Supreme Court Justice Ginsburg dies

[TheVat]

https://www.nytimes.com/2020/09/18/us/r ... -dead.html

WASHINGTON — Justice Ruth Bader Ginsburg died on Friday of “complications of metastatic pancreas cancer,” the Supreme Court announced.

“Our nation has lost a jurist of historic stature,” Chief Justice John G. Roberts Jr. said in a statement. “We at the Supreme Court have lost a cherished colleague. Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her — a tireless and resolute champion of justice.”

The development will give President Trump the opportunity to name her successor, and Senate Republicans have promised to try to fill the vacancy even in the waning days of his first term. The confirmation battle, in the middle of a pandemic and a presidential election, is sure to be titanic.

In 2016, Senate Republicans refused to consider President Barack Obama’s nomination of Judge Merrick B. Garland, saying that holding hearings in the last year of a president’s term would deprive voters of a role in the process.

Senator Mitch McConnell of Kentucky, the majority leader, led the effort to block Judge Garland’s nomination. But he has said he will press to fill any vacancy that might arise in the last year of Mr. Trump’s first term.

Mr. McConnell and his allies say the two situations are different. Where one party controls the Senate and the other the presidency, as in 2016, they say, vacancies should not be filled in a presidential election year. Where the same party controls both the Senate and presidency, they argue, confirmations may proceed.

Democrats say this is hairsplitting hypocrisy that damages the legitimacy of the court. But they may have little practical power to stop a third Trump nominee after changes in Senate rules on filibusters on nominations. All it takes now is a majority vote to confirm judicial nominees.

[TheVat]

(removes admin/moderator hat, badge, and tool belt)

Damn.

Damn!

She hung in there as long as she could, and it was quite a struggle the past couple years. I'm fairly sure she would have retired earlier, had the times been different and American jurisprudence and the rule of law not so imperiled. I am very grateful for her decades of stellar public service.

[Serpent]

It was very wrong of her to lull us into a false sense of her immortality.
but, but .... what now? This:

The development will give President Trump the opportunity to name her successor, and Senate Republicans have promised to try to fill the vacancy even in the waning days of his first term.

??? 'first term'??? Wash that editor's keyboard with Lysol!

[Forest_Dump]

Yeah, my mind is blown by the implications. This will give a huge boost to his base and his campaign. And, of course, we can predict the implications for things like Roe vs. Wade, gay rights, religious freedoms, native treaty rights, environmental impacts, etc. It's huge. The consequences of being able to get a third hard-right candidate on the bench tops pretty much everything else that has happened over the last four years.

[toucana]

Amy Coney Barrett on Originalism:

"That means that I interpret the Constitution as a law... I understand it to have the meaning that it had at the time people ratified it. That meaning doesn't change over time and it's not up to me to update it or infuse my policy views into it."

Hillary Clinton on Amy Coney Barrett:

At the time the Constitution was ratified, women couldn't vote, much less be judges.

https://twitter.com/HillaryClinton/status/1316407020740722688

[TheVat]

In one line, Hill neatly captures the central argument for Living Document and contra Originalism.

Keep that white cowl in place, Amy.

[edy420]

Its a sad day, when any loved one passes. My condolences.

In one line, Hill neatly captures the central argument for Living Document and contra Originalism.

Keep that white cowl in place, Amy.

Ive been skimming the hearings. Seems like most the senators are happy with Amy. Many of them defending her.

With how well the process is going, I have to ask. Is most of the disdain, solely because Trump nominated her?

"Democrats want to imminently distract from the fact that you are qualified" - Mr Grassley to ACB
(Literally the quote I heard while typing this post)

[toucana]

The other day Amy Coney Barrett was unable to name the five freedoms protected by the First Amendment of the US Constitution when invited to do so during her confirmation hearings.

https://www.dailykos.com/stories/2020/10/14/1986503/-Amy-Coney-Barrett-is-unable-to-name-the-five-freedoms-protected-by-the-First-Amendment-They-are

The real gem was that this question was supposed to be a softball opener that was posed by a friendly Republican Senator called Ben Sasse (R-NE), and she butchered the answer so badly that she couldn’t even figure it out with the help of a finger-arithmetic enumeration.

Her mind appeared to be as blank as the notepad she had proudly held up in the air not long before to indicate that she wasn’t following a script.

For reference:

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

https://constitution.congress.gov/constitution/amendment-1/

[toucana]

On the more general topic of Amy Coney Barrett's suitability and qualifications to become a Justice of the SCOTUS, the following hypotheticals may be of interest.

Q.   Ms. Barrett you have some impressive academic credentials.  But you recognize that you have a pretty thin resume for the job you are seeking, right?
No.

Q.  Justice Kagan argued 6 cases before the Supreme Court.  Justice Roberts argued 39 cases before the Supreme Court.  Justice Alito argued 12 cases before the Supreme Court. How many have you argued?
None.

Q.  Before being appointed to the Supreme Court, J. Sotomayor served 5 years a a federal district judge and then about 10 years as a 2d Cir appellate court judge.  Justice Alito served about 15 years as a federal appellate judge.  Justice Gorsuch was a federal appellate judge for 11 years.  RBG was a federal appellate judge for 13 years. David Souter had had seven years of judicial experience at the appellate level, four years at the trial court level, and ten years with the Attorney General's office. How many years have you served as a judge?
Less than 3 years.

Q.   I understand you have been a law professor.  Elena Kagan was the Dean of Harvard Law School.  Have you ever been the head of a law school?
No.

Q.  Justice Steven Breyer was a Harvard Law School professor.  While there he wrote the leading textbook on Administrative Law.  Have you ever authored a textbook?
No.

Q.  Justice Breyer also previously worked as a senior counsel in the DOJ’s Antitrust Division and as special assistant to the Assistant Attorney General, and as chief counsel to the US Senate Judiciary Committee, among other appointments.  Have you ever served in any such government positions?
No.

Q.  Brett Kavanaugh worked as a counsel to a Special Prosecutor and as an assistant counsel to President Bush.  John Roberts was a special assistant to the US Attorney General and later an associate White House Counsel and later a Deputy Solicitor General.  Justice Gorsuch was the Principal Deputy to the Associate Attorney General.  Have you ever served in such or similar capacities?
No.

Q.  Brett Kavanaugh was a partner at the international law firm Kirkland Ellis.  John Roberts was a partner and head of the Supreme Court practice at the prestigious firm Hogan & Hartson.  Have you ever been a partner at a law firm?
No.

Q.  Sonia Sotomayor was an assistant district attorney in NYC.     
Samuel Alito was an Assistant US Attorney for NJ.  Have you ever been a prosecutor?
No.

Q.   David Souter served as a state Supreme Court justice.  Sandra Day O’Connor served on a state Court of Appeals, and was also Majority Leader in the Arizona State  Senate.  Do you have any state Supreme Court or State legislative experience?
No.
 
Q.  Thurgood Marshall founded the NAACP Legal Defense and Educational Fund, and personally argued Brown v. Board of Education (!)  Both he and RBG innovated sepate civil rights litigation strategies that changed the face of American law and society.  Ever done anything like that?
No.

https://www.dailykos.com/stories/2020/10/13/1986361/-Ah-too-late-I-guess-and-I-should-have-written-this-before-about-Nominee-Amy-Coney-Barrett

[TheVat]

With how well the process is going, I have to ask. Is most of the disdain, solely because Trump nominated her?

No. It's because she is a constitutional Originalist. She has little regard, as she has openly stated in law journals and elsewhere, for the principle of stare decisis that is a fundamental and stabilizing aspect of American law. Certain past high court decisions have set precedents such that they are called landmark decisions, which then become a part of our settled law. Though they are not binding in the way that acts of Congress are, the honored principle of stare decisis is that all future interpretations of law will be in accord with that landmark interpretation. Without stare decisis, a justice can ignore such precedents and go back to the Constitution as it was in a prior century -- for example, to a time when women and blacks were not allowed to vote. (fortunately, Constitutional amendments were written and ratified to guarantee voting rights to those groups)

[toucana]

Supreme Court nominee Amy Coney Barrett has been accused of "unconscionable cruelty" by a watchdog group over her role in an appellate court decision overturning a district court which found a Wisconsin county liable for millions in damages to a woman who alleged she had been repeatedly raped by a jail guard.

https://www.alternet.org/2020/10/watchdog-group-accuses-amy-coney-barrett-of-unconscionable-cruelty-in-teen-rape-case/

"After a 19-year old pregnant prison inmate was repeatedly raped by a prison guard, Amy Coney Barrett ruled that the county responsible for the prison could not be held liable because the sexual assaults fell outside of the guard's official duties. Her judgment demonstrates a level of unconscionable cruelty that has no place on the high court," Kyle Herrig, president of the progressive watchdog group Accountable.US, told Salon. "The only thing more concerning than the rush to confirm by Senate Republicans is what we are learning about Amy Coney Barrett's extremist record. It is hardly surprising that she has dodged question after question during her testimony."

Barrett was one of the three judges on a Seventh Circuit Court of Appeals panel which reversed a $6.7 million verdict against Milwaukee County in 2018 after a corrections officer was charged with repeatedly raping a pregnant 19-year-old inmate.

Part of her argument related to a legal doctrine called Respondeat Superior commonly used in the law of tort.

https://www.law.cornell.edu/wex/respondeat_superior

It holds an employer or principal legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope of the employment or agency.

"Barret’s decision shows judgement unbecoming a human, let alone a supreme court justice".

https://www.dailykos.com/stories/2020/10/17/1987256/-Watchdog-group-accuses-Amy-Coney-Barrett-of-unconscionable-cruelty-in-teen-rape-case

[TheVat]

What's odd is the Barrett affirmed Respondeat Superior in another case that was quite similar. This inconsistency from a jurist on a point of law would, one hopes, lead the Senate to try and find out why Barrett gave two such different opinions on Respondeat Superior.