Oct. 23, 2020

By Jan Erickson, NOW Government Relations Director

The Republicans’ Sham Process – Final Vote on Oct. 26

Donald Trump’s nominee to the high court, Amy Coney Barrett, sailed through Senate Judiciary Committee hearings earlier this month revealing little about her views on key issues and refusing to provide a solid assurance that she would respect judicial precedence – or even ‘super-precedence.’ Nor would she recuse herself from voting on any question that arises in the wake of what might be a tumultuous election.

The prospect of Judge Barrett’s consolidation of an ultra-conservative 6-3 Supreme Court majority marks a troubling turning point in our history. It threatens every equality gain made over the last 60 years. (Read about Barrett’s record of anti-equality positions in this report.)

Passed “Favorable” Out of Committee – The Senate Judiciary Committee voted to pass the nominee out of committee today with a “favorable” recommendation and all 12 Republican members voting. The rules call for at least two members of the minority party to be present for the vote, but Democrats boycotted the vote. Committee chair Lyndsey Graham (R-SC) proceeded regardless

The National Organization for Women opposes the confirmation of Judge Amy Coney Barrett as, by her record, she stands against everything we value about equal treatment and equal opportunity. Her likely confirmation and addition to the Court will further the view that the U.S. Supreme Court is neither balanced nor unbiased, and certainly not independent. Judge Barrett is a throwback who – with her five conservative  colleagues on the Court — will cause real damage to a progressive political agenda that this country needs to effectively deal with stark social and economic disparities.

Will Barrett Vote to Overturn Election? The Republican elephant in the room throughout the three days of hearings was the concern that Barrett – rather than recusing herself – would vote to favor President Trump. Trump has announced that he wants a 6-3 court to be able to rule on his promised challenge to the election outcome and has been trashing mail-in balloting as prone to fraud for months. Democrats are especially fearful that an election result could be easily overturned by a biased Supreme Court, remembering what happened in the painful Bush-Gore 2000 hanging chad fiasco.

Majority Leader Mitch McConnell (R-KY) and Judiciary Chair Lindsey Graham (R-SC) have pushed through her nomination at break-neck speed on the eve of an election that the Republicans may well lose. A majority of the public has said that the Senate should wait to consider a next justice. McConnell’s refusal to pass another desperately needed pandemic relief package is beyond the pale. Currently, huge numbers of out-of-work Americans face eviction, have run out of financial resources and face serious challenges to feed their families. Additionally, the Majority Leader has refused to take up any serious legislation addressing racial justice.

Barrett is the polar-opposite of Justice Ruth Bader Ginsburg, a champion of equality, women’s rights and a committed protector of the environment, who during her last days asked that the Senate wait until a new administration to consider her replacement. Within an hour following the announcement of the beloved justice’s passing the Republican leadership announced they would proceed with considering a replacement.

Opposition to Barrett is Intense – The final floor vote on the nominee will take place Monday evening, Oct. 26. Opposition to Judge Barrett from Democrats, civil rights groups, women’s rights organizations, LGBTQIA+ advocates, environmental organizations, labor unions, health care advocates and countless others is intense.  Rallies, petitions, mass emails and calls to senators are continuing apace even though Barrett’s confirmation looks assured, with at least 51 votes.

Barrett Would Solidify a Regressive Majority – Barrett, an ultra-conservative acolyte of the late Justice Antonin Scalia and an ‘originalist’ in her interpretation of what the Constitution means, will move the existing conservative majority further to the right, to 6 – 3. Barrett’s professed ‘originalist’ and “textualist” interpretation of the law is seen as a thin cover for conservative jurists wanting to reverse a liberal social agenda and will act in an unconstrained way to overturn the results of legislative majorities — as did Justice Scalia.

Equality Gains Face Serious Challenges – Barrett appears groomed to overturn many of the important equality gains of the last 60 years, including access to health insurance coverage though the Affordable Care Act, affordable birth control, a right to abortion care, same sex marriage, and protection of LGBTQIA+ rights, strengthened consumer protections and stronger environmental protections, among other key advances. Additionally, we can expect her to turn a blind eye – as have conservative jurists and lawmakers — to voter suppression tactics and to Republican gerrymandered redrawing of Congressional districts – set to happen when the 2020 Census data is released.

During the hearings, a well-rehearsed Judge Barret kept polite composure throughout the three days of grilling by Democratic members of the Senate Judiciary Committee. Following lockstep behind the Majority Leader, the Republican senators tossed Judge Barrett a series of softball questions, all designed to make her look moderate and reasonable. For many important questions about policy and the law, the nominee said she would not answer directly.

Global Warming “In Dispute” — The nominee shocked many when she described what is settled science of climate change as still “in dispute.” We can expect to see a series of rulings that support attacks already made by Donald Trump on clean air and water, pristine wilderness, renewable energy, and others.

Ethically-challenged Republican Senators – This action coming so close to a presidential election is particularly offensive when one considers thatthe Republicans stole a Supreme Court appointment from President Obama when he nominated Judge Merritt Garland, Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, more than seven months before the general election in 2016. The sham process of moving Amy Coney Barrett quickly through what should be a more thorough and thoughtful process is an indication of how ethically challenged are Republican senators.

Alaska Sen. Lisa Murkowski ( R ) and Maine Sen. Susan Collins ( R ), who is in a tough re-election campaign, have said that they would not vote on a nominee until after the election. Though, recently Sen. Murkowski was heard saying that she might change her mind.

Barrett as Member of a Conservative Religious Sect – Activists have been cautioned not to criticize Amy Coney Barrett’s religion; she is Catholic and member of a small sect of charismatic Christians called People of Praise, which emphasizes strict gender roles with women being subservient to men and espouses other socially conservative views. Ms. Barrett had a special role in the sect as a “handmaid”, in which she schooled young women on how to be good wives, mothers and homemakers. The sect’s leaders changed the name from handmaids to “women leaders’ when it appeared as an embarrassing echo of the subjugated women in writer Margaret Atwood’s classic, The Handmaid’s Tale. Women, otherwise in the People of Praise community, do not share any other leadership roles equal to those reserved to men. Much about this sect and Amy Coney Barrett’s involvement has been removed from websites run by the sect.

We do question the nominee’s religious views as, undoubtedly, they color the values upon which she bases her judicial opinions.

Everyone in this country is free to choose a religious belief…or not. Since religious beliefs often influence social and political views, it is legitimate, in our view, to call into question Amy Coney Barrett’s ideas about women’s equality, LGBTQIA+ rights, reproductive rights, relationships between the sexes, and many other issues of concern. To us, Judge Barrett is out of step with the rest of the country, if not the developed world. Barrett says her personal views do not get in the way of her judicial determinations, but we find that a dubious claim.

An organization NOW has worked with, Catholics for Choice, responded to that concern with this statement,

 [calling] on the U.S. Senate to safeguard the fundamental freedoms of all Americans, by ensuring that any nominee to the Supreme Court is willing to apply the law impartially and equitably, and rejects discrimination based on religion. Based on her public statements and judicial record, the nomination of Judge Amy Coney Barrett does not meet this critically important standard.

Protecting the Patriarchy –  From our feminist perspective, Amy Coney Barrett is the female justice that will obey what the white male conservatives on the Court want in court rulings that will protect the wealthy, powerful and the system that sustains the men in charge. This is the predictable outcome of millions of dollars of dark money that has groomed nominees for the federal judiciary over the last several decades and sustained a steady attack on progressive initiatives.

With Barrett’s confirmation, the Supreme Court will no longer have any semblance of a balanced and fair arbiter of the law.

During the hearings, Rhode Island Sen. Sheldon Whitehouse (D) devoted his allotted time to outlining for the committee and the viewing public how deep-pocketed conservative and libertarian interests have reshaped the judiciary. They have steadily advanced strategic challenges to abortion rights, firearms regulation, consumer protection, attacks on the Affordable Care Act, labor unions, affirmative action and voting rights through the courts. The work of such organizations as the Federalist Society and the Judicial Crisis Network, with dozens of right-wing legal advocacy associations who are paid millions in dark money to advance cases, has also heavily influenced the selection and promotion of judicial nominees, including Trump appointees of Neil Gorsuch and Brett Kavanaugh. A leader of the Federalist Society has been a one Leonard Leo who has also served as an unofficial judicial adviser to Donald Trump.

Sen. Whitehouse’s information is based on findings of investigative reporting in 2019 by The Washington Post and on further reporting by the Democratic Policy and Communications Committer (DPCC). As much as $250 million has been raised by these “non-profit” organizations, but under IRS regulations their sources of that money do not have to be disclosed. This funding has successfully advanced uber-conservative judicial nominees and produced at least 80 key court rulings that implicate Republican big donor interests.

A report prepared for the Senate Democrats in May, “Captured Courts – The GOPs assault on the Constitution, Our Independent Judiciary, and the Rule of Law, (linked below) lays out the recent history of how the Conservative Movement has rewritten federal law to favor the rich and powerful.

The record of Judge Barrett faithfully reflects the views and values of the wealthy and powerful in this country; read on.

Record of Supreme Court Justice Nominee Amy Coney Barrett

Compiled by Stephanie Glascock, NOW Government Relations Intern

Praised as someone dedicated to upholding law, Barrett has been presented by Republicans and the Trump Administration as a highly qualified justice with a long record of experience. However, that very record exemplifies a long history of undermining judicial precedent, overturning crucial protections, and promoting discrimination. Her previous rulings and past statements on certain cases threaten healthcare access, reproductive rights, civil rights, and other critical legal protections.

Judicial Precedent – Barrett’s record exemplifies her tendency to value ideology over law. She has called the Miranda doctrine an example of “the court’s choice to over-enforce a constitutional norm,” disregarding constitutional protections. She additionally has been critical of stare decisis (a long held legal principal of following judicial precedent). Undermining this precedent means that Barrett could overturn watershed civil rights cases ruling including Brown v. Board, Griswold v. Connecticut, Roe v. Wade, and Obergefell v. Hodges.

Healthcare – Barrett passed Trump’s litmus test for gutting the ACA, exemplified by her criticism of Chief Justice Robert’s decision upholding Congress’s authority to enact portions of the ACA. Barrett also wrote favorably of the dissent in King v. Burwell where the Court affirmed tax credits for millions of families. In speeches and statements, she’s argued that the ACA is unconstitutional, indicating that were she to be confirmed before November 10th when the ACA goes in front of the Supreme Court, she would rule against the ACA, hindering millions of Americans’ access to healthcare.

Reproductive Rights – Starting with the belief that Roe v. Wade was a “judicial fiat” that ushered in abortion on demand, Barrett is a direct threat to reproductive freedom in the U.S. Not only has her role as previous President of Americans for Life and membership in Notre Dame’s Faculty for life show her commitment to the so-called pro-life movement, her rulings in the Seventh Circuit are concrete proof that she values upholding the tenets of the pro-life movement above the rule of law. In cases regarding reproductive justice, she’s wanted to overturn precedent permitting the regulation of protestors at abortion clinics, criticized the ACA for making employers cover contraception in their health insurance, and would’ve upheld an Indiana law requiring parental notification in cases of minors receiving abortions.

Discrimination in The Workplace – One of the most publicized disapprovals of Barrett’s record regarding civil rights was her ruling in EEOC v. Autozone where she ruled in favor of a company that segregated its employees by race. The Chief Judge of the Seventh Circuit remarked that Barrett was supporting a “separate but equal” arrangement, thereby promoting discrimination. Barrett also sided against an employee who was fired in retaliation for his for complaints of racial bias in Smith v. Illinois Department of Transportation. She has similarly ruled to allow companies to discriminate applicants based on age, weaken mechanisms that prevent companies from financially abusing their customers, and let companies get away without paying their employees overtime. Her record illustrates her predisposition to side with employers over employees, emboldening discrimination and abuse instead of protecting workplace rights.

Civil Rights – Barrett has also made it easier for students who committed sexual assault to sue schools on the basis of sex discrimination, voiced quarrels over Obergefell v. Hodges, and stated that transgender individuals do not deserve protections from discrimination under federal law. In responding to questions about marriage equality, Barrett has frequently used the words “sexual preference” when referring to sexuality, indicative of her beliefs that sexuality is a choice and not an inherent aspect of someone’s identities. Her seat on the Court would introduce further marginalization and discrimination for women and the LGBTQ community.

Her record of undermining widespread rights gives a glimpse into how she would rule on the Court. Not only does Barrett hold beliefs that endanger protections, her record illustrates a neglect for the rule of law and an indication that her own personal convictions are above the rights of American citizens. Her presence on the Court would erode existing protections and undermine the Court as we know it.

# # #

“Judge Barrett’s Originalism: Conservative Politics All the Way Down,” by Eric J. Segall, Ashe Family Chair Professor of Law, Georgia State University College of Law, American Constitution Society Expert Forum, Oct. 21, 2020, https://www.acslaw.org/?s=Amy+coney+Barrett&x=0&y=0

“Captured Courts – The GOP’s Big Money Assault on The Constitution, Our Independent Judiciary, and the Rule of Law,” prepared by the Democratic Policy and Communications Committee, Sen. Debbie Stabenow, Chair, May, 2020


The Philosophy That Makes Amy Coney Barrett so Dangerous, by Erwin Chemerinsky, Oct. 21, 2020, https://www.nytimes.com/2020/10/21/opinion/supreme-court-amy-coney-barrett.html

Sheldon Whitehouse presentation on Dark Money, MSNBC, Rachel Maddow, https://www.msnbc.com/msnbc/watch/sen-whitehouse-gives-presentation-on-dark-money-influence-on-supreme-court-nomination-93756485711

A conservative activist behind-the-scenes campaign to remake the nation’s courts, by Robert O’Harrow Jr. and Shawn Boberg, May 21, 2019, https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/

Amy Coney Barrett served as a ‘handmaid’ in Christian group People of Praise, by Emma Brown, Jon Swaine and Michelle Boorstein, Oct. 6, 2020,https://www.washingtonpost.com/investigations/amy-coney-barrett-people-of-praise/2020/10/06/5f497d8c-0781-11eb-859b-f9c27abe638d_story.html

Leadership Conference on Civil and Human Rights, Letter to Senators, October, 2020 – Oppose The Confirmation of Amy Coney Barrett to the Supreme Court of the United States, unpublished.

Report on the Nomination of Amy Coney Barrett, prepared by the Alliance for Justice, Oct. 10, 2020, https://www.afj.org/wp-content/uploads/2020/09/Barrett-Report-10.9.20-1.pdf

Lawyers Committee for Civil Rights Under Law Opposes Nomination of Judge Amy Coney Barrett Based on Record on Race and Civil Rights, by Ian Weiner, Oct. 13, 2020, https://lawyerscommittee.org/lawyers-committee-for-civil-rights-under-law-opposes-nomination-of-judge-amy-coney-barrett-based-on-record-on-race-and-civil-rights/