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I saw on the news that people are protesting against supreme court nominee Amy Coney Barrett.

I am not looking for any opinions, but would appreciate some background on these protests against her.

  • Comments are not for extended discussion; this conversation has been moved to chat. – JJJ Oct 18 at 12:58
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    Comments moved to chat. Please don't use comments to debate the question matter. If you would like to answer, please (reopen and) post a real answer. If you would like to discuss, please use the chat function. Please try to limit these comments to suggesting improvements to the question. – JJJ Oct 18 at 12:59
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    The downvotes seem to assume this is a push question. However, if you step back and treat it as a hypothetical Martian looking at the subject matter, it does seem like a lot of protesting going on about something that might be considered fairly pedestrian out of a US context. I am not saying a SCOTUS nomination, and especially not this one, is pedestrian, only that a person naive wrt to US politics might think it so. The OP's posting history here has little, if any, US content. – Italian Philosophers 4 Monica 2 days ago
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    To all commenters on this question and its answers: saying "people are protesting because X" is not an assertion that X is correct. The question is asking why people are protesting, so if someone has said "I'm protesting because X" then that is a valid answer to this question. – Paul Johnson yesterday
  • A more neutral rewrite could be "What are the main arguments to Barrett's SC nomination?" Some of these are procedural, just about the timeline of the nomination itself, some link to quid-pro-quo expectations that she will rule a certain way on ACA/ voting rights/ 2020 election/ census/ gerrymandering etc., some are about her stated/inferred attitudes/ bias/ neutrality, some about her judicial record esp. on social, reproductive, gun etc. issues. Some people aren't objecting, and some are mixed, so "Why are [some] people[/groups] protesting..." kind of misstates things. – smci 16 hours ago
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There are a number of reasons why people oppose Barrett, among them:

  • Her stances on political issues: There is a fear that the bodily autonomy of women is under attack (see her stance on Roe v. Wade), as well as the human rights of LGBT+ people (see her stance on the rights of trans people and marriage equality), and that access to health care is in danger (see her stance on the ACA). Trump and the GOP specifically choose justices for those reasons:

    The GOP platform said Trump’s Supreme Court appointments would “enable courts to begin to reverse the long line of activist decisions including Roe, Obergefell, and the Obamacare cases.”

  • Some have the impression that this is essentially a "stolen" seat. Republicans have blocked appointments by Obama for the supreme court - as well as for lower courts - with the reason being that appointments shouldn't happen during an election year. South Carolina senator Lindsey Graham, for example, said:

    "I want you to use my words against me," Graham said at the time. "If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say, 'Lindsey Graham said let's let the next president, whoever it might be, make that nomination.'"

  • Trump has been very clear that he may not accept the election results and that he needs to seat a justice to successfully overturn the result of the election. Given Trump's authoritarian leanings, there is a fear of an anti-democratic coup. Barrett declined to commit to recuse herself from such a case.

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  • Comments are not for extended discussion; this conversation has been moved to chat. – CDJB 20 hours ago
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    Why should Barret recuse herself? – Burt 3 hours ago
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    President nominates a justice at the last minute -> new justice is the swing vote to see him re-elected definitely bears the appearance of a corrupt quid pro quo. Ideally judges should avoid even the appearance of corruption. – Guy F-W 2 hours ago
  • @Burt because it's a conflict of interest (see the linked chat for a discussion about it) – tim 2 hours ago
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    @GuyF-W why is she the swing vote? The court would be a 6-3 conservative court – Burt 1 hour ago
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There are several major reasons why various people would oppose her nomination. I'm afraid that no quantitative survey data available, but off the top of the recent news:

  1. The procedure. Republicans took a huge criticism on their flip-flopping regarding the very fact of electing a SCOTUS nominee during the last year of presidency — the Republicans introduced a drastic change to the procedure in a similar situation in 2016 and now fail to stick with it. This has been extensively discussed in this question and its answers.

  2. Possible failure to qualify as a judge. Recently, Amy Coney Barrett gave responses that show that she either has something to hide by lying, or, if she genuinely fails to know the core provisions of the Constitution of the USA, casts a serious doubt on her professional suitability as a layer, leave alone a SCOTUS member:

    • Judge Amy Coney Barrett has refused to answer the question about whether the Constitution gives the President the authority to unilaterally delay a general election under any circumstances. Instead, she said that she needs to study this issue, consult with her law clerks and colleagues. The U.S. Constitution (Article II Section 1) does not allow the President doing this, and it would be simply impossible for a "highly qualified judge" not to know this.
    • Judge Amy Coney Barrett refused (source same as above) to answer the question about whether it is legal to intimidate voters at the poll. Her response was “I can’t apply the law to a hypothetical set of facts.” Senator Amy Klobuchar (D-Minn) cited a U.S. Code article (Title 18, Chapter 29, Section 594) that calls for a fine, imprisonment or both for "whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote." Again, it is virtually impossible for a qualified judge not to know this.
  3. Interpretation of the Constitution. Amy Coney Barrett is a strong supporter of Originalism, a concept of Judicial interpretation of the Constitution based on the original understanding at the time it was adopted.

    • People who oppose the Originalism (and lean to another Judicial interpretation) may not want Amy Coney Barrett a SCOTUS member because of the partisanship;
    • People who support the Originalism may also believe in some its weird implications, like impossibility of appointing a female judge; see, for example this Hillary Clinton' tweet:

    Hillary Clinton's tweet on Originalism

  4. Her other actions may produce a strong opposition as well:

    • An indicator of Judge Amy Coney Barrett's extreme conservatism is her position in the Court of Appeals for the Seventh Circuit in the "employee versus employer" cases, in which she almost always sided with employers;
    • Judge Coney Barrett declined to commit that she'd recuse herself on a possible election dispute case or in the California v. Texas Affordable Care Act case.
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  • Comments are not for extended discussion; this conversation has been moved to chat. – CDJB yesterday
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    Regarding her lack of qualification: she was not able to name the five freedoms outlined in the First Amendment. Gallingly, the right to protest was the one she forgot. Another point: Her lack of notes seemed to show a lack of respect for the process, not taking notes indicated not wanting to make any commitments or follow up. Lack of notes or preparation (indicating an assumption of guaranteed confirmation) led to a number of exchanges concerning past judicial opinions where she asserted that she had written things and (democratic) senators stated that she had written different things. – tobi_s 11 hours ago
  • Why should she recuse herself in those cases? Also, doesn't it make sense for a prospective supreme court justice not to discuss issues which may come to her in court? It seems that doing so is more likely to come back and haunt her than not. – Burt 3 hours ago
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Why are people protesting against Supreme Court nominee Amy Coney Barret

People are protesting her because they feel her nomination is the second illegitimate nomination Trump has had. When Antonin Scalia died in March of 2016 republicans broke 100 years of precedent and claimed 8 months was too close to the election to hold hearings and confirm President Obama’s choice. This choice which by precedent should have been made by Obama became President Trump's first Supreme court nominee. More recently when RBG died a few weeks before the election the Republicans again break with 200 years of precedent, and their own 3 year old previous position, and holding hearings literally while people are voting.

These two “stolen” seats by democratic reasoning; give Republicans a 6-3 Supreme Court advantage and threaten to repeal many democratic wins for the last few decades.

This will ultimately force the next Democratic president if he controls the senate and House to likewise break precedent and pack the Supreme Court to reverse the GOPs gains. Which has its own problems for the nation.

Some Dems are upset with the short sightedness on the part of the GOP which brought us to this point and are taking it out on the Jurist.

From the Comments

@eyeballfrog
The idea of two seats being stolen is self-contradictory, because the argument in favor of one being stolen is an argument for the other being legitimate.

Not at all. There were two different precedents broken. There was a precedent for confirming Justices in the last year of a President's term in office, just not within 3 months of the election.

Examples of Nominations during an election year, just not within 3 months of an election:

  • 11 Months before the election, November 30, 1987, President Ronald Reagan nominated Justice Anthony Kennedy to fill the vacancy created by the retirement of Lewis Powell.
  • 9 months before the election, February 15, 1932, President Herbert Hoover nominated Benjamin Cardozo to succeed Oliver Wendell Holmes
  • 10 months before election, January 28, 1916, Wilson nominated Louis Brandeis to replace Joseph Rucker Lamar, who died on January 2, 1916
  • 4 months before an election on July 14, 1916, Wilson nominated John Clarke to replace Charles Evans Hughes
  • 8 months before the election, March 13, 1912, President Taft (a Republican) nominated Mahlon Pitney to succeed John Marshall Harlan,

There was another older precedent in not confirming a Justice in the last 3 months prior to an election regardless of who controls the senate. Trump will be the first President in 200 years to nominate a Supreme Court Justice this close to an election. ( First ever to nominate during the election as about 25% of the votes some 30 million have already been cast ).

  • When Sherman Minton retired from the Supreme Court Oct 15, 1956, President Eisenhower waited until after the 1956 Presidential elections to nominate William Brennan on Jan 14, 1957.
  • When supreme court justice Roger B. Taney died Oct 12, 1864, 27 days prior to the election; Abraham Lincoln did not nominate his successor until after the people had spoken. Lincoln went on to win the Nov 1864 presidential election and nominated his secretary of Treasury Salmon Chase to become chief justice Dec 1864.
  • When Robert Trimble died August 25, 1828, John Quincy Adams did not appoint a successor until after the 1828 election when he nominated John Crittenden Dec 17, 1828.
  • When supreme court justice John Jay resigned from the court June 29, 1795, President Washington did not appoint his successor until after he had won the Nov 1795 election, nominating John Rutledge Dec 10, 1795.
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    Plus Kavanaugh had his issues (even aside from the sexual assault allegations) and he was rammed through – Azor Ahai -- he him yesterday
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    To be fair Democrats also have claimed similar things in the past (we should wait for the next President, etc.) so "broke 100 years of precedent" is a bit strong. The strongest precedent in politics is "make the argument that best suits you now" and it applies equally to both sides :-) – TylerH yesterday
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    The idea of two seats being stolen is self-contradictory, because the argument in favor of one being stolen is an argument for the other being legitimate. – eyeballfrog yesterday
  • @eyeballfrog, thank you for the comment, responded at the end of my answer. – JMS 21 hours ago
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    The Abraham Lincoln example is not a good one: factcheck.org/2020/10/… – JonathanReez 21 hours ago
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The real answer to why there are protests is "because she's being appointed by a President of the opposite party of the people who are protesting." This happens pretty much every time anyone is nominated to the Supreme Court.

For example, even a quick search can find protests after the nominations of each of the last 6 Supreme Court justices to be confirmed (that is, all of the confirmations that took place during the age of widespread Internet usage):

Kavanaugh
https://www.cnn.com/2018/10/04/politics/kavanaugh-protests-washington/index.html

Gorsuch
https://www.politico.com/story/2017/03/neil-gorsuch-liberal-protesters-scotus-235659

Kagan
https://wach.com/news/local/tea-protesters-rally-against-kagan-nomination

Sotomayor
https://www.rollcall.com/2009/07/13/four-protesters-arrested-during-sotomayor-hearing/

Alito
https://womensenews.org/2005/11/alito-nomination-spurs-prayers-protest-over-roe/

Roberts
https://www.cnn.com/2005/POLITICS/09/12/roberts.hearings/


Particular issues that protesters cite in regards protesting protesting Barrett's nomination are:

1) She's viewed as an originalist

Originalists believe that the Constitution and laws should be interpreted according to the original intent of those who wrote and ratified or passed them. Leftists in the United States tend to oppose originalism and prefer instead to nominate judges who believe that the meaning of a portion of the Constitution or law can change over time without actually being legally changed by subsequent laws or, in the case of the Constitution, the constitutional amendment process.

Constitutional amendments in particular require widespread consensus that the change in question needs to be made. Amending the Constitution requires either:

  • Two-thirds of both houses of Congress propose the amendment or
  • Two-thirds of all state legislatures call for a convention to propose the amendment

And

  • Three-fourths of all states ratify the proposed amendment

That's obviously (and intentionally) a very high bar to set for changing the Constitution. So, it's much easier to appoint judges who will interpret it to mean something other than it was originally intended to mean rather than formally changing it to the desired meaning.

Inherent to the nature of liberalism or progressivism is the desire for change. Thus, liberals tend to prefer loose constructionist judges who believe that the Constitution should be interpreted in view of the contemporaneous views of society rather than originalist ones who believe it should be interpreted according to its original intent, as this is a much easier way to effect change than forming the high degree of consensus required to actually legally change the Constitution.

2) Anger over hypocrisy with respect to the Garland nomination

A major point of complaint is the Senate Republicans' hypocrisy in regards to the nomination of Barrett in view of the reason they gave for blocking the nomination of Merrick Garland by President Obama in 2016.

In 2016, Senate Republicans blocked President Obama's nomination of Merrick Garland to the Supreme Court saying that the next President should be able to choose the next justice since it was a Presidential election year. In particular, they cited then-Vice President Joe Biden's own statement on the matter from during the 1992 election year when Democrats controlled the Senate, but the President (Bush) was a Republican, where he had called for the President to not nominate and the Senate not to consider a Supreme Court nomination during the election season if a seat became open. Ultimately, no seat opened up in 1992, but one did in 2016 and the Republican-controlled Senate prevented President Obama from filling it, allowing President Trump to do so instead.

Of course, now that same group of Senate Republicans is confirming a justice nominated by President Trump to the Supreme Court, thus Democrats are protesting over their hypocrisy.

3) Judge Barrett is a conservative Christian.

In particular, she opposes abortion. Abortion is currently legally considered a constitutional right in the United States as the result of a series of Supreme Court rulings from several decades ago, most famously Roe v. Wade. Conservative Christians in the United States generally oppose abortion and most believe that Roe v. Wade and subsequent decisions affirming a Constitutional right to abortion should be overturned, believing that those rulings were not actually based on the original intent of any part of the Constitution. Liberals and most Democrats, on the other hand, tend to support having a right to abortion and want the decisions to stand. Thus, they oppose (and protest) the nomination of judges who they think might be likely to overturn them.

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    The fact that there have been protests before doesn't mean that the reason is that they disagree with who nominated her. There will always be people protesting political appointments - in each case, the reasons will be different, and the question was why are they protesting Coney Barrett's nomination – Glen O yesterday
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    "She's an originalist. Originalists believe that the Constitution and laws should be interpreted according to the original intent of those who wrote and ratified or passed them." According to Wikipedia, she's a textualist, which is a bit different from an originalist, as you describe it. For instance, it has been argued that the people who ratified the 13th Amendment did not intend for it to bar conscription, but a true textualist would have to agree that it does. But it seems that "textualists" often are such only when it suits them. – Acccumulation yesterday
  • @GlenO Sometimes there are legitimate differences in the reasons... but most of the time the differences just boil down to who is nominating the judge and the differences in ideology between the protesters and the President. The reasons given on the surface may vary, but most of them boil down to that. The majority of my answer lists particular reasons cited in this particular case, but, realistically, protests would have happened and at least 2 of those 3 reasons would have been cited by the protesters regardless of who Trump nominated. – reirab 22 hours ago
  • @ItalianPhilosophers4Monica Good point. Headers added to emphasize the particular complaints (including that one.) – reirab 16 hours ago
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The main reason that she in particular is being protested - beyond her views (which, while opposed to the protesters' views of course, are not particularly interesting or extreme for a Republican), and even beyond her election year nomination so shortly after Garland's denial in 2016 - is that she is replacing a liberal justice, and thus represents a significant change in the ideology of the Supreme Court.

Prior to Ruth Bader Ginsburg's death, the court had 4 Liberal justices and 5 Conservative justices, but one of those Conservative justices has played the role of moderate for the most part, and rulings have fallen on either side of the divide for the most part - undoubtedly more Conservative leaning than many would prefer, but many significant rulings have fallen the way of the Liberal justices over the past few years.

Now, with a 6 justice conservative majority, and with 5 of those justices being very solid Conservative voices, any politically charged ruling is seen as being much more likely to fall on the Conservative side.

This shift in ideology may be one of the most significant jumps in the Court's history; it is similar to that of Clarence Thomas replacing Thurgood Marshall, which was the last major shift in Supreme Court ideology, and in fact the last time that a Republican appointee replaced a Democrat appointee.

This is the reason for the particular focus on this justice - perhaps even more than Kavanaugh, despite his personal failings; he was replacing Anthony Kennedy, a moderate but Conservative Justice.

Note that this is also likely part of the reason the 2016 Senate refused to even consider Garland; he would have replaced Antonin Scalia, one of the more Conservative Justices.

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    Garland, however, was viewed as a moderate centrist as a worst case scenario for the right. There was zero expectation he'd be Ginsburg-tier liberal (not that he couldn't surprise, as Justices sometimes do). Obama specifically tried to pick a candidate that was more palatable to the Republican majority in the Senate. I've seen some people try to claim he would have easily won confirmation in the full senate, and was really just blocked by McConnell and a committee member or two, but I don't know how true that is. – zibadawa timmy yesterday
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    ACB is, on the other hand, in almost diametric opposition to Ginsburg on seemingly every vector of contention. – zibadawa timmy yesterday
  • I wouldn't call Kavanaugh a "very solid conservative." According to the methodology in this chart, for example, he's only slightly right of Roberts (and Gorsuch is only slightly farther right.) Indeed, of the 20 5-4 decisions in the last SCOTUS term, 4 of those were Gorsuch siding with the liberal justices in the majority (and only 7 of the 20 saw the 5 conservative justices vote together as the majority.) – reirab 16 hours ago
  • Otherwise, though, your answer raises a good point regarding the huge shift this represents for the court. Replacing Ginsberg with a solid conservative is a dramatic shift indeed. – reirab 16 hours ago
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    @ItalianPhilosophers4Monica The majority leader has a great deal of influence if not direct power. As he basically gets to decide if any piece of legislation goes to the floor for a vote for not, defiance of his will can lead to legislation you want passed, or at least brought to the floor for a symbolic victory or to grandstand for your constituents, never being brought forth. Of course united party opposition can similarly nullify the Majority Leader, but this creates a "is this a hill I want to die on?" issue. The committee is the big obstructor: a handful of Senators suffices to block. – zibadawa timmy 12 hours ago
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There are many fine answers here, but the main point that many are missing, and which might not be obvious to an external observer, is that filling the Supreme Court seat is important. If you are not familiar with United States government, the Legislative Branch (the Senate and House) create new laws, the Executive Branch (headed by the President) enacts the laws, and the Judicial Branch (headed by the Supreme Court) rules on whether new laws violate old ones. If the Supreme Court is not impartial, then even if a political party no longer has a majority, their nominees can block new legislation from the new majority once it's passed - even if they have no power in the Legislative Branch!

To put it another way, assuming each branch of government has roughly equal power, then a Supreme Court seat is roughly as powerful as 5.5 senators, or nearly 50 representatives from the House. Furthermore, there's no way to recall a Judge, even if everyone in the country thinks that they need to be. Appointing a Supreme Court judge is an extremely momentous decision, of equal if not greater weight to some of the most massive legislative decisions.

Putting aside all the other points about flip-flopping Senate Republicans and Barrett's opinions, whoever ends up in that seat has a good chance of being the deciding vote on many decisions, potentially for decades to come, many of which directly affect the average American. The big three that keep being mentioned are LGBTQ+ rights, women's rights to bodily autonomy, and healthcare. Each of these issues could potentially be decided by her, so, no matter what else, people are protesting her because she will have a lot of power. There were protests when each of those laws was enacted, of course there will be protests when they are threatened with being scrapped.

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  • "Furthermore, there's no way to recall a Judge, even if everyone in the country thinks that they need to be." Yes, there is. They can be impeached and removed by Congress. Only one has ever been impeached, though, and he was not removed. And that was in 1804. Otherwise, good answer, though I would add that the judicial branch's job encompasses both seeing that the law is enforced as written in addition to what you mentioned about ensuring laws don't violate higher laws (e.g. the Constitution.) – reirab 16 hours ago
  • I would note, though, that some of the things you mentioned (e.g. abortion) were never actually passed as laws. There is no federal law granting any right to abortion, for example, but rather only a Supreme Court ruling that such a right is encompassed in the Constitution (which fact further supports your point about how powerful they are.) – reirab 16 hours ago
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The Supreme Court has become largely politicized over the last few decades. When you strip away all the noise, the reason why some people are protesting this nomination boils down to the fact that their side (Democrats) did not get to appoint the next judge and this particular judge's political views do not align with theirs.

Of course, they will not flat out admit this, so a set of cover-up reasons are created instead, mainly:

Republicans' hypocrisy: During Obama's last year in office, Republicans argued that no president should get to put a judge in the Supreme Court during an election year, and used this to justify their blocking of Obama's nominations. Of course, they didn't have to come up with any justifications; they had complete authority to block Obama's nominations due to the simple fact that they controlled the Senate. Now, Republicans have reverted their argument, and have decided to nominate this judge on an election year. Again, they have the authority to do this due to the fact that they still control the senate, but their actions does show a level of hypocrisy.

In the end, it all comes down to politics. Some people don't like this judge's politics and the president nominating her, but "I don't like them" does not make for a good argument, so instead they point out to Republicans' hypocrisy from the past to protest the nomination. That doesn't make for a good legal argument either, since everything Republicans have done they are legally allowed to do, but to some it might make for a good moral argument at least.

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    SCOTUS has also become politicized because Congress doesn't compromise - it is now an majority takes all (especially if the President is from the majority party.) The 60s Dixiecrats turning Republican, the 80s Reaganomics and the Tea Party changes is part of the reason. – Stefan Skoglund 19 hours ago
  • Democrats are angry with themselves for not having done the sensible thing and persuaded RBG to step down while Obama was in office. – mr.zog 13 hours ago

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