Who will replace RBG?

Plus, a question about discussing politics at work.
Isaac Saul Sep 22, 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.

RBG’s likely replacement. Plus a question about discussing politics at work.

Judge Amy Coney Barrett, a likely replacement for Ruth Bader Ginsburg, being sworn in. Photo: WikiCommins / VWEAA

Correction.

Yesterday, I called the late Supreme Court Justice Antonin Scalia “Antonio” twice and “Antonin” twice. I hope it goes without saying I know his real name, Antonin, but the mind can do funny things when typing an unusual name. The upside is this whole episode did teach me there is a moderately well-known Antonio Scalia who works as a banker in Italy (tough life) and that having two copy editors is better than one.

This is the 15th Tangle correction in its 13-month existence, and the first correction since August 27th’s “double half correction.” I track corrections in an effort to be transparent and plan to stop counting when the number becomes embarrassing. I am also now going to refer to this as the 15th Tangle correction in its 56-week existence to make it sound better. Thank you to whoever the reader was that gave me this idea, I can’t find your email but I appreciate you. (P.S. this is not a challenge to run this tally up).


Reader feedback.

Jacob from Kingston, New York, said “Not to take anything away from RBG, but it is worth noting that she could have retired during Obama's second term and secured her successor rather than making a plea from her deathbed.”

Anthony from Silverdale, Washington, wrote in and linked to this video, saying there was more Democratic hypocrisy than I cited. "In 2016 Democrats talked a lot about the Constitutional responsibilities of the President and the Senate, the necessity of having a fully staffed Supreme Court, etc. There was a lot more you could’ve said here."

Reva from Maryland wrote in to reflect on how Ginsburg’s legacy changed her own life. "In the 1960s before RBG, a woman could not get a credit card in her name and couldn’t sit on a jury, among so many other injustices. And the only jobs open for us were as a secretary, nurse or as a teacher. As a working woman and young mom I was looked down on by my women friends and neighbors. Hard to believe now."

Bill from Berthoud, Colorado, said “I suggest an important correction to the common description of the timing of the Supreme Court nomination process. We are not ‘43 days from the election.’ Because early voting has already begun in some states, we are ‘now within’ the election that has already begun, and voting will end in 43 days.”


Quick hits.

  1. Sen. Mitt Romney (R-UT) said he supported voting on a Supreme Court nominee, all but assuring President Trump has the votes to at least bring a nominee up for consideration before or immediately after the election. “I intend to follow the Constitution and precedent in considering the president’s nominee. If the nominee reaches the Senate floor, I intend to vote based upon their qualifications,” Romney said.
  2. House Democrats introduced a spending bill to fund the government through December 11th. The bill does not include farm aid sought by the White House. Congress needs to pass a spending agreement before midnight on Oct. 1st or the government will shut down.
  3. Andrew Weissmann, top deputy to Robert Mueller on the Russia probe, says the investigationcould have done more” in his new book. Weissman’s book portrays the investigation as a failure, Attorney General William Barr as a cynical liar and President Trump as lawless.
  4. The Washington Post is reporting that “A $1 billion fund Congress gave the Pentagon in March to build up the country’s supplies of medical equipment has instead been mostly funneled to defense contractors and used to make things such as jet engine parts, body armor and dress uniforms.”
  5. The Trump campaign is continuing a door-to-door knocking strategy while Biden’s team tries to lead by example on COVID-19 social distancing guidelines. Trump campaign manager Bill Stepien argues the strategy has earned them millions in earned media and grassroots enthusiasm that Biden is lagging on as the campaigns enter the final stretch.

What D.C. is talking about.

Ginsburg’s replacement. In yesterday’s Tangle, I broke down the arguments over whether Ruth Bader Ginsburg’s seat should be filled now, or by the next president and Senate. Today, I want to take a closer look at what the left and right are saying about the potential judges who might actually fill that seat. President Donald Trump said yesterday that he plans to announce the nominee on Saturday. Whether the Senate will try to fill the seat before the election or between the election and inauguration day is still not clear, but they do look primed to move forward.

According to The Wall Street Journal, the most likely picks are:

“Judge Amy Coney Barrett of the Seventh Circuit, in Chicago, and Judge Barbara Lagoa of the 11th Circuit, in Atlanta, said a Republican close to the process. Other names that have been discussed include White House deputy counsel Kate Todd and federal appellate judges Allison Rushing of the Fourth Circuit, in Richmond, Va., and Joan Larsen of the Sixth Circuit, in Cincinnati.”

Today, we’re going to focus on Barrett, who is widely considered the front-runner for the nomination.


What the right is saying.

The religious right is uniformly behind Amy Coney Barrett. In 2018, the Notre Dame law professor was the pick most conservatives concerned with the courts were rallying behind, and Trump ended up going with Brett Kavanaugh instead. Kavanaugh’s hearings, and the allegations of sexual assault he faced, ended up galvanizing the right in a way few things in modern politics have. But most conservatives, especially religious ones, had been hoping for Barrett from the start.

“I have never seen this coalition more united than it was in 2018 behind the much-vaunted possibility of nominating Amy Coney Barrett, the distinguished Notre Dame law professor and U.S. Appeals Court judge,” Matthew Walther wrote in The Week. “Instead the president tapped Brett Kavanaugh, a decision which disappointed many of Trump's supporters. The sense that he all but betrayed the single most enthusiastic segment of his base explains, among other things, the president's decision to address more than 100,000 anti-abortion protesters in person at the annual March for Life back in January.”

Barrett is a brilliant legal mind who has earned the admiration of her peers on both sides of the aisle, Sohrab Amari argued in the New York Post. And while she’ll be attacked for how her faith informs her view of some law, that’s no different than how Ginsburg said her Judaism informed the way she interpreted her responsibility to protect the oppressed and the poor. “To these achievements Barrett marries a vibrant Christian faith,” Amari wrote. “For the evangelicals and Catholics the president needs to turn out in November, her pro-life bona fides are on display not just in her activities and statements, but also in her own family: She is a mother of seven, including one biological child with intellectual disabilities and two adopted from Haiti.”

“She is the perfect combination of brilliant jurist and a woman who brings the argument to the court that is potentially the contrary to the views of the sitting women justices,” Marjorie Dannenfelser, the president of the Susan B. Anthony List, a pro-life political group, said.


What the left is saying.

Many on the left are sounding the alarm (literally). Ruth Marcus wrote in The Washington Post that “Amy Coney Barrett’s judicial record should alarm liberals,” focusing mainly on her abortion rulings. Marcus cites Barrett’s rulings in two abortion cases in Indiana; in one instance, Indiana tried to enact a statute that would require minors to get their parent’s consent for an abortion unless a judge determined it was not in the minor’s best interest. Federal courts struck the law down, saying it broke Supreme Court precedent allowing minors to demonstrate they are mature enough to make the decision on their own. But Barrett dissented, writing that “Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.”

“There is much more to plumb in Barrett’s writings, as Trump weighs his selection,” Marcus wrote. “But a quick review suggests that conservatives should be assuaged, and liberals alarmed, by the Barrett record in her first years as a judge.”

Some have pointed to alarming tidbits from Barrett’s personal life, like her membership in the “People of Praise,” a tight-knit Catholic group that participates in some more fringe forms of Catholicism, like speaking in tongues.

In Slate, Mark Joseph Stern summed up the greatest concerns by writing that calling Barrett a hardcore conservative “doesn’t quite capture how radically her jurisprudence differs from Ginsburg’s.”

“Barrett’s view of the law is fundamentally cruel,” Stern said. “During her three years on the 7th Circuit Court of Appeals, Barrett has either written or joined a remarkable number of opinions that harm unpopular and powerless individuals who rely on the judiciary to safeguard their rights.”

“Can job applicants sue employers whose policies have a disproportionately deleterious impact on older people? Barrett said no,” she said. “Should courts halt the deportation of an immigrant who faced torture at home? Barrett said no. Should they protect refugees denied asylum on the basis of xenophobic prejudice? Barrett said no. Should they shield prisoners from unjustified violence by correctional officers? Barrett said no. Should minors be allowed to terminate a pregnancy without telling their parents if a judge has found that they’re mature enough to make the decision? Barrett said no. Should women be permitted to obtain an abortion upon discovering a severe fetal abnormality? Barrett said no.”

“There is no question that, if confirmed, Barrett would cast the fifth vote to either hollow out Roe v. Wade or overturn it altogether,” Stern added. “Similarly, there is no doubt that Barrett would dramatically expand the Second Amendment, invalidating gun control measures around the country. It’s quite possible, perhaps even likely, that within a year of her confirmation, Americans will be forbidden from terminating a pregnancy in 21 states—but permitted to purchase assault weapons and carry firearms in public in every state.”


My take.

My read on Barrett is that she’s going to be far less predictable as a judge than either conservatives or liberals think. I’m wary of any “textualist,” someone who both interprets the law as it’s written and tries to infer what was intended by the law when it was written, which often leads to Americans in 2020 living by law the way Americans in 1776 wanted us to. The concept is absurd on its face. But Barrett’s job and the court’s job has never been to legislate, even if that’s what it's been doing for years. Her appointment would be a thorn in the side of liberals, but I’m not convinced it’d be armageddon. More than anything, it’d mean Congress would have to get back to crafting and passing laws — not fighting legislation in court.

Speaking of which: my greatest fear about Barrett is the potential for her to decimate the Affordable Care Act. As a pure matter of the outcome, Barrett’s appointment to the court would result in millions of Americans losing their health insurance on the tail of the worst medical disaster in 100 years. I often try to “lead with empathy” when writing this newsletter — empathy for the people whose opinions I oppose, the people who lack power, the people getting the short end of the stick in a political battle. And when leading with empathy here, the 20 million people on the ACA, many of whom are low-income or self-employed, have the most to lose with a Barrett nomination. There’s little sign Trump or Senate Republicans will produce an adequate replacement any time soon.

In a similar vein, Stern’s citations are deeply concerning. Barrett has been on the “cruel” side of several rulings. But he makes no mention of the opposite examples, like when Barrettfound that a male butcher who was subjected to harassment and unwanted touching by male co-workers could sue under federal anti-discrimination law,” arguing that he was being harassed for being a man and giving him a path to justice. The truth is Barrett’s cruel rulings may very well be a product of her ruling apathetically, but correctly, on poorly written law. Are cruel outcomes what I hope for from our justice system? No. Anyone reading this newsletter for any period of time should be familiar with my hope for criminal justice reform. Do the rulings make Barrett evil? No.

I’m also not going to pass judgment on a woman for being a devout Catholic any more than I would for her being Muslim or Jewish or Atheist. Many of my liberal friends would rightly squirm if op-eds were published questioning whether someone should be allowed on the Supreme Court because they were Muslim. Of course Christians and Catholics wield far more power in America already than religious minorities do, but plenty of public officials, lawmakers, judges, and human beings in my everyday life are committed to their faith without imposing that faith on others.

Barrett has stated unequivocally two things at least worth mentioning: 1) She’s argued that she will lean into Supreme Court precedent. In all likelihood this means expanding states’ rights, dictated by majority vote, to expand certain restrictions on abortions. This does not mean abortions will be illegal everywhere or even in the 10 to 20 conservative states trying to restrict them. This is also not the same as us living in Handmaid's Tale, it’s a continuation of the battles that have been fought for the last 40 years.

2) Barrett has said repeatedly that her faith is not relevant to how she interprets the Constitution. As one Roman Catholic district judge said of Barrett, “Her religious convictions are pro-life, and she lives those convictions… The question of what we believe as a religious matter has nothing to do with what we believe a written document says.”

It’s worth noting one thing the left isn’t arguing: that Barrett is unqualified. On that, there’s no disagreement. Barrett is up to the job. She started clerking for Antonin Scalia 22 years ago. She graduated summa cum laude from Notre Dame Law School, then began teaching there and has been named Distinguished Professor of the Year three times.

In 2018, Noah Feldman — bonafide liberal legal mind if there ever was one — said Barrett “would deserve to be confirmed without serious trouble. She’s deeply conservative, to be sure. But she’s also a truly brilliant lawyer, as I can attest from having clerked at the Supreme Court the same year she worked for Justice Antonin Scalia… I don’t use the word brilliant lightly. There were just under 40 Supreme Court clerks in October Term 1998, none exactly a slouch. She was one of the two best lawyers of the 40 — and arguably the single best.”

Not a single colleague from Notre Dame has so much as disparaged her — in fact every single one The New York Times contacted for a profile of Barrett “supported her elevation to the appellate court, noting they did so in spite of their different political persuasions.” One student said she didn’t even know Barrett was Catholic, noting she didn’t start class with a prayer or speak about her faith. Another faculty member described her and her family as “radically generous and hospitable.”

Compared to the dozens of unqualified district court judges Trump and McConnell have given lifetime appointments, or the potential alternative to Barrett — Judge Barbara Lagoa, a woman who reads conservative op-eds from the bench to help rule in her cases — Barrett is a shining star.


Your questions, answered.

Q: Do you think political discussions have any place in the workplace? I'm a political moderate, but in my highly conservative open-concept office surrounded by seven Trump voters, I'm often the only one chaffing at his often incendiary comments. I try to politely refocus on work, but I think my irritation shows through. Any thoughts on what I can do better?

— Jeremy, Cleveland, Ohio

Tangle: I’ll preface everything I’m about to say by noting that my experience “in the workplace” could make me totally unqualified to answer this question. My workplace, for my entire professional career, has been various newsrooms. I had a smorgasbord of jobs up to and through college — in a dog kennel, as a lifeguard, as a landscaper, bussing tables and washing dishes in various restaurants and country clubs — but my in-office work has always been writing. Since my first journalism job at The Pitt News my sophomore year of college, I’ve been in newsrooms. All that is to say, it’s been part of my job to discuss politics in the workplace.

Still, though, I’ll go out on a limb here and say yes — I do think political discussions have a place in the workplace. That’s because my general overarching view is that Americans really, really need to talk to each other more. Especially when it’s people you disagree with. I don’t see any reason why conversations about politics are more taboo than conversations about the date you went on last night, and my understanding is those conversations are pretty commonplace in today’s workplace.

This isn’t meant to be some kind of righteous plea for Americans to “come together,” though that would be great. I just observe every single day that Americans are very uninformed about a majority of the major issues driving the news, and have little to no understanding of why people they don’t agree with think the way they do. As I say often, this is just the kind of thing I hope Tangle can help facilitate.

There are risks, of course. Most Americans are scared to share their honest political views, according to recent polling. Plenty of political extremists are in power at companies — your boss may be a diehard Trumper or leftist who is unapologetically offended by something you say or do in a way that could harm your career prospects. So I do not mean to imply that talking politics comes without risk.

What I do think is that most people spend more time with the folks they work with than their families and friends. You likely know your coworkers pretty well, understand them, and could learn from them. You can also have more civil and forgiving discussions with them than you do with strangers online or that kid from high school you hate on Facebook. That means you’re likely to build some political empathy about why they feel the way they feel.

My guiding principles in these conversations are to shut up and play dumb. Ask questions, let the other person speak, and if it sounds like they’re saying something that is ignorant, inaccurate, or offending you, don’t jump down their throat. Ask them to clarify, make sure you understand them, and then make your point in the most relatable way possible. And talk about your experience! The experiences you’ve lived. They shouldn’t supersede actual data but they are important.

An example: I wrote in today’s newsletter about my fear of the Affordable Care Act being abolished. I could cite polls showing the ACA has only grown in popularity, or data showing it has slowed the rising costs of healthcare, or the number of people it would leave uninsured if it were thrown out by the court. Alternatively, I could talk about my father — who works in the gig economy to make a living — and how the ACA allowed him to get his knees replaced or get regular doctor check-ups. I could talk about the fact that if I ever want to write this newsletter full-time, I’ll need to be able to buy a comprehensive health care package without an employer — something the Affordable Care Act makes not only possible, but a good deal more affordable.

That’s the benefit of talking person to person. You’re human, and you can discuss the human elements of politics. Proceed with caution, but don’t shy away. It’s good for the country.

Reminder: Asking a question is easy. All you have to do is reply to this email and write in.


A story that matters.

Hospitals across the country are now charging private insurers far more than what they get from Medicare for the same exact care. A new survey found that prices for private insurers were on average 2.5 times higher than for Medicare. “In a half-dozen of 49 states in the survey, including West Virginia and Florida, private insurers paid three or more times what Medicare did for overnight inpatient stays and outpatient care,” The New York Times reported. The study is expected to add to growing calls for the health insurance industry to be overhauled as hospitals consolidate market power, and Times wrote that “the findings cast doubt on the ability of private employers and insurers to competitively purchase health care for workers and their families compared to the federal government.”


Numbers.

  • 42%. The percentage of registered voters who think that Donald Trump should appoint a new Supreme Court Justice to fill the seat left vacant by Justice Ruth Bader Ginsburg before the presidential inauguration in January 2021.
  • 12%. The percentage of Democrats who think that Donald Trump should appoint a new Supreme Court Justice to fill the seat left vacant by Justice Ruth Bader Ginsburg before the presidential inauguration in January 2021.
  • 40%. The percentage of Independents who think that Donald Trump should appoint a new Supreme Court Justice to fill the seat left vacant by Justice Ruth Bader Ginsburg before the presidential inauguration in January 2021.
  • 86%. The percentage of Republicans who think that Donald Trump should appoint a new Supreme Court Justice to fill the seat left vacant by Justice Ruth Bader Ginsburg before the presidential inauguration in January 2021.
  • 45%. The percentage of registered voters who think that if Trump appoints a new Supreme Court Justice before the presidential inauguration in January 2021, the Senate should confirm the nominee.
  • 60%. The percentage of Democrats who say that the Supreme Court is “very important” in deciding who to vote for in the November elections.
  • 48%. The percentage of Democrats who said the same thing last week before the new vacancy.
  • 54%.The percentage of Republicans who say that the Supreme Court is “very important” in deciding who to vote for in the November elections.
  • 50%. The percentage of Republicans who said the same thing last week before the new vacancy.

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Have a nice day.

A brewery in Lenexa, Kansas, is sharing an unusual message on its cans: If you or someone you know is having suicidal thoughts, there is help available. Dave Mobley started his brewing company Limitless Brewing two years ago, and shortly before the brewery took off Mobley’s brother committed suicide. He was crushed by the loss and knew he wanted to do something, so he launched a line of beer for Suicide Prevention Month called "Your Story Is Not Complete." On the back, a local county hotline for suicide prevention is listed. The beer is available all month with proceeds going to suicide prevention.

If you or someone you know are feeling suicidal and need help, you can call the Suicide Prevention Lifeline: 1-800-273-8255. The national line is answered by mental health professionals. Spanish line: 1-888-628-9454

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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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