Judge Amy Coney Barret Does Not Think SCOTUS 5-4 Split Decisions Are A Sign Of Political Partisanship

Federal Appeals Court Judge Amy Coney Barrett At Hillsdale College In May 2019

In an interview at Hillsdale College in May 2019, Federal Appeals Court Judge and now Trump’s U.S. Supreme Court nominee Amy Coney Barrett said she does not think the increasing 5-4 split decisions at the U.S. Supreme Court are a sign of political partisanship. This is a very strange assessment given the fact that much of the public angst against the U.S. Supreme Court can be attributed to the increasing number of these 5-4 split decisions between the 5 conservative and 4 liberal justices, which people have reasonably attributed to partisan political differences.

Judge Barrett’s strange position that Supreme Court 5-4 split decisions are not as a result of partisan political differences will certainly draw the attention of Democratic Senators at her confirmation hearings, which are already expected to be the most contentious Supreme Court confirmation hearings ever.

Bottom line folks, with Justice Amy Coney Barrett in the U.S. Supreme Court, Americans better get used to “non-partisan” 6-3 split decisions on ACA, voting rights, DACA, Trump’s tax returns, 2020 election challenges…….. Simply put, get used to “non-partisan” 6-3 split decisions on steroids!!

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Amy Coney Barrett Feared “A Very Marked Shift” In SCOTUS Composition If Hillary Clinton Won In 2016

University of Notre Dame Law Professor Amy Coney Barrett giving a presentation at Jacksonville University On November 3, 2016 , five days before the general elections

An interesting presentation then Professor Amy Coney Barrett gave at Jacksonville University in November 2016, five days before the elections, begs for further scrutiny now that President Trump has formally nominated her to fill the U.S. Supreme Court seat left vacant after the death of Justice Ruth Bader Ginsburg. In her hour long presentation at Jacksonville University, which reasonable people will agree was highly impressive, Professor Barrett delved into a whole host of issues dealing with the U.S. Supreme Court and its Justices. Of particular relevance today, is the fear Professor Barrett expressed of “a very marked shift” in the Supreme Court to the left, were Hillary Clinton to win the presidency in 2016.(see clip below)

Professor Barrett’s concerns in November 2016 are of particular concern today because the “very marked shift” in the U.S. Supreme Court she feared in 2016 has come to pass. The only difference is that the marked shift in the court has been to the right, with Trump as President. More importantly, the very concerns she had about a future President Clinton replacing Justice Scalia with a liberal, is the exact situation we currently find ourselves in, with President Trump getting ready to replace liberal Justice Ginsburg with her–a staunch conservative. Given her fears in 2016, should Trump have nominated someone more liberal to replace Justice Ginsburg? In other words, is Judge Amy Barrett only worried about the U.S. Supreme Court markedly shifting to the left but okay if the shift is to the right?

Specifically, then Professor Barrett argued in her presentation that whoever won the presidency in 2016, who she assumed like many would be Clinton, would have a chance to replace up to four Supreme Court justices, given their advanced ages. Clinton, she argued, would not only fill the vacant Scalia seat with a reliable liberal, tipping the balance of the court leftward, but would also likely replace Justices Ginsburg, Breyer and Kennedy with much younger reliable liberals, essentially turning the U.S. Supreme Court into a reliably liberal court. Trump on the other hand, Professor Barrett argued, would fill the vacancies with a “mixed bag” of justices resulting in a somewhat center-right court but definitely not a far right Supreme Court.

Reasonable people will agree that with the appointments of Justices Neil Gorsuch and Brett Kavanaugh, President Trump has already shifted the U.S. Supreme Court to the right. Trump’s nomination of conservative Judge Amy Barrett to replace reliably liberal Justice Ginsburg will therefore lead to the very “marked shift” in the U.S. Supreme Court that then Professor Amy Barrett feared with a Clinton presidency. The question Democratic Senators need to confront Judge Barrett with at her confirmation hearings, is whether she is now comfortable with the marked shift in the Supreme Court to the right. Should Trump have nominated a Supreme Court justice more in the mold of Justice Ginsburg to prevent the marked shift to the right?

It bears pointing out however that Professor Barrett espoused an interpretation of the role of judges generally, and supreme court justices in particular, that many legal scholars will find very refreshing. She stated very clearly that the role of a judge is not to placate to the partisan political camps but rather to follow the law, wherever it leads. She illustrated her point with Justice Scalia, who sided with the liberal justices time and time again on criminal law issues even though as a conservative, Republican voters expected him to be a “law and order” judge, always siding with law enforcement in criminal cases. Professor Barrett said Justice Scalia did so not because he liked criminals, but because that was what the text of the constitution required him to do. This should be a warning shot to Trump Republicans who are fast-tracking her confirmation in the hopes that she will rubber stamp GOP policy positions at the Supreme Court.

Bottom line folks, as things currently stand, Judge Amy Coney Barrett’s ascension to the U.S. Supreme Court is all but certain. There’s literally nothing Democrats can do procedurally or otherwise, to stop her confirmation to the high court. One only hopes that during her confirmation hearings, Democratic Senators will confront her with tough questions, among them, her fears in 2016 of a “marked shift” in the composition of the U.S. Supreme Court. Specifically, Democratic Senators should ask Judge Barrett why she feared a marked shift of the high court to the left but is now seemingly comfortable with a marked shift to the right, thanks to her confirmation.

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Trump And McConnell “Whitening” Federal Courts

OutfrontCNN recently did a segment about a sitting federal judge in mississippi rebuking Trump’s attacks on the federal judges, especially judges of color, and likening such attacks to racial attacks by the Ku Klux KLan. The judge raised several issues of concern but the one that caught Yours Truly’s attention was his assertion that a staggering 90% of Trump’s judicial picks are White. This is a shocking statistic that we rarely hear from the mainstream media and should certainly be explored further especially as Trump’s enforcer in the U.S. Senate, Mitch McConnell, continues to bend the rules to push through Trump’s judicial picks. The full OutFrontCNN segment is available here but the relevant clip is below

There are already a lot of complaints about how Senate Majority Leader Mitch McConnell is bending U.S. Senate rules to pack federal courts with right wing judges. This troubling revelation that Sen McConnell and Trump are essentially “Whitening” the federal courts instead of making them more reflective the country’s current racial makeup should concern everybody. As Criminal Defense Attorney Joey Jackson, the guest in the OutFrontCNN segment correctly pointed out, “We need a federal judiciary that looks like the populace.”

Bottom line, Mitch McConnell bending Senate rules to pack the federal courts with right wing judges is in itself, very detrimental to the judiciary’s image because people lose respect for a court that is viewed to be rigged/biased. With this new revelation that there’s a racial element to Trump/MitchMcConnell’s court-packing, everyone should be calling for an immediate pause to the judicial selection process until such a time as a respectable bipartisan mechanism for filling judicial vacancies can be put in place. Simply put, McConnell and Trump packing the courts with 90% White right wing damages is doing irreparable damage to the federal judiciary and must be stopped for the court’s sake. This is not a partisan issue

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Trump, The Subject Of Mueller Probe Cannot Nominate A SCOTUS Justice. Can He?


Dem Senator Corey Booker is advancing a novel legal theory(#BookerTheory), a brilliant one as far as Yours Truly is concerned, arguing that because Trump is the subject of an ongoing criminal investigation (TrumpRussia), his nomination of a Supreme Court Justice to replace retiring Justice Kennedy creates an unacceptable conflict of interest. Senator Booker made the argument when he appeared on MSNBC’s Rachel Maddow Show.


According to Senator Booker, this is unacceptable because it boils down to Trump appointing a Supreme Court Justice for the specific purpose of helping him with the TrumpRussia investigation. There’s a very realistic chance that at some point, TeamTrump will challenge an aspect of Mueller probe in federal court, especially a subpoena for his testimony. Such a challenge would most likely end up in the Supreme Court to be adjudicated by Trump’s Supreme Court pick. Senator Booker’s argument is that this creates an unacceptable conflict of interest that may further tarnish the image of the Roberts Supreme Court.

It’s also worth pointing out that no previous U.S. President has nominated a Supreme Court justice while under criminal investigation. This is probably the strongest argument in the #BookerTheory because simply put, we’ve never been here before. The founding fathers never envisioned that someone engaged in or suspected of criminal conduct would ever rise to be President.

The fact that we are in unchartered waters means there is no Supreme Court precedent establishing Trump’s ability to nominate a Supreme Court justice under these circumstances but more importantly, creates a fertile ground for a legal challenge testing Senator Booker’s novel legal theory.

While Dems are engaged in an all out warfare with Republicans over whether Trump’s Supreme Court nominee should be seated before or after the midterms, maybe they should step aside and give serious consideration to the #BookerTheory–whether the ongoing Mueller probe precludes Trump from making the said Supreme Court nomination in the first place. Brace yourselves folks it’s Bush v Gore all over again.

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