Civil, Reproductive, LGBTQ, Labor Rights & Healthcare All at Stake in Supreme Court Senate Confirmation Battle 

Interview with Marjorie Cohn, professor emerita at Thomas Jefferson School of Law, past president of National Lawyers Guild, conducted by Scott Harris

With the death of Supreme Court Justice Ruth Bader Ginsburg, who for 27 years was a tireless defender of gender, LGBTQ and civil rights, the battle now conjoins disparate groups over President Trump’s nominee, Amy Coney Barrett, to fill RBG’s seat on the high court.

There’s widespread anger at Republican hypocrisy for denying President Obama a hearing on his Supreme Court nominee Merrick Garland in 2016, because Senate Majority leader Mitch McConnell at the time said it was an election year – but is now moving quickly to confirm Coney Barrett even as millions of Americans have already voted.

Additionally, there’s great concern about the extremist views Barrett will bring to the court if confirmed, on issues such as reproductive, civil, LGBTQ and labor rights, environmental and corporate regulation and access to health care. According to a Data for Progress poll, nearly two-thirds of Americans want the Senate to pass pandemic relief, while just one in five think confirming a new justice should be the top priority of lawmakers.

Between The Lines’ Scott Harris spoke with Marjorie Cohnprofessor emerita at Thomas Jefferson School of Law, past president of the National Lawyers Guild and author. Here she talks about Judge Amy Coney Barrett’s judicial record, what if anything Senate Democrats can do to slow down or stop the confirmation process, and options open to rebalance the court if Barrett is confirmed, which would cement in place a 6 to 3 conservative majority for decades to come.

MARJORIE COHN: With Amy Coney Barrett, we would get a very, very radical right-winger for perhaps four decades if she lives into her in her 80s unless — and I know this is something we’re going to talk about — unless the Congress decides to pass term limits so that there isn’t this political game that goes on. If Biden were to win the election — and he needs to win overwhelmingly, I think, to minimize the chances of it being stolen by Trump, and the Democrats take back the Senate — then I think there is a chance that they would expand the number of people on the Supreme Court to try to dilute that very lopsided radical right-wing ideology. And it’s been done before. There is nothing in the Constitution that says that there have to be nine justices on the Supreme Court. There have been fewer, there have been more. If Biden wins and takes office and if the Democrats take back the Senate, they will increase the number of justices on the Supreme Court and set term limits. I think the House of Representatives introduced legislation or passed legislation to decrease the terms — they’re now life terms — and make them 18-year terms and stagger them.

SCOTT HARRIS: Please tell us a bit about Roe v. Wade and also Amy Coney Barrett’s, Trump’s nominee, attitude towards contraception and women’s access to contraception under the Affordable Care Act.

MARJORIE COHN: Amy Coney Barrett called Roe v. Wade a judicial fiat and she wrote that the framework of Roe essentially permitted abortion on demand and Roe recognizes no state interest in the life of a fetus. When she was on the Court of Appeals for the 7th Circuit, she wanted to rehear a case that could limit the right to a pre-viability abortion. She wanted to overturn Supreme Court precedent that allowed states to regulate protesters who block abortion access. She voted to require that parents of girls under 18 be notified before abortions are performed. And, to answer your question about contraception, she opposed access to contraception under the Affordable Care Act as an assault on religious liberty. She is a devout Catholic and in fact, she would be the sixth Catholic on the Supreme Court. (Justice Sonia) Sotomayor is also a Catholic by the way, and she’s quite liberal, but Barrett is a member of a cult called People of Praise.

And she once stated that a legal career is a means to an end. And that end is building the kingdom of God. That’s really her main motivating force here. People of Praise is a cult that demands strict adherence. It is the men that make the decisions. The women go along. Each male member of the cult is assigned what’s called a “head,” a man to make decisions for him. And each woman is assigned a “handmaid.” Now, after “The Handmaid’s Tale” came out, they changed the name because it didn’t sound very good. And during Barrett’s contentious confirmation hearing for the court of appeals in 2017, Diane Feinstein, a Democratic member of the Senate Judiciary Committee confronted her and said, “The dogma lives loudly within you.” In other words, you are going to be motivated by your religious beliefs and may not follow the law. Her religious beliefs and the way she feels about the reason that you have a legal career is to serve the kingdom of God, combined with her disdain for stare decisis, for respect for Supreme Court precedent, make for a lethal combination if she joins the Supreme Court.

SCOTT HARRIS: In your view, do the Senate Democrats have the tools they need to slow down or stop the confirmation process before the Nov. 3rd election? Certainly a monkey wrench has been thrown in to the mix there for Mitch McConnell and the Republican majority in the Senate. And that’s the fact that just in recent days, we’ve learned that three Republican senators have contracted the coronavirus.

MARJORIE COHN: It looked like it was a train that could not be derailed. But I think if the Democrats are willing to play hardball — and it’s not a foregone conclusion that they will — they could slow it down or even stop it. The GOP has a 52 to 48 majority in the Senate and losing these three senators and possibly another one if Mark Kelly is successful in Arizona in defeating Martha McSally, he would actually take over in November. So the Senate Judiciary Committee, which is where this nomination will start and where the questioning would take place, which has a Republican majority needs a quorum and the Democrats could refuse to show up. And even if they did show up, there may not be a quorum because Mike Lee and Thom Tillis, who were members of the Judiciary Committee, two Republicans who have the coronavirus.

So what Mitch McConnell wants to do is to recess for two weeks to give them time to heal. I think that we need to see real backbone from the Democrats to either slow down or completely defeat this nomination is confirmation of Amy Coney Barrett. And it remains to be seen whether they’re up to the task.

For more information and recent articles, visit Marjorie Cohn’s website at marjoriecohn.com.

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