TO: Interested Parties

FROM: Kyle Herrig, President of Accountable.US

DATE: October 23, 2020

RE: What’s at Stake in Amy Coney Barrett’s Rushed SCOTUS Nomination


 Following the passing of Supreme Court Justice Ruth Bader Ginsburg, the White House didn’t even wait 24 hours before calling Seventh Circuit Judge Amy Coney Barrett and asking her to meet with President Trump and his staffers to offer her the nomination. Then, despite a modern-day average of about 70 days from nomination to final Senate vote, it will have taken Senate Republicans what will likely be just 35 days in total to confirm her nomination in the full Senate. Not to mention — the vote on Barrett will happen just eight days before Election Day and after more than 40 million people have already voted.

While her volume of decisions on the Seventh Circuit is thin and she has not released nearly enough for the almost 15 years she worked at Notre Dame, what we do know about Barrett is that she sides with big business over working people and that she will be a danger to families and small businesses.  

This hijacking of democratic norms and processes in what’s supposed to be the “the world’s greatest deliberative body” is robbing the American people of their right to choose who makes the laws governing this country and is putting their very lives on the line.

FLAWED ENIGMA OF A NOMINEE 

Barrett has a record of siding with corporations over people: In a comprehensive analysis of Amy Coney Barrett’s cases and rulings from her time on the Seventh Circuit Court of Appeals, Accountable.US found that Barrett overwhelmingly sided with corporations while ruling against consumers, workers, and immigrants. A closer look at the details of Barrett’s rulings paint an even worse picture: 

  • Protecting those accused of discrimination: During her nomination hearings, Barrett repeatedly tried to claim that she thinks “discrimination is abhorrent.” But the A.US analysis found that she consistently sided against workers and in favor of those accused of discrimination.
     
  • Protecting police over those alleging harm: Barrett historically ruled in favor of policing entities and law enforcement, and in one particularly horrifying case, ruled to grant qualified immunity to a police officer who contributed to the death of a Black teenager under his custody who had repeatedly claimed he could not breathe.
     
  • Protecting corporations over consumers: During the hearings, Barrett tried to suggest that she believed it was dangerous for the courts to act as economic policymakers. But her record shows that she sided against consumers in favor of corporations in 78% of relevant cases.
     
  • Failing to protect immigrants: In just one of her myriad moments of obfuscation during the hearings, Barrett refused to reflect on the immorality of child separation — a troubling red flag from a nominee who inordinately sided against immigrants in cases before the 7th Circuit. 

Barrett has tried to hide what record she does have: As Barrett’s nomination advances, much remains unknown to lawmakers and the public about her record. And a week’s worth of hearings shed very little light on the answers senators sought from the nominee.   

During the hearings, Barrett went to great pains to avoid answering lawmakers’ crucial questions directly, leaving them and the American public in the dark about her stances on everything from health care to family separation to a president’s ability to unilaterally delay an election. Barrett doubled down in her evasion strategy in her follow-up answers to senator’s questions for the record. Out of 435 questions lawmakers asked: 

  • Barrett said she could not opine on relevant questions 105 times.
  • Barrett said it would not be appropriate for her to offer her stance on a question 63 times
  • Barrett referred to already provided responses rather than share new insights 254 times
  • Even as Barrett has refused to call for the release of records from her 15-year career at a religiously affiliated higher education institution, the Senate has pressed on in rushing her nomination through — with little attention or care paid to the gaping holes in her record.  

Questions about Barrett’s record abound: Accountable.US released a database, “The Barrett Files,” which catalogues the more than 600 cases Barrett ruled on in her brief, less than three year judicial career on the Seventh Circuit that have not been properly vetted, to enhance transparency around her record. With so many cases to consider, these horrific examples of Barrett’s harmful judgement are likely just the tip of the iceberg. The database includes cases in which Barrett: 

  • Ruled in favor of Wisconsin Republicans who stripped the governor’s power during a lame duck session. 
  • Wrote the majority opinion ruling against a woman whose IUD broke inside her body — a problem reported to the FDA more than 1600 times. 
  • Voted to deport a man whose mother is a U.S. citizen due to an odd technicality — even though the man had lived in the United States for 30 years. 
  • Voted to overturn a ruling to award damages to a survivor of sexual assault who was repeatedly raped by a correctional officer while she was incarcerated.

REPUBLICAN SENATE’S PRIORITIES ARE WAY OFF

Americans are suffering: As Barrett is rushed through Senate approval processes amidst a surge in COVID-19 cases, working Americans and mom-and-pop shops across the country are hurting without additional stimulus relief. In the past week, another 787,000 Americans joined the unemployment ranks, bringing the number of workers drawing unemployment benefits to a staggering 8.3 million. While the Trump recession continues with no stimulus bill in sight, workers are facing a second wave of layoffs and are at risk of missing out on state unemployment benefits. Non-white communities are disproportionally affected by the recession, with Black women recovering an only 34% of the jobs they have lost, while for white women, it’s 61%. And, the country’s true unemployment rate — defined as those who do not have a full-time job that pays a living wage — is 26.1% for all Americans and a staggering 59.2% for Black Americans. Ensuring Americans continue to reel from the pain the pandemic has inflicted, the Centers for Disease Control and Prevention’s (CDC) limited eviction moratorium expires in January with up to 8 million tenants facing eviction filings — compared to 3.6 million cases in a typical year. The CDC’s temporary moratorium is facing multiple legal challenges, threatening millions of rentals who are late or missing rent due to unemployment or a lack of federal and state aid.   

Small businesses need help: It’s been over two months since the flawed Paycheck Protection Program (PPP) stopped accepting applications and Senate Republicans have yet to introduce a new data-driven and transparent program that ensures aid reaches the country’s most vulnerable communities. In 2020 alone, an estimated 4 million small businesses could be forced to permanently shut down. According to a new Main Street Alliance and Color of Change poll of small business owners, “only 40% of Black respondents said they could last more than six months, compared with 46% of Asian respondents, 48% of Latinx and 55% of white respondents.” While Trump and his Senate allies halt relief talks in favor of rushing through their radical Supreme Court pick, about $259 billion allocated to the Fed from the CARES Act to support the central bank’s emergency lending programs sits untapped as small businesses shutter without additional relief.

WHAT’S AT STAKE 

Affordable health care: Barrett has strongly criticized both major decisions upholding the Affordable Care Act (ACA). Health care for more than 20 million people and protections for more than 133 million people with preexisting conditions — including the seven million people who have had COVID-19 — are on the line. On top of it all, COVID-19 cases are on the rise. In the past two weeks, 39 states saw hospitalizations due to the coronavirus rise, and 14 states set hospitalization records. One health expert even suggested that the U.S. could be coming into “the worst period during this epidemic.” The nation’s health and well-being are at stake. Americans cannot afford to confirm a nominee hostile to affordable and accessible health care in the midst of a deadly pandemic that, due to the Trump administration’s mismanagement, appears to be getting worse, not better. 

Reproductive rights: Despite her attempts to muddy the waters during her confirmation hearing, Barrett’s views on Roe v. Wade and reproductive health care access are very clear — and deeply troubling. Everything from the right to abortion to access to birth control to IVF are on the line, with people of color and low-income individuals at particularly high risk of losing access to essential health care procedures to which they have rights.

Protections for LGBTQ people: Just days before the first of Barrett’s nomination hearings, Justices Clarence Thomas and Samuel Alito issued an opinion seemingly questioning the court’s decision in Obergefell v. Hodges — and by extension, the right to same-sex marriage. Given her history, including accepting as much as $4,200 from the hate group Alliance Defending Freedom, Barrett’s views may fall concerningly in line with Thomas and Alito’s thinking.  

Environmental protections and climate health: Barrett refused to answer questions about the climate crisis both in the hearing and in written responses to questions from committee members, illogically justifying her non-answers based on the court’s previous suggestion that climate change is a ‘controversial subject’ and ‘sensitive political topic.’ The future of our planet is on the line, but Barrett’s non-answers and deep ties to the oil and gas industry, including to oil giant Dutch Royal Shell Oil, several of its affiliates, and its powerful lobby association, put several precedent-setting pending climate change cases in serious limbo. Barrett’s anti-environmental record and corporate favoritism affirm her climate change denial — including cases where she ruled that citizens do not have standing to file environmental lawsuits.

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