Supreme Court nominee Amy Coney Barrett has been accused of “unconscionable cruelty” by a watchdog group over her role in an appellate court decision overturning a district court which found a Wisconsin county liable for millions in damages to a woman who alleged she had been repeatedly raped by a jail guard.
“After a 19-year old pregnant prison inmate was repeatedly raped by a prison guard, Amy Coney Barrett ruled that the county responsible for the prison could not be held liable because the sexual assaults fell outside of the guard’s official duties. Her judgment demonstrates a level of unconscionable cruelty that has no place on the high court,” Kyle Herrig, president of the progressive watchdog group Accountable.US, told Salon. “The only thing more concerning than the rush to confirm by Senate Republicans is what we are learning about Amy Coney Barrett’s extremist record. It is hardly surprising that she has dodged question after question during her testimony.”
Barrett was one of the three judges on a Seventh Circuit Court of Appeals panel which reversed a $6.7 million verdict against Milwaukee County in 2018 after a corrections officer was charged with repeatedly raping a pregnant 19-year-old inmate.
Former corrections officer Xavier Thicken was charged with multiple counts of sexual assault in 2013 after the woman alleged that he had raped her during and after her pregnancy at a jail run by the controversial former Sheriff David Clarke. Those charges were dropped when he agreed to plead guilty to felony misconduct in public office in 2014.
The woman later filed a lawsuit against Milwaukee County. In her testimony, she alleged that Thicklen had raped her in different parts of the jail when she was eight months pregnant and demanded that she perform oral sex on him after giving birth.
A jury awarded the woman $6.7 million in 2017, which was upheld by District Judge J.P. Stadmueller before the Seventh Circuit Court overturned the ruling in September 2018.
Barrett joined Judges Daniel Manion and Robert Gettleman in reversing the district court ruling against the county, though it upheld the judgement against Thicklen. Mannion wrote in the unanimous opinion that the county was not responsible for the guard’s conduct.
“Conduct is not in the scope if it is different in kind from that authorized, far beyond the authorized time or space, or too little actuated by a purpose to serve the employer,” he said.
“Even when viewing the evidence in the light most favorable to (the woman) and the verdict, we hold no reasonable jury could find the sexual assaults were in the scope of his (Thicklen’s) employment,” the opinion stated. “The evidence negates the verdict.”
During her Supreme Court confirmation hearing, Amy Coney Barrett depicted herself as an impartial legal arbiter whose personal views have no bearing on her court rulings. She made this argument most explicitly when she insisted: “I don’t think that my views on global warming or climate change are relevant to the job I would do as a judge.”
This facile line may seem convincing — Vox’s climate writer David Roberts echoed it, asserting that “ACB’s views on climate change really don’t matter” because what only really matters is her views of regulatory agencies’ legal authority.
That’s one helluva “well, actually” argument, but actually no: A past case tells a much different story. It illustrates exactly how justices’ personal views of climate science can determine what facts they accept — and do not accept — when they interpret the law.
Sure, Barrett spent the hearings touting her alleged objectivity, but her own answers about science illustrated deep and disqualifying bias.
What Happens When Another Massachusetts v. EPA Arrives at the High Court?
To understand how judges’ views about science can shape their rulings, consider the precedent-setting 2007 ruling Massachusetts v. EPA.
In that case, environmental groups backed by the state of Massachusetts asked the Environmental Protection Agency (EPA) to regulate automobiles’ greenhouse gases. George W. Bush’s EPA countered that it lacked authority “to regulate new vehicle emissions because carbon dioxide is not an ‘air pollutant,’” and it asserted that plaintiffs had no standing to even bring such climate cases in the first place.
The court’s ruling for Massachusetts was anchored in its acceptance of science. The majority ruled that yes, climate change has “resulted from a significant increase in the atmospheric concentration of greenhouse gases.” The majority then declared that the state has standing in court because “EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts.”
This angered Supreme Court chief justice John Roberts, who had advocated limiting environmental groups’ access to the courts since the 1980s. In the Massachusetts v. EPA case, he issued his own dissenting opinion that employed climate denial to try to argue that Massachusetts had no standing.
On day two of her confirmation hearings, Supreme Court nominee Amy Coney Barrettheld up a blank notepad for the senators to see the notes she was working from. At the beginning of the hearing, many saw the blank piece of paper as a powerful symbol of how smart and prepared Judge Barrett was, their perfect nominee who didn’t need any prepared material to survive the grilling she was sure to encounter by hostile Democrats.
However, by the end of the four days of hearings, the blank notepad was a perfect symbol of something else — just how empty and vacuous the hearing was, and how little Judge Barrett was willing to say about virtually anything relevant to the job of being a Supreme Court justice. In short, the notepad had nothing on it because Judge Barrett said nothing.
Consider her nothingburger of a performance from the perspective of the ultimate purpose of what was happening in the Senate Judiciary Committee this week. In essence, Judge Barrett was interviewing for a lifetime job as one of the most powerful judges on the planet, a job that, because she is only 48, she could hold for four decades. Senators, the people who get the final say in hiring her, spent their time asking her all sorts of questions related to how she would perform that job. And what did she say in response? Zilch.
Just imagine any other job interview. Interviewing to be a cashier at a grocery store? Imagine answering a question about how you would deal with two angry customers who both claim that they got to the front of the line at the same time with this actual quote from Judge Barrett — “I can’t characterize the facts in a hypothetical situation, and I can’t [say what I’d do] to a hypothetical set of facts.” Or maybe you’re interviewing for a sales position, and your potential employer wants to know your thoughts on two different approaches to closing a deal. Imagine answering by saying that you can’t express an opinion on that because to do so would be to prejudge the matter.
No one would get a job if they didn’t tell the people interviewing them their thoughts on how they were going to actually perform in that role…except a U.S. Supreme Court justice. Anyone who has watched a recent confirmation hearing knows that expecting anything much of substance from the nominee is foolish. Faced with questions about some of the most pressing legal issues of the day, issues they will surely face in their role as Justice, nominees regularly dodge and weave, saying anything they can to avoid answering the question.
Recall that at the end of the George W. Bush administration, as the Iraq war wore on and the economy faltered, the president’s approval rating dropped to the high 20s. It was quite a comedown for a president who had once ridden high at 90% in the wake of 9/11 and was heralded as the reincarnation of Winston Churchill by many in the news media. Today he is something of a GOP cipher and his father, a one-termer, even more so.
Ronald Reagan, of course, was a revered conservative figure for many years, but that was mostly the result of a group of so-called “Reagan Revolutionaries” led by anti-tax advocate Grover Norquist who were disturbed by Reagan’s low ratings after his term was up and made a concerted effort to turn it around with initiatives such as the “Reagan Legacy Project” which set out to put a Ronald Reagan memorial in every county in the United States.
But for the most part, the reason Republicans are quick to abandon their presidents is because they most often leave office in ignominy and failure. Think about it: Hoover, Nixon, Ford, Bush and Bush. Really, in the last century all they have as political heroes are Eisenhower and Reagan, and the latter took a full-blown campaign to turn him into an icon. And needless to say, despite his belief that he belongs on Mt. Rushmore, I think we know which group President Trump will be joining. In fact, he is in a class all of his own.
Nonetheless, while a president is in office, Republicans are almost always in lockstep. The level of fealty GOP officials have given to Trump goes beyond even the usual conservative team loyalty, however. There’s been a lot of ink spilled trying to analyze why that is with most observers concluding that elected Republicans are afraid of their own voters who have a cult-like devotion to Trump. And there’s truth to that. Trump’s hold on his base is very strong.
So, while it’s not surprising to see some Republicans start to break from Trump as his re-election chances appear iffy at best, it’s more difficult than usual. There are always a few races in which the candidate will need to assert their “independence” in order to win and the party generally gives them the go-ahead to do what they need to do. But Trump supporters see the slightest criticism as an act of betrayal.
Watching some of the more desperate among them like Arizona Senator Martha McSally try to walk that fine line is almost painful to watch.
[id: A tweet by Mike (@/MichaelKaliman) that reads:
*worker quits* Workers: are you gonna replace them, that position was important Company: lol no Workers: is anyone gonna get a raise for picking up their work Company: no *more workers quit* Company: damn, everyone’s leaving. That’s nuts
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