Trump picks Amy Coney Barrett.

Plus, should Democrats pack the court?
Isaac Saul Sep 28, 2020
I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.” You can read Tangle for free, subscribe for Friday editions and you can reach me anytime by replying to this email. If someone sent you this email, they’re asking you to sign up. You can do that by clicking here.

Today’s read: 11 minutes.

Amy Coney Barrett accepting her nomination. Photo: Screenshot from MSNBC

Yom Kippur.

Today is the holiest Jewish holiday of the year. Like many Jews across the world, I’m spending the day fasting and trying to reconnect. I wanted to wish an easy fast to everyone trying to make it through the day. I’m attempting my first day without coffee in a few years, so please send me your thoughts, prayers, good vibes and most importantly your energy.


Quick hits.

  1. The New York Times got President Donald Trump’s tax returns. Trump paid just $750 in federal income taxes the year he won the presidency, and no income taxes at all in 10 of the previous 15 years, largely because he reported losing far more money than he made in each of those years. He is hundreds of millions of dollars in debt and in the middle of a decade-long battle with the IRS over a $72.9 million tax refund that he claimed — a ruling that could cost him $100 million if the IRS wins.
  2. Florida Gov. Ron DeSantis announced that the state will totally reopen its economy, entering Phase 3 of reopening and dropping all restrictions. Virginia Gov. Ralph Northam announced that he and his wife had tested positive for COVID-19 after contact with a staff member who had it.
  3. Palestinian President Mahmoud Abbas asked the United Nations to convene a conference in 2021 between “concerned parties” in the Israel-Palestinian conflict. The request “appeared to reflect an acknowledgement that the ground had shifted significantly in Israel’s favor over the past year,” The New York Times reports.
  4. A 40-year-old Californian was arrested and charged with attempted murder after driving her car through a crowd of Trump supporters who were counter-protesting a racial justice protest in California. It’s one of dozens of similar incidents that have taken place in recent memory, though racial justice demonstrators are typically the victims.
  5. Brad Parscale, a top campaign aide to President Trump and former campaign manager, was armed and threatening to harm himself in his home this weekend. Police were called to Parscale’s home, where he was taken into custody and brought to a hospital for treatment.

What D.C. is talking about.

Amy Coney Barrett. On Saturday, President Donald Trump announced he was nominating Amy Coney Barrett to fill the Supreme Court vacancy left by the death of Ruth Bader Ginsburg. Last week, Tangle covered the possibility of Barrett as the replacement, exploring the left’s and right’s arguments over her record.

Barrett, at 48 years old, would become the fifth woman to ever serve on the court if she is confirmed. She would tilt the court’s conservative majority to a solid 6-3 balance and has pledged to rule in the mold of the late Justice Antonin Scalia, a conservative icon who died in 2016. Barrett is the youngest nominee to be up for the court since Clarence Thomas was nominated in 1991 at the age of 43.

Barrett’s nomination also sets up what is likely to be one of the most contentious Supreme Court battles in American history. With just 36 days until the election, Barrett’s nomination is the second closest to election day in U.S. history and comes after the Republican-controlled Senate refused to take up Barack Obama’s nominee Merrick Garland when Obama nominated him to the court to replace Scalia nine months before the 2016 election. With Republicans controlling the Senate by a 53-47 majority, and just two defections so far, Barrett’s nomination appears all but certain.


Agreed.

Both the left and right agree that Barrett is qualified to sit on the Supreme Court. Very few have questioned whether she has the legal experience, credentials or temperament to be a qualified justice. There’s also some agreement that, given Ginsburg’s crucial role in trailblazing a path forward for women, replacing her with a woman seems fitting. Barrett acknowledged as much when accepting the nomination. “The flag of the United States is still flying at half-staff, in memory of Justice Ruth Bader Ginsburg, to mark the end of a great American life,” she said. “Justice Ginsburg began her career at a time when women were not welcome in the legal profession. But she not only broke glass ceilings, she smashed them. For that, she has won the admiration of women across the country, and indeed, all over the world. She was a woman of enormous talent and consequence, and her life of public service serves as an example to us all.”


What the left is saying.

The left has been overwhelmingly critical of Barrett’s beliefs, how she may rule in critical cases, and the very fact that Republicans are pushing her nomination through just four years after many of them argued that a president should not nominate a justice this close to an election.

David Cole, the legal director of the ACLU, wrote that “if Amy Coney Barrett is confirmed, a die-hard conservative will once again replace a civil rights hero, and the resulting shift will be tectonic.”

“To appreciate what that could mean in practice, consider how many cases in the past decade or so have been decided 5 to 4, with Ginsburg providing a fifth vote. In June Medical v. Russo, the court struck down state restrictions on the right to abortion. In Obergefell v. Hodges and United States v. Windsor, the court recognized a right to marry on behalf of same-sex couples. The court has twice preserved affirmative action from constitutional challenge by the same one-vote margin.”

“Also by a single vote, the court struck down the death penalty and mandatory life-without-parole sentences for juvenile offenders; and declared that, for adult offenders, the death penalty may be imposed only for homicide and not rape,” he said. “Two years ago, again by the narrowest margin, the court protected Americans’ rights to the privacy of their cell phone location data. Last year, the court invalidated President Trump’s partisan attempt to add a citizenship question to the census, a move designed to aid Republicans and harm Democrats. This past term, the court stopped Trump’s effort to lift dreamers’ protections from deportation.”

James Downie argued that Barrett’s record is clear, and Republicans are trying to pretend she won’t be predictable because “her judicial opinions, law review articles and other comments demonstrate that her views on abortion, the Affordable Care Act, gun rights and so on are fundamentally at odds with most Americans'... The truth is Republicans don’t want to talk about Barrett’s views because they know most Americans don’t want Roe overturned or the ACA struck down or a vastly expanded Second Amendment.”

In The New York Times, Lara Bazelon wrote critically about how much play Barrett’s gender was getting. Bazelon argued that Trump’s promise to name a woman to replace Ginsburg was “cynical and insulting to the millions of women who view the late Supreme Court justice as a feminist icon.”

“Women aren’t gym socks, purchased in bulk so that a replacement can be seamlessly substituted into the rotation when one goes missing in the washing machine,” she wrote. “The next Supreme Court justice will cast crucial votes that affect women’s fundamental rights, including the right to control their own bodies and to gain access to affordable health care for themselves and their families. The fact that President Trump’s nominee is a woman matters less if she does not support the causes at the heart of the long, continuing march for gender equality that Justice Ginsburg championed.”

It wasn’t all negative, though. In Bloomberg, Noah Feldman, who went to law school with Barrett and has repeatedly praised her as a remarkable student, once again wrote that “regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court.” In The Washington Post, Ruth Marcus wrote that Barrett’s large family (she has seven children) sends “an important signal to women — and men, for that matter — who may disagree strongly with the judge’s philosophy but cannot help but come away with the message from her selection: It’s possible to manage family and career, however imperfectly and stressfully. Success at work does not require giving up the chance to have children, not if you want them.”


What the right is saying.

They are lauding the pick. Barrett was on every religious conservative’s shortlist during both of Trump’s previous opportunities to nominate a justice, and the third time has indeed proven to be the charm. The Wall Street Journal editorial board called the nomination a “highlight of his Presidency and perhaps a hinge moment for the judiciary.” Specifically, the board called out Barrett’s originalist writings in her three short years as a judge, celebrating her decision in Kanter v. Barr in which she dissented from restricting gun rights for convicted criminals.

“The easy decision would have been to go along with the panel majority, and popular opinion, by barring gun ownership to felons,” the board wrote. “Judge Barrett looked at the constitutional history and the Supreme Court’s Heller precedent to make important distinctions that protect the Second Amendment the way liberal jurists once protected the First Amendment regarding unpopular political speech. Perhaps on the High Court she can coax Chief Justice John Roberts to stop treating the Second Amendment as the prodigal son of the Bill of Rights.”

The board also noted that Barrett is no guaranteed friend of Trump, pointing out that she “ruled against the Trump Administration on immigration law,” and added that she’s not a “radical” on abortion either, having adhered faithfully to precedent in Price v. Chicago in 2019. The one dissent she joined in an Indiana abortion case was affirmed by the Supreme Court.

In Politico, Erika Bachiochi argued that Barrett “should serve as a catalyst for rethinking the most powerful social movement in the last half century: feminism.” Bachiochi argues that Ginsburg “viewed abortion rights as central to sexual equality,” but “rather than make women more equal to men, constitutionalizing the right to abortion as the court did in Roe has relieved men of the mutual responsibilities that accompany sex, and so has upended the duties of care for dependent children that fathers ought equally to share.”

“Barrett embodies a new kind of feminism, a feminism that builds upon the praiseworthy anti-discrimination work of Ginsburg but then goes further. It insists not just on the equal rights of men and women, but also on their common responsibilities, particularly in the realm of family life. In this new feminism, sexual equality is found not in imitating men’s capacity to walk away from an unexpected pregnancy through abortion, but rather in asking men to meet women at a high standard of mutual responsibility, reciprocity and care.”

In City Journal, Adam Freedman called Barrett’s nomination a “superb choice,” describing her as “a distinguished scholar whose judicial philosophy balances a commitment to originalism with a respect for precedent” and someone who will “do credit to the institution.”

“Barrett has earned lavish praise from colleagues across the ideological spectrum,” Freedman said. “In 2017, when Trump nominated Barrett to the U.S. Court of Appeals for the Seventh Circuit, her Notre Dame colleagues unanimously supported her in a letter to the Senate Judiciary Committee. The law professors wrote that they had a ‘wide range of political views’ but were ‘united however in our judgment about Amy.’ She was also endorsed in a letter signed by every former Supreme Court law clerk who clerked while Barrett worked for Justice Scalia. The former clerks’ letter described Barrett as a ‘woman of remarkable intellect and character,’ as someone who ‘conducted herself with professionalism, grace, and integrity’ and ‘was able to work collaboratively with her colleagues (even those with whom she disagreed) on challenging legal questions.’”


My take.

I share in the left’s consternation over Barrett, particularly as it relates to the Affordable Care Act and the possibility that the court will shred the law. This concern is made far, far worse by the most important part of the Trump administration’s lawsuit to destroy Obamacare: that neither Trump nor Senate Republicans have produced an adequate replacement — or a replacement of any kind — during the four years they’ve spent attacking it. If Barrett tilts the court in a way that ultimately invalidates the ACA, more than 100 million people — literally — could and likely will be negatively impacted.

On the merits of the nomination’s timing itself, there’s no question: there is great hypocrisy from Republicans. In 2016, I believed Obama should’ve been able to nominate a replacement in his last nine months in office. Republicans in the Senate broke precedent by refusing to even take his nominee up for a vote, something that was previously unheard of in American history. They fundamentally changed the rules —and many of them vowed to work within those boundaries going forward. They’re now all breaking their own new precedent (save a few safe defections), none worse than Sen. Lindsey Graham from South Carolina, whose hypocrisy and political word is beyond repair. If Democrats take back the Senate this year, the anger over that hypocrisy will likely set off partisan retaliation the likes of which we’ve never seen.

Unlike Republicans in the Senate though, and plenty of Democrats who have flip-flopped along the way, my standards have not changed. I believe that anytime there is a vacancy, a sitting president gets to nominate a Supreme Court justice — and is, in fact, obligated to — and that the Senate is obligated to consider that nominee. It appears Republicans have the votes to get Barrett through even if they have to do it in a lame duck session (the time between election day and when a new president and Senate are sworn in). It will be a bitter and ugly fight, but my fervent wish is that Barrett is treated fairly. Some of the criticisms of her already have me concerned.

Ibram X. Kendi, whose book “How To Be An Antiracist” I recently recommended in this newsletter, criticized her decision to adopt two children from Haiti, tweeting that it evokes a culture of “colonizers” and suggested Barrett may be a brand of White people who use children of color as “props in their lifelong pictures of denial” of being racist. Vanessa Grigoriadis, who wrote another important book about sexual assault on college campuses, asked how Barrett could serve on the court and be a “loving, present mom to seven kids.” Many others have openly questioned whether Barrett being a devout Catholic is somehow disqualifying. These kinds of attacks do nothing but make the left look completely incapable of accepting a qualified woman whose worldview they don’t agree with — they also make me cringe, and I’m certain I’m not alone.

Barrett is qualified and far less predictable as a judge and lawyer than most make it seem. She’ll also be a unique voice on the court. She’ll be the only mother, as neither Justice Sotomayor nor Justice Kagan have children, and she’ll be the first mother of school-age children to ever serve on the Supreme Court. She has not worked in government before becoming a judge, as six of the eight current justices have. And as Matt Mayer noted in Spectator, she’s spent most of her life in South Bend, Indiana, which is also notable. “Other than Neil Gorsuch, who lived in Colorado following his appointment to the 10th Circuit, she will be the only justice who didn’t spend the bulk of her adult life since turning 18 in elite Ivy League schools or among the elite lawyers and politicians in the Acela corridor,” he wrote.

By all accounts, even those of her greatest ideological detractors, she is an exemplary scholar, lawyer, professor, judge, and a truly decent person to boot. It’s unfortunate she’s being nominated by a president who lacks many of her qualities and will be confirmed by a Senate of hypocrites and blithering partisans.

For now, the best way to moderate Barrett’s views, if you disagree with them, is to express yourself with a vote. Studies show the Supreme Court rarely diverges far from public opinion, a fact that should encourage the left to focus more on winning public opinion and elections than anything else. During her acceptance speech, Barrett pointed out that the Supreme Court “belongs to all of us,” the American people, saying she would “not assume that role for the sake of the people in her own circle” but to serve all Americans. With that in mind, I hope she — like some of the conservative justices before her — considers court precedent and the fact that 77% of Americans want Roe v. Wade preserved, Americans’ approval of the ACA is holding steady and the vast majority of Americans (Republicans, Democrats and gun owners) want it to be harder to purchase weapons in the United States.


Your questions, answered.

Q: Now that it looks like the Senate will confirm Amy Coney Barrett, I’m curious what you think about the Democrats’ threats of retaliation. The most talked-about option is “packing the court” by expanding it and adding liberal justices, which is not prohibited in the constitution. Would you support that?

— Brady, Jacksonville, Florida

Tangle: No, I wouldn’t. First, packing the court is not a new idea. Franklin Delano Roosevelt tried to pack the court in 1935 during the Great Depression. At the time, FDR was extraordinarily popular and the Supreme Court was historically unpopular. The economy was in free fall. His attempt, which came after the court had struck down some of his New Deal laws, failed miserably. In August, the Supreme Court’s approval rating was the highest it’s been since 2009 (58% of Americans support it) and it’s coming off one of the more balanced terms in recent memory. That’s sure to change with Barrett’s nomination and Ginsburg’s death, but I don’t think it’ll be by much.

There’s also the obvious outcome of the threat here. Democrats are threatening that if they win the Senate, they’ll abolish the filibuster and pack the court. The Senate has changed control four times in the last 20 years, and — in the event Democrats actually win it back this year, which is far from a sure thing — it looks likely to flip back to Republicans in 2024. So then what? Democrats add four liberal justices to make it a 13-person, 7-6, liberal majority? Then Republicans add two conservatives to flip it back? Then we start doing that every single time there’s a new party in control of the Senate?

It’s just not feasible or practical. And it wouldn’t be productive, either. Yes, there’s nothing to stop a Senate or Congress from changing the number of justices on the court — the Constitution doesn’t specify, and the first Supreme Court had six justices, then 10 under Abraham Lincoln and then it came back down to nine. FDR tried to expand the court to 15 justices.

So what can be done? Well, two things. One, Democrats could start whipping up younger American voters who overwhelmingly support most of their policies and start winning elections. They could fight gerrymandering at the local level with the same vigor with which some Republicans have exploited it, and they could actually turn up and vote. In this election, they just might. The same story has been playing out for the last 20 or 30 years: Many major progressive policies are more popular, but Republicans continue to show up and vote when many Democrats don’t. In 2016 the party rammed through a historically unpopular candidate and lost an election where they neglected some of the most important battleground states on the map. Now we’re going to get three Donald Trump justices. Serious mistakes reap serious consequences.

The second option, if there’s a good reform for the court, is 18-year staggered terms. Right now, Supreme Court justices serve lifetime terms and many serve those terms out well into their 80s. The Washington Post made a strong case for 18-year staggered terms in an editorial recently and I think I am pretty much sold. This reform would give every president the chance to appoint two justices and would prevent what we’re witnessing now: the death of one Supreme Court icon further polarizing and divorcing our nation from itself.

As The Post noted, this reform “would be to lower the stakes of any one Supreme Court pick, so the parties are not tempted to resort to all-out war every time a justice retires or dies.” It would also stop presidents from trying to pick younger justices to reshape the court for decades and would instead allow them to focus on picking the most qualified judges.

I hope Congress considers it.

Reminder: You can ask questions, too. All you have to do is reply to this email and write in.


A story that matters.

The Food and Drug Administration said it would require a new warning label on common psychiatric drugs called benzodiazepines, which includes brand names like Xanax, to “better warn the public and health professionals about the serious risks of abuse and addiction” in this class of drug. Benzodiazepines are typically prescribed for insomnia, anxiety, seizures and panic disorders, and sometimes they are given before medical procedures to help keep patients calm. The drugs are “enormously popular,” as The Times put it, and roughly 92 million prescriptions for benzodiazepines were written in 2019.


Numbers.

  • 56%. The percentage of voters who would like to see the winner of the election appoint the next Supreme Court justice.
  • 41%. The percentage of voters who would like to see Donald Trump appoint the next Supreme Court justice.
  • 60%. The percentage of voters who think abortion should be always or mostly legal.
  • 33%. The percentage of voters who think abortion should be always or mostly illegal.
  • 4%. Hillary Clinton’s margin of victory over Donald Trump amongst independent women voters in 2016.
  • 77-20. Joe Biden’s current margin in the polls over Donald Trump amongst independent women.
  • 12%. Hillary Clinton’s margin of victory over Donald Trump amongst moderate voters in 2016.
  • 72-25. Joe Biden’s current margin in the polls over Donald Trump amongst moderate voters.

Friday.

On Friday, Tangle subscribers got a special edition of the newsletter that went over the last 12 months and highlighted the most important stories from every month, the runners-up, and all the stories we thought would be important at the time but weren’t. This is the kind of unique, original content subscribers get on most Fridays. You can read that edition here or support Tangle by subscribing below.

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Have a nice day.

Hundreds of major companies are giving their employees paid time off on election day to vote or volunteer at the polls. The non-partisan effort, being led by groups like Power the Polls and Time To Vote, has gotten more than 800 companies to sign a pledge that they will give their employees paid time off to vote. Some of the companies include Starbucks, PayPal, Uber, Microsoft, Gap, Target and Old Navy. The commitments will impact some six million U.S. adults. The United States lags far behind other developed nations in voter participation, so the news is welcome. Even in a historically high turnout year like 2018, just half of all eligible voters actually cast a ballot.

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Isaac Saul

I'm a politics reporter who grew up in Buck County, PA — one of the most politically divisive counties in America. I'm trying to fix the way we consume political news.

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