00:03 Leon: Hey, everyone, this is Leon from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Amy Coney Barrett, who was nominated this past weekend to replace Ruth Bader Ginsburg on the Supreme Court.
00:17 Amy Coney Barrett: I fully understand that this is a momentous decision for a President, and if the Senate does me the honor of confirming me, I pledge to discharge the responsibilities of this job to the very best of my ability. I love the United States, and I love the United States' Constitution.
00:39 Peter: This is 5-4, a podcast about how much the Supreme Court sucks. Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have rained down hell fire upon us like God unto Sodom, leaving nothing but ashes where our hopes once were.
01:01 Rhiannon: You listening, Amy?
01:07 Peter: Hi, I'm Peter. I'm here with Rhiannon...
01:08 Rhiannon: Hey.
01:09 Peter: And Michael.
01:10 Michael: Hey, everybody.
01:12 Peter: And today we are doing a special episode on Trump's shiny new nominee to the Supreme Court, Amy Coney Barrett. And it's probably a good time to mention we had some regular cases scheduled for October and late September, but we're gonna abandon that and sort of just do an election-based Supreme Court extravaganza, so...
01:35 Michael: Yeah, buckle up.
01:37 Peter: We're doing Amy today. We're gonna do some gerrymandering, some campaign finance, stuff like the Electoral College, and really explain to you why this is all happening, so you can really fully comprehend it right before it happens and your life ends on November 3rd.
01:56 Rhiannon: Stay tuned. You're welcome.
02:00 Michael: I do wanna say to our listeners, don't hurt yourselves.
02:08 Peter: Yeah.
02:09 Michael: This stuff can be bleak, and it's more bleak than ever, but just like...
02:12 Peter: Oh, no.
02:13 Michael: The fight goes on.
02:14 Peter: Yeah, and the podcast gets better, the worse things go.
02:19 Michael: So don't deprive yourself of the fucking gold 5-4 content that's coming your way.
02:25 Rhiannon: Right. That's right.
02:25 Peter: So Trump over the weekend, officially nominated Amy Coney Barrett to the Supreme Court, and that left everyone asking the same question which is like, what's this fucking lady's deal? You know, what's going on with her?
02:39 Rhiannon: Yeah. What's up with her?
02:40 Peter: So we're here to talk a little bit about her past, about her politics and religion, about her jurisprudence and what to expect in the fight for her confirmation.
02:52 Rhiannon: Let's do it.
02:54 Peter: Just a little 30,000 foot overview of Amy Coney Barrett, currently a judge on the Seventh Circuit Court of Appeals, which is the federal appeals circuit that covers Illinois, Wisconsin and Indiana. And she's only been there since Trump appointed her there in 2017. She is almost without question, one of the more conservative members of the federal judiciary.
03:15 Rhiannon: Yeah.
03:17 Peter: So... Let's walk it back a little bit. Talk about how she got here.
03:20 Rhiannon: Yeah. And you know, I just wanna highlight something that Peter already has said, and I think we need to keep in mind when we're learning anything about Coney Barrett, she has been on the federal bench as a judge since 2017, that is... If you're not a lawyer and can do math, three years, you guys.
03:41 Michael: If you considered our progenitor podcast. It's about as long as we have been podcasting.
03:48 Peter: Yeah.
03:48 Rhiannon: That's right. Okay, so Coney Barrett was born in 1972. A little bit more math required here, but that's pretty recent. Her dad was an attorney for Shell Oil.
04:01 Peter: Okay. Well, there has been some reporting. And her parents confirmed that as a child, she would often appear behind them in bathroom mirrors only to disappear when they turned around.
04:16 Rhiannon: Yeah. So she graduated from Rhodes College in 1994, and she went straight to Notre Dame for law school, where she graduated first in her class. Amy Coney Barrett can read a book. She clerked for Judge Laurence Silberman on the prestigious DC Circuit for a couple of years, and Silberman himself is a bit of a right-wing freak, part of the Nixon administration and Reagan's campaign in 1980.
04:49 Peter: Yeah. And you may remember him from just a few months ago when he wrote a barely coherent typo-ridden email to all court staff in which he called the removal of Confederate monuments, the "desecration of Confederate graves" and said, "My great-great-grandfather never owned slaves as best I can tell."
05:16 Rhiannon: Awesome.
05:16 Michael: Thanks. Good email.
05:19 Peter: That's how I end all my emails as well.
05:24 Rhiannon: Yeah, so moving on, Amy Coney Barrett then clerked after she clerked for Silberman for Justice Scalia himself on...
05:32 Michael: My favorite.
05:34 Rhiannon: That's right on the Supreme Court. She clerked for him for a year from 1998 to '99, and then she went into private practice for a little bit, but pretty quickly thereafter, she doesn't spend a lot of time in private practice, she entered academia, she was a law professor at George Washington for a couple of years before returning to her law school alma mater, Notre Dame, where she taught until Trump put her on the federal bench, like we said, in 2017.
06:03 Rhiannon: Oh, and real quick note, those few years she was in private practice, that was like '99, 2000, that year. If that sounds familiar, that is the year of Bush v. Gore, which in private practice, she worked on, I believe, for Jeb Bush, not the Bush campaign...
06:21 Rhiannon: Well, well, well.
06:22 Michael: But defending him in court, so just a little historical color about Judge Coney Barrett.
06:29 Rhiannon: Yep.
06:30 Peter: Well, I'm sure that doesn't forebode anything at all.
06:34 Michael: Yeah, no. No omen there.
06:35 Rhiannon: That's not relevant, Michael.
06:38 Peter: So we reviewed some of the scholarship she published while she was a professor, and to me, there's one clear take away, and it's that Amy Coney Barrett thinks about the law like we do, right, she understands that the law is about power and ideology. It's just that her ideology is far right religious zealotry.
06:58 Rhiannon: Yes.
07:00 Peter: So in 2013, she published a law review article titled Precedent and Jurisprudential Disagreement, where the thesis is essentially that the idea that the Court should be bound by its prior precedent is incorrect. This is something we've talked about, the idea that precedent is essentially an artificial constraint on the Court, that is not particularly useful or consistently applied. So in this broad conceptual way, we agree with her, but what she really means when she says this is like she does not feel the Court should be bound by the liberal wins of the '50s and '60s and early '70s, right.
07:29 Rhiannon: Exactly, exactly.
07:30 Peter: In the article, she specifically uses Roe v. Wade as an example of why relying on precedent too heavily can be a mistake. She essentially says that the public reaction to Roe was so strong that it shows a public rejection of the idea that the Court should be forced to adhere to precedent in the future. And in case that's all a bit abstract for you, the same year she described Roe as "creating through judicial fiat a framework for abortions on demand." So...
08:00 Rhiannon: Amy, what?
08:02 Peter: She's on record saying that, one, we do not need to respect the precedent of Roe v. Wade and two, she personally strongly disagrees with the decision.
08:09 Rhiannon: Yeah.
08:10 Peter: So yeah, I think you can see where this is going.
08:14 Rhiannon: Right, right. Exactly, and there's this long-standing tradition with conservative Supreme Court nominees where they're asked about whether they agree with Roe v. Wade, and they do this little dance where they imply that while they don't really agree with it, they're going to respect the precedent. So for example, in 2016, during the Kavanaugh confirmation hearings, Brett Kavanaugh said, "As a general proposition, I understand the importance of the precedent set forth in Roe v. Wade," but this is also a guy who in his jurisprudence right before his confirmation hearings, he was using that same abortions on demand language to talk about cases upholding Roe v. Wade and protecting the abortion right, so this is...
09:01 Peter: They love saying abortions on demand, by the way, like when else would you get an abortion other than when you want it?
09:09 Peter: They make it seem like that's the worst option when... The alternative is abortions out of nowhere, like just left-field abortions.
09:16 Rhiannon: Yeah, exactly.
09:17 Peter: So yeah, look, this is a new era to some degree, like Amy Coney Barrett is not a John Roberts conservative who really aggressively pretends to adhere to an objective interpretation of the law and claims her role is to call balls and strikes, at least that's not what she's held herself out to be as an academic.
09:35 Rhiannon: Right. Right.
09:36 Peter: She's an ideologue, right, and she and every Republican Senator and the Executive Branch are all engaged in an open play to seize power, and so I think this is the first time where there's an actual chance we might see the nominee outright say she disagrees with Roe v. Wade.
09:53 Rhiannon: Yeah.
09:53 Peter: I don't think it's super likely, but I think it's more likely than it's ever been, we're certainly getting to that point.
10:00 Rhiannon: Right.
10:00 Michael: Yeah.
10:00 Peter: And the question of what happens with Roe is an interesting one. In the '80s, people thought the conservative Court was going to overturn it, but an alliance of moderate conservatives, Souter, Kennedy, O'Connor, they sort of held it together. And since then, rather than overturn it, the conservative strategy has been death by a thousand cuts, right? Just weaken the right until it barely exists in practice.
10:22 Rhiannon: Exactly.
10:24 Peter: So that strategy has been very successful, so much that a lot of people are unsure as to whether the conservatives would actually overturn Roe. As it stands, they have abortion rights so weak that many states have just a couple of clinics. Plus, they get the benefit of having single issue voters who just want Roe overturned, right, showing out to the polls. But at some point those voters want action, right. At some point you have to pay the piper. And is that the term... What's a piper?
10:48 Michael: Yeah, yeah.
10:49 Rhiannon: I don't fucking know.
10:50 Peter: Okay, I just said it... It just came out and I was like, is that...
10:55 Michael: Piper... That plays a, I think, a flute.
10:56 Rhiannon: And you gotta pay them, they can't work for free.
10:57 Peter: You can't just have them play the pipe and just sit there watching, you eventually... You have to...
11:02 Rhiannon: Yeah, that's fucking rude.
11:04 Peter: Right. I get it. The conservative base doesn't want like a functional victory, right, they want total victory. They want symbolic victory. They want it all, right. And I think that Coney Barrett will give it to them.
11:17 Rhiannon: Yeah.
11:17 Michael: Right. What I do think might happen is you might end up with weird sort of political alliances here where there's plurality opinions with Roberts and Gorsuch and Kagan and Breyer or something, like narrowing the right with Kavanaugh, Barrett, Alito concurring in judgment and saying they would overturn it entirely if they had their druthers, but they don't quite have their votes for that yet. Something like that, where you essentially have liberal signing on to the very extreme erosion of it in order to stave off the straight elimination of it or something. I don't know, I see something like that. Brave new world.
12:01 Peter: Yeah. Yeah.
12:02 Rhiannon: Yeah. No, totally. And you know what I'm thinking, what I kind of think might be plausible in the confirmation hearings is you know how they use... Democrats, especially this time around, are going to be using Roe v. Wade as a litmus test, and I think Amy Coney Barrett, she might actually be the first person to be like, no, I think Roe v. Wade was wrongly decided. And I fully expect Senate Democrats to be like, oh, like almost like turn to the cameras like, did you hear that? But yeah, that's the point, girl, the Republicans are not going to think that's as big a deal, and I don't think Democrats have done a good enough job at setting up the public to be like, wait a second, that's a huge red flag.
12:44 Michael: I mean, in terms of effective litmus tests for weakening Republican base support for this nominee, Roe v. Wade isn't gonna be it, right. Maybe the Affordable Care Act and this case that's bubbling up right now, where they might kill guaranteed issue and to let insurance companies deny you coverage for pre-existing conditions again. That's something that could shake the base, that's something that they haven't been able to get rid of legislatively because their own voters like it too much.
13:17 Rhiannon: Right. Yeah.
13:20 Peter: Yeah. So obviously, Roe v. Wade is on everyone's mind, but her impact on the Court is gonna be much bigger than abortion rights, so we should talk about her record on the bench so far. Like we said, she's only been there a few years, so not a huge amount to look at, but I think there's enough that you can see some pretty clear trends.
13:35 Rhiannon: Yeah.
13:36 Peter: Probably the single biggest trend is something we've talked about before, her continued deference to the Executive Branch. Modern conservatives have taken the position that the Executive Branch should have effectively unfettered discretion in enforcing, for example, immigration laws, and what that means on the ground is that the Court doesn't act as a check on ICE and other anti-immigration efforts, but then also on military issues, on environmental issues, on countless other issues within the Executive Branch's general prerogative. Coney Barrett has in several cases taken the stance that executive discretion is in those areas near absolute.
14:12 Rhiannon: Yeah.
14:12 Peter: So a case from earlier this year, Cook County v. Wolf, the Seventh Circuit halted a Trump administration policy that instituted a wealth test for green card carriers, and Coney Barrett filed a 40-page dissent, arguing that the Executive Branch had broad authority to regulate immigration. Similar case, Yafai v. Pompeo, Barrett upheld the denial of a visa to an American citizen's Yemeni wife. The interesting thing here is that she questioned whether courts are even allowed to inquire into whether the Executive Branch is acting in good faith, and this is something we've talked about before too, because it's increasingly common that the Trump administration is just flatly lying to the Court about their motivations for various policies, the most famous example being the Muslim ban, which we talked about in our Trump v. Hawaii episode.
15:02 Rhiannon: Right.
15:05 Peter: Because the Trump administration is so frequently lying to courts and because its actual motivations are often plainly illegal, the administration's allies on the Court have steadily coalesced around the idea that it's like, it's just not their job to look at the administration's motives here, and Barrett appears to be a champion of this idea, and obviously that's very convenient for our big dumb racist President.
15:28 Rhiannon: Exactly. Yeah, and the Affordable Care Act is also on the chopping block. There's the decision out of the Fifth Circuit, a terrible one with a lot of complicated issues. Amy Coney Barrett is also a staunch gun rights supporter. She wrote a lengthy dissent in one case stating that she didn't believe non-violent felons could be prevented from having guns, but in the same dissent, she specifically mentioned that voting rights were not protected in the same way.
15:56 Peter: And I think that brings us to a pretty important point. Coney Barrett does not believe in any meaningful right to vote in this country, and will absolutely be complicit in whatever heist the Republicans are about to pull on the democratic institutions of this country. Like we've said many times before, the conservative project in this country relies on voter suppression. There is no question about where she stands on this.
16:19 Michael: Right, right. And this episode is about Coney Barrett, and I wanna stay focused on her, but we're talking about her because she's Donald Trump's nominee. And the fact that he's nominating her in this context at this time, it has implications, 'cause he doesn't really have a re-election strategy. What Donald Trump has is a political strategy to retain power despite losing the election, that's what he's doing. He says it, we know this because he's open about it, he knows mail-in voting could hurt him, so they are attacking mail-in voting, they're sending 50,000 goons to swing states on election day to intimidate black and brown voters at the polls, they're going to challenge bad results in court after the election, which we know 'cause he's told us that, right? And he wants to install a friendly Justice in case those court challenges make it up to the Supreme Court, which they've openly said.
17:12 Rhiannon: Right.
17:12 Michael: This isn't subtle. He doesn't disguises intentions, there aren't secret plans within plans, right, it's happening out in the open, this plan to subvert American democracy and Coney Barrett is a big part of it. She's the friendly Justice, and it's the single biggest consideration for him in who to choose the nominee. Will they be a friendly vote when his ability to retain power is on the line?
17:37 Rhiannon: Right, right.
17:38 Michael: So she's aware of that. There's no way she's not. And even if she somehow was, like he definitely fucking brought it up to her. Right, this is the guy who asked James Comey for a loyalty oath. This is the guy who doesn't try to seduce women, he grabs them by the pussy.
17:55 Rhiannon: Yep. That's our President.
17:57 Michael: Yeah. This guy sat her down, and was like, look when push comes to shove, are you my fucking Justice?
18:03 Rhiannon: Exactly.
18:03 Michael: And it doesn't really matter how she answered, whether she was coy about it or she straight up told him, because he left confident enough to nominate her, that's the important thing here to understand is she is a part of this, right. Maybe Biden wins big enough that they can't steal it and this never gets put to the test, but you should always remember, no matter what some sort of fucking loser tries to tell you that she's a brilliant jurist or she's very fair-minded or a good person. No, she's not. She fucking sold out our country and willingly signed on to this plan to subvert our democracy so she could get a Supreme Court seat. That's who she fucking is.
18:42 Peter: Yeah.
18:43 Rhiannon: Exactly.
18:47 Peter: Yeah. Okay, so yeah, we're a little bit into this episode, and I think it's time to talk about the weird religious shit that this lady is up to.
18:54 Rhiannon: Yes.
18:55 Peter: One of the biggest discussion points of Coney Barrett's nomination, and something we mentioned last week, is her involvement with a religious group called People of Praise.
19:04 Rhiannon: Yeah, this group is super, super far right. They believe that husbands are the head of the household, and they assign people advisors. Peter, I think you mentioned in our last episode, that until recently, the People of Praise called these advisors, the advisors for women, they called them handmaids. And that terminology, by the way, it was disposed of fairly shortly after the New York Times wrote about it, so obviously it's safe to say all they're doing is covering their asses.
19:38 Peter: They're nominally Catholic, right? They're...
19:41 Michael: They're nominally ecumenical.
19:41 Peter: Oh, sorry, yeah.
19:44 Michael: So they're basically Catholic. The vast majority of their membership is Catholic.
19:48 Rhiannon: Yes.
19:48 Peter: Yeah.
19:49 Michael: And according to Reuters, the group shares a preference for charismatic worship, which can involve speaking in tongues.
19:57 Peter: Nice.
19:58 Rhiannon: Love that.
19:58 Peter: Yeah, I like that they wanna stay Catholic, but just start adding in all the most insane things from American Protestantism.
20:05 Rhiannon: Right, let's do Catholicism, but at the circus.
20:09 Peter: Yeah. We love the top-down institutionalized pedophilia of the church, but we'd love to throw in some river baptisms if we could. Can we get that?
20:19 Rhiannon: That's right.
20:21 Peter: So look, the bottom line on this stuff is very simple, she is a religious zealot, she will be asked about whether her religion will influence her rulings and she will say no, and that will, for all intents and purposes, be a lie. Of course, she is influenced by her religion. If you think that someone can have a religion that shapes every single aspect of their life to the point where they are like pledging loyalty to a religious group, but then not let it influence how they view the law, you're delusional, you are a sucker.
20:49 Rhiannon: Right. Right.
20:50 Peter: Coney Barrett wrote articles in the late '90s about how devout Catholic judges could not enforce the death penalty and should recuse themselves from those cases, with a footnote that cited to similar articles about abortion. So even though in the case of the death penalty, I'd agree with her, she has openly argued that religion should influence judges.
21:08 Michael: Right.
21:09 Rhiannon: Maybe the one thing that's more important to her is the conservative political project, so she has said before that, for example, even though she doesn't religiously agree with the death penalty, she helped Justice Scalia when she was a clerk...
21:25 Peter: Kill a man.
21:27 Rhiannon: Right. She helped Justice Scalia kill a man by execution by writing opinions that argued that somebody should get the death penalty.
21:32 Peter: I love that I was just making a joke there, and then because you're a defense lawyer, you were like, exactly.
21:38 Michael: Peter was talking about them doing the most dangerous game. She wrote an article saying that Catholic judges should recuse themselves from death penalty cases, but then when her confirmation was up was like, I'll do my duty as a jurist, right, as a judge.
21:53 Rhiannon: Right.
21:54 Peter: Yeah, so there's a quote being thrown around from a 2006 speech she gave, a commencement speech, where she said, "our legal career is but a means to an end, and that end is building the Kingdom of God." That would seem to indicate that she understands the law as being part of a religious mission. USA Today wrote an entire article claiming that this quote is taken out of context. I was pretty fascinated by how that could possibly be true, given how that quote reads.
22:21 Michael: It's a pretty blunt quote.
22:22 Peter: Yeah.
22:22 Michael: It sorta speaks for itself.
22:24 Rhiannon: Exactly.
22:25 Peter: Yeah, so she was giving a commencement speech at Notre Dame Law, so USA Today argues that it's taken out of context because she wasn't really talking about the separation of church and state, she was just giving students advice, but that's not what taken out of context means.
22:38 Michael: Right. My advice is, go forth and do God's will in your career as jurists.
22:44 Rhiannon: Right.
22:45 Peter: Right. The entire point is that she's framing the practice of law as a means to an end, and that end is the fulfillment of their religious virtues.
22:53 Rhiannon: Exactly.
22:54 Peter: That's the context. Fucking USA Today.
22:55 Rhiannon: The context is she's talking about the law, and she's talking about people in the future who will work in the law, and she says, do God's will.
23:02 Peter: Also, imagine you're at the Notre Dame law commencement, and it was just like the highest ranked school you could get into so you're stuck there and this fucking insane woman is like, "You will do God's work." And you're like, "Jesus Christ."
23:19 Rhiannon: Yep.
23:20 Peter: Okay, so I wanna talk briefly about the contours of this discourse, because the primary reaction on the right to criticism of her belonging to this pseudo-cult is that it's anti-Catholic discrimination, and that will be the narrative you hear from the GOP on this. Not in small part because they need to win over Catholic voters in Pennsylvania and the Midwest, and I won't even get into the fact that every fucking American Protestant thinks that Catholicism is like a demon cult.
23:48 Rhiannon: Right.
23:48 Peter: And the Pope is literally the antichrist, whatever. This shit is simple. If your religion influences how you interpret the law, it's fair game, and I'm well past my teenage atheist phase, but I do find it a little frustrating how we're not allowed to talk about how bizarre these people are. Sorry, but the people who are in some little cult where you swear a loyalty oath and have advisors called handmaidens... freaks, freaks, right?
24:12 Rhiannon: Right.
24:14 Peter: I don't care how smart you are, I don't care how high your IQ is, if you get caught up in this stuff and build your life around it for decades on end, sorry, but your brain is not doing great, like something's wrong with it, and if these people didn't come from fucking high society money, they'd be getting Waco'd by the ATF, but instead, for some reason they are feeding into our country's most powerful institutions. It's fucking absurd.
24:38 Rhiannon: Yeah.
24:41 Michael: Right. And like the idea that this shit is off-limits is so ridiculous, because every other political office, religion is an issue.
24:48 Rhiannon: Yes.
24:50 Michael: Candidates for President, Senate, House, whatever, they regularly get asked about their religious beliefs at debates for public scrutiny all the time.
24:57 Rhiannon: Sure. Yeah. Right.
24:57 Peter: Right. You gotta kiss Jesus on the cheek to fucking get any public office in this country.
25:04 Michael: Right. And separately, one of the points we make on this podcast all the time is that things like textualism or originalism or purposivism or whatever don't actually matter, that when push comes to shove, those are no obstacles for conservative judges enacting conservative policy goals. Nor are they obstacles for liberal judges to enact liberal policy goals, like you can construct an originalist argument for pretty much whatever you want. But those things are of course in bounds, right, these are the okay things to be interrogating about. Amy Coney Barrett, what's her preferred method of statutory interpretation and what's her approach to interpreting the Constitution?
25:44 Michael: It's such bullshit. So we're supposed to look into this stuff that doesn't matter, but we're supposed to ignore the actual world view and beliefs that shape how she will decide these cases.
25:57 Rhiannon: The stuff that she's explicitly saying matters to her in doing her job.
26:02 Michael: I'm not saying she shouldn't be a judge or a justice because she's Catholic. I'm saying that if her Catholicism shapes her beliefs, then that's worth interrogating what those beliefs are and how that will impact her judgment.
26:16 Peter: Yeah. Also worth noting, though, Catholics have had a majority on the Supreme Court for 30 years. I don't really know what this is, but for some reason, there is some sect of Catholics that are just geared towards legal academia and dominate it, just they are filling the top ranks of our courts in a way that is wildly disproportionate. The idea that the Supreme Court is discriminating against Catholics is absurd. It's majority Catholic right now.
26:45 Michael: Yeah.
26:45 Rhiannon: Yeah. Who else is Catholic, Peter?
26:47 Peter: Roberts is Catholic, Thomas is Catholic. Alito is Catholic, Sotomayor is Catholic, Gorsuch, Episcopalian raised Catholic, so he probably just couldn't find a church nearby or something and just went... Found an Episcopalian, and Kavanaugh is Catholic. The fact that the Court is majority Catholic should be plenty of evidence that there is not some like system of discrimination that is operating to exclude Catholics here.
27:11 Michael: People who are opposed to her nomination want a devout Catholic Joe Biden to nominate someone in her stead.
27:20 Rhiannon: Right, right. There you go. Yeah.
27:22 Michael: Come on! But look, like you bring this up, the idea that the way her Catholicism might like shape her view of the law should be fair game, you literally get called a bigot and not just by the right. This was happening from liberal law professors within the last week of recording this. Some professor in North Carolina, I think, said that people who wanna bring up her Catholicism need to take a look in the mirror and think about when you decided that religious discrimination is okay.
27:49 Peter: Dipshit.
27:50 Michael: First of all, Professor Hessick, and I mean this with all my heart, eat shit. And more generally speaking, this is just another example of how refusal to accept that judging is political, that judges wield political power and shape policy, and in fact, liberal participation in hiding that fact just serves as an obstacle to gaining power ourselves.
28:14 Peter: Yeah.
28:14 Michael: And given who the opposition is, that means it leaves us unequipped to oppose literal fascists.
28:21 Peter: Yeah.
28:21 Michael: And you know what, if this makes me a bigot, so be it, but if Amy Coney Barrett is gonna be deciding my rights for the next 30 years, I think it's fair for me to ask whether she's ever spoken in tongues.
28:34 Peter: Yeah.
28:35 Rhiannon: Yeah, that's right.
28:36 Michael: I think I have the right to know.
28:36 Rhiannon: That's absolutely right. If a fascist leader says, God wants me to do fascism, it is not religious discrimination for me to question those religious beliefs and how they play into this fascist leader's political views.
28:51 Peter: And fucking brace yourselves for the Republicans' indignance about all of this, it's gonna be absolutely fucking insufferable. They would nominate David Koresh if he was still alive, but they can't.
29:05 Michael: Guys, I need to get some ice for my drink, so if we could just pause for an ad, I'd appreciate it.
29:12 Rhiannon: Roll that ad.
29:13 Peter: So one thing that might have popped out when we read Coney Barrett's biography out to you is, why her. She's got an impressive track record, sure, but it's not that impressive by Supreme Court nominee standards. Notre Dame would, I think, make her the only non-Ivy League, non-Harvard, Yale Justice on the Court. She had some prestigious clerkships and was a professor for 15 years, but there are plenty of young conservative judges out there. So you might have asked why was she the clear front runner? And the answer to that is fairly simple. In 2017, during her confirmation hearings for her appointment to the Court of Appeals, Dianne Feinstein asked some aggressive questions that seemed to attack Coney Barrett's religion directly. She famously said, "the dogma lives loudly within you," which I'm sure that she thought was a very powerful line, but it backfired.
30:05 Peter: She was trying to portray Barrett as being too heavily influenced by her religion, but it came across as sort of casting aspersions against religion itself. As a result, the right rallied around Coney Barrett and she became like a bit of a hero in their circles. Just like with Brett Kavanaugh, there's nothing they love more than this completely manufactured martyrdom.
30:26 Rhiannon: Exactly, that's their favorite kind of ammo.
30:28 Peter: If they perceive the left to be attacking someone, they rally around them by default, it doesn't matter what you fucking did. So there are 50 more qualified judges getting passed over because American conservatism consists almost entirely of a politics of completely imagined grievance. Like, are they being mean to her? Guess what, we're gonna make her a fucking Supreme Court Justice, that is literally the thought process of the Republican Party.
30:53 Rhiannon: Yes.
30:53 Michael: Yeah.
30:54 Peter: And I guess maybe that brings us to what the confirmation process actually is and what you can expect in the coming weeks. Michael, I'll leave this to you, 'cause you're the smart one.
31:07 Michael: Well, in brief, there really isn't any set way for the nomination process to go. Under the Constitution, the Senate has to give advice and consent, but it can do that however it wants, and so they could just take it to a straight vote, if they want to. The way it's been done traditionally has been that the Senate Judiciary Committee takes care of pretty much everything. They do a background investigation, which includes getting a lot, a lot of documents, financial records, work stuff, whatever, closed door hearings with the nominee. While this is ongoing, the nominee will then have one-on-one meetings with Senators, both in the Judiciary Committee and outside of the Judiciary Committee. I think Sotomayor met with 80 or 90 Senators one-on-one. And then there will be like public hearings before the Judiciary Committee, which can be tame, like Gorsuch, or they can be more like Kavanaugh's, right, and then the Committee votes to send the nominee forward or not.
32:03 Rhiannon: And when you say send them forward, you mean to the whole Senate...
32:06 Michael: To the full Senate.
32:07 Rhiannon: For a final vote.
32:08 Michael: And so if that goes along party lines, it will be like 11 to 9 Republican in favor and the nominee will go forward, and then within a few days, the full Senate will vote.
32:21 Peter: Yeah.
32:22 Rhiannon: Right.
32:23 Michael: That's it. That process usually takes like six to eight weeks, which is not enough time. In this case, I think if they wanna get it done before the election... To hear a case about the election, you wouldn't have to get it done before the election, but maybe they just wanna have it in their back pocket. So they're gonna have to rush it.
32:37 Rhiannon: Yeah, and in fact, it'll be the shortest timeline for confirming a Supreme Court nominee kind of in the modern era. And I just wanna break down a little bit like what that expedited timeline means for the confirmation process. Outside of Coney Barrett as a jurist, this confirmation process kind of like Kavanaugh's will be about breaking norms, and I think we should be looking out for during her confirmation the extent to which norms are broken. The timeline to get Coney Barrett confirmed before the election is one way that norms are being broken to the conservative advantage, but then a whole bunch of norm-breaking kind of flows from that too. What typically happens during the confirmation process for a Supreme Court nominee is that a nominee fills out this really lengthy questionnaire, it's sort of a comprehensive background investigation into who the nominee is as a person and as a judge, and these documents, the final kind of completed questionnaire, this ends up being hundreds and hundreds of pages long, you can look up Brett Kavanaugh's on the Judiciary website.
33:43 Rhiannon: The hearing in the Senate Judiciary Committee, in many aspects, they sort of flow out of that questionnaire. Staffers comb through the answers that the nominee provides, they do fact-checking, they craft questions for the Senators to ask during the hearing, so it's so much work that typically there is a 28-day minimum period between receipt of the completed questionnaire responses and any hearing, but with Republicans saying that they want Coney Barrett confirmed before the election, there's no way that that happens here.
34:15 Rhiannon: Michael mentioned a background investigation, it's literally the FBI. The FBI typically does their own fully detailed look into a nominee's background.
34:24 Peter: Yeah. They have to put all of their assassinations of civil rights leaders on hold.
34:31 Rhiannon: And they privately share those confidential findings, but they share them with the Senate Judiciary Committee, and that's just not going to happen here in the Amy Coney Barrett case, because it's not going to happen qualitatively or on the scale that it usually would if there's this crazy condensed timeline, it's just not possible. And the last thing I wanna say about the confirmation process and how norms will be broken is just a word about the preparedness of Senate Democrats on the Judiciary Committee. News came out last week that Senators, not just staffers, but Senators themselves were raising red flags about the competence of Dianne Feinstein to lead Democrats in the Judiciary Committee during this confirmation process.
35:15 Rhiannon: Twelve Senators have anonymously sounded this alarm, and while they're anonymous, this is a big deal. Dianne Feinstein is the ranking member of the Senate Judiciary Committee. And the people working for her and with her do not think she is fit for the job or equipped to lead in the way that she needs to in this moment. And just like having that distrust in leadership means that the party then goes into the confirmation hearings, which are already chaotic, and particularly so in this case because of the timeline crunch, but they're going into that without as unified and strong a front as they could, if everyone was on the same page.
35:52 Peter: Although we should add, though, that there aren't any real procedural mechanisms for the Democrats to stop this. This is all about whether or not they could put on a strong enough case that the Republicans would have to be like, oh, shit. Is this worth it? Do we need someone else, etcetera. It's gonna be tough to do, like Amy Coney Barrett's record's gonna be squeaky fucking clean.
36:12 Michael: Like if Kavanaugh didn't do it, then, like...
36:14 Rhiannon: Right.
36:14 Peter: Right, exactly. But this is interesting because in large part, Kavanaugh, Clarence Thomas, those confirmation hearings that were about allegations of wrong-doing, this one's gonna be about ideology, like Robert Bork was in the late '80s.
36:28 Rhiannon: Yes.
36:30 Peter: The Republicans folded with Bork, they won't fucking fold here. They are ready to fight.
36:35 Michael: Can I give a contrarian position on that Feinstein article?
36:40 Peter: Yeah.
36:40 Rhiannon: Sure.
36:41 Michael: The article talks about the confirmation hearing and her fitness for that, but it also talks about replacing her as head of Judiciary next term, especially if Democrats take the majority. And I read this whole thing as, in part, a response to her talking about opposing filibuster reform, opposing court reform. Chuck Schumer's talking about this stuff like leadership is behind it, and Feinstein, all of a sudden saying she's gonna be an obstacle to that, and then within 48 hours, there's a brutal hit piece calling her senile. I think that's a good sign that Democrats are like, fuck this, if you're not on board, we're gonna drag you through the mud and replace you and get people who are with the fucking program.
37:24 Peter: That's a good point.
37:24 Michael: To do what needs to be done.
37:26 Rhiannon: No, no, I agree, and I think distrust in Dianne Feinstein as an obstacle to sort of progressive gains in Congress and that kind of thing, that's a good thing, but specifically in terms of going into this confirmation hearing, I think it's really...
37:40 Peter: Prepare to watch an incredibly senile woman with a barely functioning brain go up against a very, very smart person in her prime. It is gonna be...
37:52 Rhiannon: Right, exactly. And just to finish the point, the members of the party who are trying to oppose this nomination or at least call into question a nominee's record, a nominee's ideology, they typically work together to present cohesive thematic lines of questioning and arguments that build on one another, and they build a narrative that the public can follow, right. Dianne Feinstein is flat out not able to lead the Democratic members of the Judiciary Committee in a way that unifies and strengthens that presentation, and if you don't think that's a big deal, and this is just how it's always done, and Dianne Feinstein earned that position or whatever the fuck, then ask yourself why Republicans made Lindsey Graham the chairman of the Judiciary Committee over Chuck Grassley, right. Lindsey Graham knows how to play for TV viewers, he knows how to ask a question, he knows how to craft a narrative.
38:40 Michael: Damn right. 100% on point.
38:43 Peter: Yeah, so finally, we should talk a little bit about some of the press Coney Barrett has gotten. There's been plenty of skeptical and critical media coverage, but alongside it, I've seen a trend that we've seen before, with Gorsuch and Kavanaugh, ostensible liberals writing about how actually she won't be that bad.
39:00 Peter: The first is a Bloomberg piece from Noah Feldman who clerked at the Supreme Court alongside Coney Barrett, and that's important, because every time you see an op-ed like this, it will be from one of their personal friends...
39:13 Michael: Yes.
39:14 Peter: Without fail.
39:16 Rhiannon: Right, yes.
39:17 Peter: The piece is titled "Amy Coney Barrett Deserves to be on the Supreme Court." Already mad. Literally, no one deserves to be on the Supreme Court, but whatever. The gist of his piece is nothing more than one, Amy Coney Barrett was nice to me, and two, she's really smart, so she should be on the Court. That's it, right?
39:32 Michael: Yes, yes.
39:33 Rhiannon: Cool.
39:33 Peter: The most telling line to me is when he says, "I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed," which leads to a fairly obvious question in my mind, what are those principles, dude?
39:48 Rhiannon: Exactly. I have questions about the principles, motherfucker.
39:52 Michael: That's my objection.
39:54 Peter: That's the speaking in tongues part or whatever her handmaiden tells her? [chuckle] Just being committed to principles and sticking to them isn't like a good thing, like wow, that guy is really committed to his principles. That's not always good. Frequently bad. Yes, I agree that she's committed to her principles, and those principles are steeped in batshit crazy reactionary ideology.
40:13 Rhiannon: Exactly.
40:14 Peter: He ends his piece with, "I'm going to be confident that Barrett is going to be a good Justice, maybe even a great one, even if I disagree with her all the way." Like Jesus...
40:24 Rhiannon: God...
40:24 Peter: What the fuck are you talking about?
40:24 Rhiannon: Dammit, dude.
40:25 Peter: Like Jesus Christ, we talk about this sort of thing all the time, but I'm gonna lose my fucking mind, like, reading this. These people view the law as completely detached from human existence, such that he can disagree with everything she does and still thinks she's doing a good job. What does that even mean? You could never say that about any other profession in the world, like, "Oh, I think he'll be a great basketball player, although I do not believe that he is competent at playing basketball in any specific way."
40:55 Peter: If you think that everything someone is saying is wrong, but you still think they're doing a good job, you need to take a step back and contemplate what the fuck you think the law even is.
41:04 Michael: Yes.
41:05 Rhiannon: Right, the person who can say something like that is a person who lives a life that law never touches them, right? Law doesn't hurt you, law doesn't have the power to ruin your life, to hurt the people that you love, and so that's the kind of person who can say something as absolutely inane and disconnected as "I disagree with a judge on literally every issue, but she's a good judge."
41:27 Peter: Right, yeah, I don't know much about Noah Feldman, but he's writing this from some fucking town house, right? Go fuck yourself, dude.
41:34 Rhiannon: Exactly, exactly.
41:35 Peter: Like that's the bottom line. To these people like this is all intellectual games, they're rich and comfortable, and the outcomes of these cases have no material impact on their lives unless they are about fucking shareholder value.
41:46 Michael: I was gonna say, which is why I said on Twitter that you should make this op-ed impact his material life, Harvard law students. [chuckle]
41:54 Rhiannon: Yeah, right.
41:56 Michael: Make him think twice next time he wants to go publicly to bat for a fascist. [chuckle]
42:02 Peter: Yeah, like this guy just thinks that the Court is like a place for a spirited debate. In 2029, he's gonna be reading a decision where the Court upholds the concentration camps in Central Ohio, and he's gonna be like, "Well, this logic is impeccable, great work, Amy." [chuckle]
42:17 Rhiannon: Right, exactly.
42:19 Peter: The other piece that jumped out and it's a Washington Post piece from again, one of Coney Barrett's colleagues at Notre Dame, O Carter Snead, is that a real name? What's the O stand for, bro? I bet it's embarrassing. He doesn't like it. The piece is titled, "I've Known Amy Coney Barrett for 15 Years. Liberals Have Nothing to Fear."
42:40 Rhiannon: Michael. Michael, teeing up.
42:46 Michael: We've looked into O Carter Snead. You might think from that headline that this is another in the genre of liberals going to bat for conservatives, but no, it turns out he clerked for a conservative judge, he worked for George W. Bush as general counsel to his Bioethics Committee or something, where he focused on abortion issues. As a bioethics expert, he spends a fair amount of time and energy engaging in pro-life advocacy, legal work, coming up with clever arguments as to why abortion should not be legal. He wrote an article in 2016 saying that it's a dubious proposition that the Constitution protects a right to abortion.
43:29 Peter: Right. Yeah, that's the guy telling you not to worry, go fuck yourself, you disingenuous piece of shit. We were talking about this yesterday. It's not like don't worry. It's like, shh, shh, shh, it'll all be over soon.
43:41 Rhiannon: Right.
43:42 Michael: Yes, exactly.
43:43 Rhiannon: Right, right, right.
43:44 Michael: Exactly.
43:44 Rhiannon: Yeah, yeah, yeah, exactly.
43:45 Michael: This fucking dead-eyed piece of shit.
43:48 Peter: We're gonna find out in 10 years if this is not a real person.
43:50 Michael: Yeah.
43:51 Rhiannon: Right?
43:52 Michael: It looks like that is like bots that generate fake images. Yes, that's exactly right.
43:56 Rhiannon: Yeah.
43:57 Michael: But look, it's not an editorial offered in good faith. This is some asshole taking a victory lap, he's frigging smugly telling us, "Don't worry, this won't hurt a bit," while oiling up a fucking four-foot metal rod he's gonna shove up our ass.
44:15 Michael: That's what this editorial is, and so if you subscribe to The Washington Post, I want you to reconsider that, like seriously? If you're listening to this podcast, I assume you're angry and distraught about this, and you should just think about what type of person thinks this is what you need to be reading right now, like how much disdain they have for you. In the meantime, I'm gonna get one of my college buddies to pitch the Washington Post on an op-ed titled, I've Known Michael for 20 Years, and O Carter Snead Has Nothing to Fear, about how I'm absolutely not going to travel to Indiana and beat the living shit out of him.
44:52 Peter: Yeah, I will vouch for Michael. He is not going to beat O Carter Snead within an inch of his life.
44:57 Rhiannon: I personally have known Michael for a long time. I've never seen him beat someone's ass and put them in the ER, you know?
45:04 Michael: So sleep easy, O Carter. [laughter]
45:09 Peter: Oh, yeah, so look, there are gonna be people like this who try to convince you that she's a reasonable person or that she's smart, we should wait and see how she rules, and that'll be a fun little thought experiment for people who care about the minutiae of statutory interpretation, but for everyone else, we know what's coming. Reproductive rights are in peril, healthcare is in peril, voting rights are in peril, LGBT rights are in peril, workers' rights, immigrants' rights, all in danger, unless and until the Democrats engage in systemic reform of the Court.
45:39 Michael: Right.
45:39 Peter: This isn't about Amy Coney Barrett. If it wasn't her, it would be someone else and we would have an episode about how all of their beliefs are exactly like hers, whatever, they would be in a different cult. This is about a political party that is fairly openly engaged in a transition to outright fascism and its desire to seize power over American courts to aid that transition. The Federalist Society is an ideological organization that is designed from the bottom up to ensure that conservatives have control over the judiciary, over legal academia in this country, that they have undue, unearned influence. And she's part of that, that's why you have someone who rises from just being a professor at a second tier law school to all of a sudden, bang, Supreme Court within four years. We want you to know who this woman is, yes, but she is not unique, the rot is deep and systemic. Yes.
46:34 Rhiannon: Exactly.
46:35 Peter: Yes, Amy Coney Barrett is a demon from hell, but hell is full of demons, and they're all in the fucking Federalist Society. [laughter]
46:45 Michael: Yeah.
46:45 Rhiannon: That's right, that's right.
46:46 Michael: That's right.
46:54 Peter: Alright, next week is a listener Q&A episode. All of these events have given our listeners a bunch of questions and we will be answering them with 100% accuracy, [chuckle] a lot of questions about the elections, about court reform, just about the law generally, law school, etcetera. A lot of should I go to law school? Which I can answer right now, if you'd like me to.
47:18 Peter: And then we will be commencing our month-long election extravaganza, starting with the Electoral College.
47:27 Rhiannon: Yay!
47:27 Michael: Yay! [chuckle]
47:29 Peter: Follow us on Twitter at @5-4pod. [chuckle]
47:39 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.
47:58 Leon: From the Westwood One Podcast Network.