Below is my column in The Hill on calling Justice Amy Coney Barrett to apologize or be charged. The call to decline indicates demands and threats that are becoming more awkward by the day. Regardless of whether judges are added or charged, Democrats give in to the same 30 percent of angry and increasingly irrational voters in their base. It is about the total lack of responsible voices by the party to counter this impetus for retaliation or to defend the establishment of the court. Instead, former Vice President Joe Biden’s statement that the court has “gotten out of hand” means that many Democrats want to beat either the court or its members.
Here is the column:
Court confirmations are more of a solid affair in the Senate, and the rhetoric ranges from quiet regrets to low-key partying. This week, however, the language had more of a syndicate than senate tenor. Richard Blumenthal warned of “consequences” if his colleagues dared to confirm in a notice threats to amend the Supreme Court. The message was clear to vote “no” or the Supreme Court will get it.
Chuck Schumer, Chairman of the Senate Minority, caught Tony Montana with his “Scarface” version of “Wanna Play Hard? Say hello to my little friend. “He threatened to use the potential Democratic majority to strip the rights of the Republicans, whom he declared” forfeited “in the confirmation.
Democrats feel disrespected and threaten retaliation for changing the Senate or the Supreme Court. Least of all, however, was the idea of bringing charges Amy Coney Barrett after she takes her place. This option was raised by columnist Norman Ornstein, who wrote that if she “immediately votes for electoral suppression” after joining the Supreme Court, “should be swiftly indicted” because President Trump “had asked her openly.” to act to tip the scales choice. “
It doesn’t matter that Barrett denied such a conversation and that no one has any idea how she would vote on voting procedures that haven’t even been filed. Ornstein built on demands from various senators that Barrett promised to withdraw from any election disputes. Others have called for their rejection on pending cases, such as the challenge to the Affordable Care Act, due to be negotiated next month. After Barrett refused to discuss her personal views on the environment, others still called for her to forever reject all climate change-related cases.
The Supreme Court has been asked to block an extension of the postal vote in Pennsylvania, and a party called on Barrett to withdraw from the case. The demand is legally and logically absurd. The judges are for the most part their own judges in denial. While Blumenthal requested confirmation in her hearing that she must reuse herself, that would raise concerns about inappropriateness and political influence. Democrats demanded that she move away without any legal basis for rejecting. Now they are trying to burden them with this “reuse or charge” ultimatum.
As they hold the highest judicial positions, the Supreme Court justices do not undergo review by judges of lower courts for disputes. It is rare for judges to withdraw from merit cases, even though the nine judges for the 2019 term have been dismissed 145 times from review with possible argumentation cases. This happens for a variety of reasons, from financial interests in the underlying claims to personal interests in the parties or litigators. New judges are most likely to be reused in merit cases due to their involvement in litigation or past decisions, as Justice Elena Kagan did after serving as attorney general under President Obama.
The rejection standard is contained in the Federal Code, which lists reasons such as personal bias or prejudice, prior representation or financial interests of a judiciary or her spouse. Democrats could not find a direct conflict and instead expect a weak claim of conflict occurring, but this is based on Barrett’s being upheld prior to the election.
The rejection claim is opportunistic. It’s also turning the narrative around. Democrats falsely accused Barrett of being nominated to crush the Affordable Care Act. The case concerns the severability clause to remove a provision such as the no longer existing individual mandate from the rest of the law in order to preserve it. No credible legal scholar believes the Affordable Care Act will be struck down anytime soon, with at least two Conservative judges likely to vote in favor of separability. In fact, the law regarding the severability clause is far more likely to be enforced unanimously than it is to be put down.
There is absolutely no indication of how Barrett would decide on this matter. However, the Democrats confirmed all of Trump’s “plan” to take her to the Supreme Court to crush the law and showed the oversized photos of the alleged victims at the hearing. The real reason for occupying this seat is obvious. Republicans wanted to do this in case they lost the White House or the Senate, and they knew that.
None of this has to do with a rejection of election cases for Barrett. The assertion of a conspiracy theory based on it is not a legal basis for refusal. It’s an insult disguised as a demand. For people like Ornstein, it’s also an excuse for a “reuse or indictment” threat. He knows that no lawyer would withdraw from potential election cases without a certain legal basis. It would also put the Supreme Court at risk of binding some of the most important decisions in history.
However, that is not the point. With the demand, which Barrett is unlikely to comply, the Democrats create yet another excuse for abusive retaliation. Just as Schumer claims permission to deprive a future Republican minority of powers or privileges under a democratic majority, others give permission to indict a judiciary for refusing to give in to crude political demands.
Democrats are not talking about using their Senate majority in the same way if a Supreme Court position becomes vacant, which would be fair. They talk about breaking Senate rules, attacking the Supreme Court, or indicting Barrett when the victims’ license won. With the last nomination, Joe Biden stated that the Supreme Court had gotten out of hand. Now something or someone is being hit.
Jonathan Turley is Shapiro Professor of Law of Public Interest at George Washington University. You can find his updates online at JonathanTurley.