stances on abortion, gun rights and immigration. She once called abortion “always immoral.” The Human Rights Campaign has called her an “absolute threat to LGBTQ rights.”
During her confirmation hearing, Senate Democrats are also expected to ask questions about her membership in a secretive Catholic group called People of Praise. Members of the group pledge a lifelong loyalty oath to the group, which assigns each member a personal adviser, known as “heads,” for men, and, until recently, “handmaids,” for women.
In a moment, we’re going to Alexis McGill Johnson, president and CEO of Planned Parenthood, but we are staying with Elie Mystal for a few minutes right now, The Nation’s justice correspondent.
Elie, you wrote a piece that is headlined “Amy Coney Barrett Is an Extremist — Just Not the Kind You Think.” Explain.
ELIE MYSTAL: Yeah. So, there are a lot of people who kind of started where you ended, Amy, where they have focused on her religious conservatism and her membership in this group, and the fact that she has written extensive law review articles about what Catholic judges should do and shouldn’t do while on the bench. And so people have kind of focused in on the religious conservatism of her nomination.
And I just wanted to focus people on the issue that her religious conservatism is not what’s extreme about her. It’s her actual judicial opinions. In fact, she only uses the religion card, the religion angle, when it serves her particular purpose in terms of policy against abortion rights or LGBTQ rights. Overall, she does not use her religion to guide her through her decisions; she uses her extremist conservative views to guide her through her decisions.
It’s not a religious position to deny people seeking public assistance a green card; it’s Amy Coney Barrett’s position to do that. That’s her deal. It’s not a religious position to ignore the deliberate indifference to human life when a prison guard shoots shotgun shells into a crowded cafeteria; that’s Amy Coney Barrett’s position to ignore the deliberate indifference to human life.
So, she has a bunch of extreme conservative positions that make her a problematic nominee far beyond her religious affiliations and whatever. Quite frankly, I don’t care about her religion. I care about her decisions.
AMY GOODMAN: Of course, she can also weigh in on the election, if in fact the presidential election goes to the Supreme Court.
ELIE MYSTAL: Yes. To be clear, Donald Trump could have nominated Atticus Finch, and I would oppose the nominee, because having a nominee to take office in the middle of an election — I mean, people are saying, like, “Oh, right before the election.” It’s not right before the election; the election has started. People are voting, right? So, what Trump is trying to do is pick his own judge in a contested election about his own presidency, that, as we talked about in the last second, he kind of has to win, or else he’s going to jail, right? So, that is not how the system of laws and government is supposed to work. So, there is no person that I think Trump should be allowed to nominate in these circumstances, because of the election issue and because of the timing of the nomination.
Amy Coney Barrett is — of the people that Trump could have nominated, Amy Coney Barrett is one of the most extreme people that he could have nominated, as opposed to a kind of moderate, middle-of-the-road person. And so, obviously, I think there’s a lot of justified concern that if she gets to the court, she will be a fifth vote in favor of handing Donald Trump the presidency.
AMY GOODMAN: We’re going to talk with Alexis McGill Johnson, head of Planned Parenthood, in just a minute, about abortion and Obamacare, which is going before the Supreme Court on November 10th. But I wanted to ask you, Elie, about one major case set to come before the court, Fulton v. Philadelphia, which involves religious freedom and gay rights, that could have much broader implications — the case brought by Catholic Social Services, a faith-based group, which refuses the placement of foster children to same-sex couples. The group was one of 30 agencies that the city of Philadelphia contracted with to place abused and neglected children in foster homes, but the city ended the contract after learning that CSS denied placement of children with same-sex couples. And the charity then sued Philadelphia, citing a violation of free religious exercise and free speech if they were forced to provide services to LGBTQ couples. Oral arguments scheduled for November 4th. Explain the significance of this case.
ELIE MYSTAL: This is one of the most important cases on the Supreme Court docket, and it goes right to the heart of LGBTQ rights and LGBTQ adoption privileges. But it also goes to the heart of a new and, I think, dangerous trend in our First Amendment jurisprudence. The First Amendment’s protection of freedom of religion is supposed to be a shield, right? It’s supposed to protect me, a religious observer, to allow me to act and support my faith in the privacy of my own home and in my public space, right? What the religious right is trying to do to the First Amendment is to change it from a shield to protect people to a sword to go after people who don’t agree with their preferred religion, right? Like, that’s completely flipping the First Amendment on its head.
And so, what the issue in this Fulton County case is, is the group who discriminates against gay people in adoption — that’s just what they do — and they’re allowed to do that because that’s — freedom of religion means freedom to hate people that you don’t like, and so they can hate them or whatever. But what they want to do is to force the city of Philadelphia to adopt that discrimination, to adopt that bigotry, and make it part of city policy by allowing them to continue to place foster children, who are wards of the state, based on the Catholic services’ bigoted decision-making in terms of who is able to adopt. Now, so it’s a critically important case for those reasons.
The problem is, and the reason why Amy Coney Barrett doesn’t, to me, so much play into this, is that liberals were going to lose that case already. There aren’t five votes against this kind of corruption of the First Amendment. I don’t know that — with Ruth Bader Ginsburg passing away, I don’t know that there were two votes, because in the past, cases like this, this version of the First Amendment, both Justice Stephen Breyer and Elena Kagan have joined the religious conservatives for this, again, I think, corruption of the First Amendment. So, with RBG gone, I really think it’s going to be an 8-1 case with only Sonia Sotomayor standing opposed.
AMY GOODMAN: Elie, we just have 30 seconds. What do you think Democrats should be doing right now?
ELIE MYSTAL: Everything except for adding legitimacy to the process. You cannot go to these hearings. You cannot add your voice to these processes. You have to do everything you can to delay, and then win the White House and win the Senate and expand the court, because that’s the only way that — that’s the only thing that you can do.
AMY GOODMAN: Elie Mystal is The Nation’s justice correspondent.