THE FEDERALIST SOCIETY’S AMY BARRETT, TRUMP, THE GOP, THE CONSTITUTION AND SCOTUS

 

 

The death of Supreme Court Justice Ruth Bader Ginsburg, the feminist and liberal icon, less than two months prior to the 2020 election, provided a unique opportunity for President Trump and the Republicans to further their simple solution to their complex set of problems. The Trump and Republican dilemma in a nutshell is that the GOP is an ever increasing minority and in 2020 are behind in every possible poll and on the cusp of an electoral shut out state and country wide. The answer to date has been suppress the vote, declare the election rigged and argue that the Supreme Court will uphold their complaints. The overall objective however is to Make America Great Again via control of the third co - equal branch of government, the Judiciary which can declare their agenda constitutional. In this objective the tiny well funded Federalist Society plays a central role. 

THE GOP, SCOTUS, THE AMERICAN CONSTITUTION AND THE FEDERALIST SOCIETY

There is also an immediate explanation to Trump’s behavior. One of his main platforms to his base has been that he would appoint conservative judges that would, among other agendas, reverse, Roe v Wade, the decision in favor of a woman’s right to choose and Obamacare and generally side with business against the individual. How could he be so sure his judges were ad idem? He would obtain the list of those that qualified from the Federalist Society. Trump has also repeatedly sprouted that although he will lose cases in the lower courts he can wait till it they reach the Supreme Court where he will “get a fair shake”.

Before continuing it is worthwhile to briefly review the American Constitutional situation. There are three co - equal branches, the Legislative which is divided into the Senate and House of Representatives, the Presidency and the Judiciary. In their desire to form the Republic the Founding Fathers weighted the power of the votes of the smaller states to give them a larger say than their numbers represented in order to get their buy in. In modern day terms that means that the Republicans have lost the popular vote in Presidential elections five out of the last seven times, control the Senate with fifteen million fewer votes and they have often with less of the electorate been able to win the House because they have gerrymandered the districts to their favor. Added to that they have practiced voter suppression tactics. However the chickens are finally coming home to roost. The American demographics are changing and the populations becoming more urban and suburban.

For the last few decades the Republicans have concentrated on the Judiciary generally and  Supreme Court of the United States of America, (SCOTUS), specifically, to fulfill their agenda. The preparation for this task was via various societies that have been provided with a ton of money from Republican donors. Previously the court although always more conservative than society followed would Martin Luther King called the “moral arc of history”. This they had achieved with Judges, including those appointed by Republican Presidents, to move more and more away from the conservative social agenda, favoring of business, executive power and the like. Thus it became unconstitutional to segregate schools, ban interracial marriages, for the President to be above the law, segregate facilities and discriminate against the LGBT community for example. Ironically the major changes took place under the leadership of Republican Chief Justices Burger and Warren. 

However the last six judges nominated by Republican Presidents were members of a tiny well funded organization called the Federalist Society with campaigns conducted on their behalf by the Judicial Crisis Network. Democratic Senator Whitehouse rather than question Amy Barrett used his half an hour to explain the tens of millions of dollars spent on installing the Federalists including her. The six Supreme Court Justices that are members of the Federalist Society are Clarence Thomas, (George Bush 41), Chief Justice Roberts and Samuel Alito, (George Bush 43), Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, (Donald Trump). Chief Justice Roberts denies he was a member although he is listed as being in the leadership for a number of years. The Federalist Society was founded in 1982 and consists only of a minority of the legal fraternity who are conservative and libertarian. Politically it has been almost the sole arbiter of whether you past muster to be a Federal Judge in the last three Republican Presidencies particularly in the Trump regime.

Till the death of Ruth Bader Ginsburg the split recently was five Federalists versus four Democrats. Chief Justice Roberts, fearful that his Court was being regarded as a rubber stamp for the narrow conservative base of the Republican Party has on the odd occasion been the casting vote for a five - four decision in favor of such matters as the preservation of Obamacare and more recently supporting the blocking of anti Choice legislation in a Southern State. He has attacked Trump for his shameless characterization of various courts and various judges being Obama or Bush Judges, being particularly sensitive about the fact that Trump expects the Supreme Court to deliver for him. 

But for the rest the current five Fedralists including Roberts have already delivered big time. Notably they allowed corporations to donate limitless money into political groups using the obtuse reasoning that corporations were individuals who were entitled to free speech and money was the equivalent of free speech. Then they have thrown out all the limits put on certain states on instituting voter restriction practices, allowed gerrymandering of districts and most recently stopped the census count at a time when a large number of poor, hispanic and African Americans have not as yet been counted. 

THE REASON FOR THE URGENCY OF “ORIGINALIST" BARRETT'’S APPOINTMENT

 Trump has unabashedly claimed that the indecent unprecedented urgency to rush the appointment of his nominee Judge Amy Coney Barrett is he needs her to rule soon. The immediate issues are her support of the removal of Obamacare scheduled to be heard on November 10, to be on the Court when the fate of the DACA youth are decided and most important, the anticipated disputes he and the Republicans will have following their crushing defeat. She is also pro gun, anti abortion and even possibly anti contraception, pro business and an acolyte of the late Justice Scalia. She claims her philosophy is that of an originalist and was a member of the Federalist Society from 2005 to 2006 and 2014 - 2017. As a Federal Court Appeal Judge she received payment for six trips paid for by the latter. 

The originalist doctrine of interpreting the Constitution is that the latter must be understood in terms of the original meaning of the document at the time it was adopted in 1789. Barrett underlines it to have the meaning it had at the time the Founders ratified it.  She states that, “That meaning doesn’t change over time and it is not up to me to update it or infuse my policy views into it. “ 

THE FALLACIES IN THE ORIGINALISTS’ ARGUMENTS.

The very fact that no sooner had the Founders passed their Constitution which was apparently as sacrosanct as the tablets that Moses brought down from Mount Sinai they thought it wasn’t “up to date” and introduced ten amendments - known as the Bill of Rights. The very fact that they postulated amendments shows that their state of mind accepted that as time went by the Constitution needed to be added too. The procedure for the introduction and acceptance of Amendments was indeed included in the very Constitution the originalists are defending as written in stone again signifying that it could be subject to change.  

If one wants to hang on to the originalists’ very words that the meaning hasn’t changed over nearly three hundred years then the capable brilliant Amy Coney Barrett could never even have a vote let alone a seat in being an arbiter of the interpretation the Constitution. The latter initially only guaranteed rich white men the right to “the pursuit of life, liberty and happiness”. Nor did any of the 1787 version include the franchise for one of the most conservative Justices of them all Federalist member, African American Clarence Thomas. 

Oblivious to the Federalist Society, the three most revolutionary Amendments were introduced almost a hundred years later, the 13th, 14th and 15th, which inter alia abolished slavery, allowed for due process, equal protection under the law and the right to vote regardless of race or color. And in 1919, hooray and hallelujah, the women were granted suffrage by the nineteenth Amendment. In 1951 the President was limited to two terms. Finally in 1964 the Jim Crow crowd were denied their voter suppression by the constitutional amendment not permitting the denial of a vote based on a poll tax or any other tax. 

Now the originalists can argue that Amendments are part of the Constitution as the Founders wrote it but if they do they have to realize that by so doing they foresaw that situations could change and evolve. For example, there were no such objects as IPhones or the numbers of ballot boxes per county or AK 47’s in 1787. Nor just because organizations of twenty first century of white supremacy thugs call themselves militias could it be argued that they ware  “a well regulated militia being necessary for the security of the state”, as defined in the Second Amendment.  In fact that latter crowd that march into State Legislatures with guns have been defined as being part of the largest terror group in the country by the FBI. Nor could there have been anything further from the Founders’ minds that money equals free speech and that Sheldon Adelsohn can donate seventy five million dollars to Trump’s election campaign. How the libertarian originalists can rule that businesses are more important than individuals or their representatives or that a firm can dictate that their medical plan can deprive a woman of contraceptives makes Amy Coney Barrett’s claim that the justices rule on the original meaning of the Constitution and don’t make policy ludicrous.

The greatest distortion of the originalists’ interpretation of the  Constitution was illustrated in Bush v Gore. There the fact that States who constitutionally manage their own procedures on voting were ignored and the Florida’s Supreme Court decision for a recount of the voting was over ruled. The constitutional basis was the fourteenth amendment, under the rubric of equal protection under the law, which was introduced in 1868 to protect the rights of released slaves. The five - four opinion made it quite clear that the case could not be a precedent. It was a one off. Most vocal in this narrative was Amy Barrett’s originalist mentor Justice Scalia, “Who told critics, “To get over it”.

AT THE END OF THE DAY

No slick rationalizations and reinterpretations of her own words can remove the stain of Judge Barrett’s hypocrisy on the replacement of a Supreme Court Judge in an election year, She claimed that the replacement of Justice Scalia by middle of the road Merrick Garfield, ten months prior to the election date was unacceptable as it upset the philosophical balance of the court. Judge Barrett who is at kindest very conservative has accepted the nomination to replace the liberal and feminist icon Justice Ginsburg two weeks before final polling. 

While Article Three of the Constitution gives Congress the right to determine the shape and structure of the Judiciary it could never have been the intent to allow a small well oiled society to control the third branch of Government with a bunch of clones.

It is obvious that certain sections of the Republican Party believe this is the only way to hang onto white power and Make America Great Again. The very fact that this is their main order of business in the middle of a health and economic crisis is indicative that come hell or high water this is their priority. Trump has a more immediate stated objective, namely for the Court to rule in his favor in any possible election dispute. Senator Amy Klobuchar pointedly enquired of Judge Barrett whether she thought it was a coincidence that with her appointment there would now be three of the Bush legal team on the Supreme Court. Also the POTUS needs her to help dump the Obama Affordable Care Act that provides health care to tens of millions of people in this pandemic.

When the Democrats, having had two Supreme Court vacancies “stolen” from them by the hypocritical Republicans, load the Court with additional nominees they can argue that is what the constitution specifically allows them to do.

One would think under these circumstances there could just be four out of fifty -  three Republican Senators who have enough integrity to prevent this divisive and unprecedented nomination from going through.