Judge Amy Coney Barrett
Dear Senators,
I want to strongly encourage you to reject the nomination to the Supreme Court of Judge Amy Coney Barrett. In my opinion this is a last ditch, rushed effort by President Trump and some of his colleagues in the Senate to repeal the Affordable Care Act and reject the Supreme Court’s rulings in Roe v. Wade and its progeny before they stand before the American voters for re-election in November, 2020.
When President Obama nominated a respected and experienced, centrist jurist, Judge Merrick Garland to the Supreme Court early in the last year of his Presidency, Senate Majority Leader McConnell and his colleague refused to meet with Judge Garland or the schedule any hearings or votes on his nomination. Leader McConnell explained then in March 2016, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” In 2018, Sen. Lindsey Graham, the Chair of the Senate Judiciary Committee committed to the American electorate -- “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election.”
We do not know how Judge Barrett will rule on important cases coming before the Supreme Court. However, her writings on important issues coming before the Court are, to put it gently, not encouraging.
On the issues surrounding Roe v. Wade, she has signed ads decrying the court’s decision as barbaric, written that abortion is “always immoral”, consistently argued that Roe v. Wade was wrongly decided, and opposed access to contraceptive services under the Affordable Care Act. https://slate.com/news-and-politics/2020/10/amy-coney-barrett-record-roe-v-wade.html; https://www.harpersbazaar.com/culture/politics/a34167818/amy-coney-barrett-roe-v-wade-abortion/, and https://thehill.com/homenews/senate/520463-amy-coney-barrett-tells-senate-panel-she-signed-ad-decrying-roe-v-wade-as
Judge Barrett may seek to undermine and strike down the Affordable Care Act. In her 2017 law review article of Professor Randy Barrett’s critique of judicial restraint in Justice Roberts’ decision upholding much of the Affordable Care Act, she indicates both her own caution about reviving the Due Process and Equal Protection clauses as a means of striking down progressive legislation, and her own opposition to the Supreme Court’s decision upholding the Affordable Care Act in NFIB v. Sebelius and King v. Burwell. http://cdn.cnn.com/cnn/2020/images/09/26/countering.the.majoritarian.difficulty.pdf and https://www.cnn.com/2020/10/10/politics/affordable-care-act-amy-coney-barrett-obamacare/index.html Having failed to repeal the ACA after 10 years of trying in court and Congress, it appears that the President and Senate GOP are trying to fast-pack the Court in advance of the latest challenge before the Supreme Court in California v. Texas, with oral arguments pending one week after election day. https://www.kff.org/health-reform/issue-brief/explaining-california-v-texas-a-guide-to-the-case-challenging-the-aca/
California v. Texas is the third effort to persuade the Supreme Court to strike down the ACA. The contention of Texas and seventeen other states is that when Congress repealed the tax penalty for failure to secure minimum essential coverage as part of the federal tax reform in 2017, it removed the constitutional underpinnings of the entire ACA. https://www.supremecourt.gov/docket/docketfiles/html/public/19-840.html In the 5th Circuit, the Trump Administration essentially agreed with the plaintiffs; the 5th Circuit remanded the case to the District Court Judge to reconsider its conclusions on severability; all sides have appealed to the Supreme Court. Many legal observers believe that the Supreme Court is not ready to invalidate the entire ACA based on this challenge, but the reforms such as barring denial of coverage for individuals with pre-existing conditions in the individual market are the provisions of the ACA at the highest risk in this litigation. A ruling for the state of Texas and its co-plaintiffs would dismantle much of the legislative underpinnings in coverage, services, rules for the private individual and employment based markets, Medicare reimbursement rules and much else
In Kanter v. Barr, a Second Amendment right to bear arms case, Judge Barrett dissented saying the government’s disqualification of a felon’s right to acquire guns was unconstitutional as it applied to a non-violent, first time offender convicted of mail fraud. https://cases.justia.com/federal/appellate-courts/ca7/18-1478/18-1478-2019-03-15.pdf?ts=1552685416 Her analysis was that the 2nd Amendment creates an individual right to bear arms akin to 1st Amendment free speech and freedom of assembly rights, and was even more constitutionally protected than a citizen’s right to vote in democratic elections.
Judge Barrett distinguishes between civic rights (right to vote or right to serve on juries) and individual rights (freedom of speech or religion) and suggests that the franchise (i.e. right to vote) can be limited by states to “virtuous citizens”, whereas the rights to own a gun cannot be taken away from a citizen absent a finding that they are dangerous to themselves or others. That strikes me as a warped view of the relative importance that founders of American democracy placed on citizens’ voting rights vs. gun ownership rights.
I strongly urge Congress to wait until after the decision of the American people in November and the investiture of the next Congress and President in January before considering the nomination to fill the Supreme Court seat of the trail-blazing Justice Ruth Bader Ginsburg.
Lucien Wulsin, JD
University of Virginia School of Law ‘70
Founder, Insure the Uninsured Project
Dated: 10/12/20