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In January 2006, I testified before the Senate Judiciary Committee against the Supreme Court confirmation of Samuel A. Alito Jr. At a break in the proceedings, then-Sen. Joe Biden came up to me and said, “You know this is all an exercise in Kabuki theater. Everyone in this room knows that Sam Alito is going to be a very conservative justice. The Republicans are pretending that he has no ideology. The Democrats are trying to ask questions to trip him up or pin him down and he is too smart for that.”
Biden was correct: Alito was confirmed and has been a staunch conservative on the court.
Soon, the Judiciary Committee will embark on a new bit of theater: the confirmation hearings for Trump’s latest Supreme Court pick, Amy Coney Barrett. Once again, the outcome is a preordained conclusion. Senate Republicans already have announced that they are going to confirm her and there is no doubt that she is going to be an extremely conservative justice.
Since the hearings for Barrett don’t have even a semblance of open inquiry, should the Democrats even participate in this charade? I’m sure they are tempted to boycott the hearings as a way of protesting the stunning hypocrisy of the Republicans’ rush to confirm Barrett when just four years ago they blocked the confirmation of Judge Merrick Garland on the pretext that a president should not be able to pick a Supreme Court justice in an election year.
Refusing to participate might convey that message, but it also could make them seem petulant and failing at their duties. Instead, Senate Democrats should view the hearings as an important opportunity to demonstrate how Republicans are packing the court with justices on the far right-wing fringe.
The Democrats need to approach the hearings strategically. It is a mistake to think that anything they say or ask has the slightest chance of blocking Barrett’s confirmation. It also is a mistake to think that Barrett is going to say anything meaningful. She is sure to repeat the platitudes all nominees fall back on, saying she is open-minded, will respect precedent and cannot discuss any issue that might come before the court.
What message then should Democrats seek to convey with their statements and questions? They should constantly remind everyone that this is an unprecedented power play by the Republicans. Just four years ago, Senate Majority Leader Mitch McConnell (R-Ky.) said, “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.” Many other Republicans, including ones on the Senate Judiciary Committee, said the same thing. Their words should be quoted often.
Democrats should also, through their questions, show that Barrett is going to be an extremely conservative justice and explain what that is going to mean for people’s lives in this country, particularly on issues of healthcare.
After the Supreme Court upheld the Patient Protection and Affordable Care Act in 2012, Barrett was sharply critical of the decision and said, "Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute." The issue of the constitutionality of the Affordable Care Act is back before the court in November and it is quite possible that Barrett could join with Justices Clarence Thomas, Alito, Neil Gorsuch and Brett M. Kavanaugh to strike it down. About 21 million people would be at risk of losing their health insurance in the midst of a pandemic.
Barrett is a self-professed originalist, like the justice she clerked for, Antonin Scalia. This is the view that a constitutional provision means the same thing today as when it was adopted. Democrats need to point out that originalists long have argued that Roe vs. Wade was wrongly decided and that Barrett almost certainly will be the fifth vote to overrule that landmark decision. Originalists reject any protection of gay and lesbian rights under the Constitution and Barrett, before becoming a judge, expressed opposition to same-sex marriage. Based on her writings, she is sure to vote to allow businesses and employers, based on a claim of religious freedom, to discriminate against gays and lesbians.
Barrett, of course, will refuse to answer questions about these subjects. But that should not matter: Democrats must politely, but firmly, explain to the American people that President Trump has appointed someone who is going to take away their rights.
Amy Coney Barrett is as conservative as any federal judge in the United States. Trump picked her to please his political base. The Democrats, sadly, have no way to stop her confirmation, but they should use the process to leave no doubt in anyone’s mind what this is going to mean for the Constitution, the country and for people’s lives.
Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion.
Donald Trump and Joe Biden | Texas Photo illustration by Salon/Getty Images
More polls on the 2020 presidential race have come in for Texas — and once again, former Vice President Joe Biden is within striking distance of President Donald Trump, who is ahead by only 3% in a New York Times/Siena poll and by 5% in a Quinnipiac poll. Texas is still in play for Biden, but even if Trump ultimately wins the Lone Star State, these polls are an ominous sign for the GOP and underscore the inroads Democrats are making in a state that Republicans can no longer take for granted.
Texas' U.S. Senate race is another ominous sign for the GOP. Incumbent Sen. John Cornyn is ahead of Democratic challenger M.J. Hegar, but only by single digits. According to polls released in September, Cornyn is winning the race by 6% (New York Times/Siena and Morning Consult), 2% (the Tyson Group), 5% (YouGov), 4% (Public Policy Polling) or 8% (Quinnipiac). If these polls are accurate, Cornyn will probably be reelected on November 3. But the very fact that Hegar is doing as well as she is in Texas is bad news for the Republican Party and demonstrates that Republicans are having to work harder in a state where they could usually count on double-digit victories back in the 1990s and 2000s.
Some pundits continue to describe Texas a "deep red state," but at this point, a more accurate description would be "light red." While Republicans still have an advantage in statewide races in Texas, that advantage is smaller than it was 20 or 30 years ago.
It isn't hard to understand why so many Democratic strategists have been pessimistic about Texas. The last Democratic nominee to win Texas in a presidential race was Jimmy Carter in 1976, and during the 1980s, 1990s and 2000s, Texas was a state in which Democrats performed well at the local level but struggled badly in statewide races. Democratic strategists viewed Texas as state where Democrats were mayors or city council members and performed well in some congressional districts but struggled when it came to gubernatorial and U.S. Senate races. Democratic Texas Gov. Ann Richards was voted out of office in 1994, and the state has only had Republican governors since then.
But in 2018, Democrat Beto O'Rourke performed shockingly well when he challenged incumbent Texas Sen. Ted Cruz in a U.S. Senate race. O'Rourke lost to Cruz, but only by 2% — which was a major departure from all the double-digit victories that Texas Republicans enjoyed in statewide races in the 1990s and 2000s. After Cruz was reelected, GOP strategists were hoping that O'Rourke's campaign was a fluke. But in 2020, the single-digit leads that Trump and Cornyn are having in Texas show that it was not. The GOP's advantage in Texas hasn't disappeared by any means, but it is shrinking.
One warning sign for Republicans in Texas came in 2016, when Trump defeated Democratic presidential nominee Hillary Clinton by 9% — compared to 2012, when Republican Mitt Romney defeated President Barack Obama by 16% in Texas. In 2012, Obama lost to Republican Sen. John McCain by 12% in Texas.
There are plenty of deep red states where Trump is almost certain to win, including Utah, Idaho, Wyoming, Alabama, West Virginia and Nebraska — and he can carry those states without a great deal of effort. But in 2020, Trump is having to work extra hard to avoid a Biden victory in Texas. Similarly, Cornyn — in light of O'Rourke's performance in 2018 — is taking nothing for granted in his battle against Hegar.
Demographics are not advantageous for Republicans in Texas, a state that is only 41% non-Hispanic white, according to the U.S. Census Bureau. Texas is a state where a non-white minority dominates the electorate, but if Democrats can increase turnout among Latino and African-American voters in the Lone Star State, it could be a major headache for the GOP.
Moreover, Texas' major urban centers lean Democrat, including Houston, Austin, San Antonio, El Paso and Dallas. But a heavy turnout among the GOP base in rural counties has given Republicans an advantage in Texas.
Texas has the most electoral votes of any red state: 38, to be exact. It has been a major cushion for GOP candidates in presidential races, but Republicans are having to work harder and harder to hold onto that cushion. And the harder Republicans have to work in statewide races in Texas, the worse it will be for the GOP in the long run.
Days after learning that no Louisville police officers would be charged with homicide in the death of Breonna Taylor, lawyers for the woman’s family called on Kentucky’s attorney general to release the transcripts of the grand jury proceedings.
“Breonna Taylor’s entire family is heartbroken, devastated, outraged and confused as to what Kentucky Attorney General Daniel Cameron presented to the grand jury,” civil rights attorney Benjamin Crump said at a Friday morning news conference in Louisville. “Did he present any evidence on Breonna Taylor’s behalf? Or did he make a unilateral decision to put his thumb on the scales of justice to try to exonerate and justify the killing of Breonna Taylor by these police officers?”
Transcripts of grand jury proceedings are typically kept private, but Crump believes they may help shed light on Cameron’s decision to forgo homicide charges.
This week a grand jury in Jefferson County, Ky., indicted former Louisville police detective Brett Hankison on charges of wanton endangerment for firing his handgun into nearby apartments on the night of the shooting in March. The other two officers involved in the case, Sgt. Jonathan Mattingly and detective Myles Cosgrove, were not charged for their role in Taylor’s death.
The indictment drew outrage from those who had expected homicide charges to be brought against the officers.
“They murdered Breonna Taylor,” activist Tamika Mallory said Friday, “and until those officers are fired from this department, I promise you, I promise you, we will continue to make these streets hot.”
Interim Louisville Metro Police Chief Robert Schroeder terminated Hankison on June 19, alleging he “blindly” fired 10 rounds into Taylor’s apartment. The other two officers were placed on administrative leave.
Cameron, who on Wednesday announced the indictment filed against Hankison, declined to provide details about the grand jury proceeding, telling reporters that the proceedings are done in secret.
A spokeswoman for Cameron’s office told Yahoo News on Friday the attorney general understands that the outcome of the grand jury proceedings was not what Taylor’s family had hoped for.
“Regarding today’s statements at the press conference,” the statement said, “everyone is entitled to their opinion, but prosecutors and Grand Jury members are bound by the facts and by the law. Attorney General Cameron is committed to doing everything he can to ensure the integrity of the prosecution before him and continue fulfilling his ethical obligations both as a prosecutor and as a partner in the ongoing federal investigation.”
Taylor, 26, died after police tried to enter her residence on March 13 while she and her boyfriend, Kenneth Walker, were sleeping. Louisville officials said officers executed a no-knock warrant at the home, but claimed that they knocked anyway and announced themselves before breaking down the door, according to a statement from the city.
Walker said he heard a pounding at the door but didn’t hear police announce themselves, the city said. He fired and hit Mattingly in the thigh, according to Cameron. The officers all returned fire.
“Evidence shows that officers both knocked and announced their presence,” Cameron said Wednesday, adding that after Walker fired his gun, police responded with 22 shots of their own. A ballistic analysis, Cameron said Wednesday, determined that a shot by Cosgrove killed Taylor.
Hankison fired his weapon 10 times, Cameron said, sending bullets into apartments adjacent to Taylor’s. At the time of the incident, three residents in those apartments were home.
“There is no conclusive evidence that any bullets fired from Hankison’s weapon struck Miss Taylor,” Cameron said.
The warrant that brought the officers to Taylor’s apartment was part of an investigation into a drug trafficking suspect, who is Taylor’s former boyfriend, the Associated Press reported.
Cameron said that while there are six possible homicide charges under Kentucky law, those charges are not applicable in this case because Mattingly and Cosgrove were “justified in their return of deadly fire after having been fired upon by Kenneth Walker.”
Hankison was charged with wanton endangerment for allegedly endangering the individuals in one of the apartments he shot into. The offense in the first degree is a Class D felony, and applies to those who have shown extreme indifference to the value of human life. It carries up to five years in prison for each count.
On Friday, Taylor’s lawyers questioned the justification that police fired in self-defense.
“I know the law of self-defense in Kentucky,” attorney Lonita Baker said. “And I know that you don't have the right to use the defense of self-defense when you injure or kill an innocent third party. And what we know from Sergeant Mattingly’s testimony to the [Louisville Metro Police Department’s] Public Integrity Unit is that he saw that Breonna Taylor was unarmed.”
The indictment on Wednesday prompted demonstrations in Louisville and other cities across the nation. Since Taylor’s death, protesters, activists, athletes and celebrities worldwide have called for the officers involved to be charged criminally.
“There seems to be two justice systems in America: one for Black America and one for white America,” Crump said Friday.
Amid the unrest in Louisville, more than 20 protesters were arrested on Thursday night, including Kentucky state Rep. Attica Scott and her daughter. Scott wrote a bill called “Breonna’s Law,” the Courier-Journal reported, which would prohibit no-knock warrants, similar to a local policy with the same title that was signed by Louisville Mayor Greg Fischer in June.
At Friday’s press conference, Scott indicated that the charges against them were baseless.
“Those are some ridiculous charges that were levied against us,” Scott told the crowd. “I also want the rest of y’all to know that we were detained at 8:58 [p.m.].” A curfew is in effect in Louisville from 9 p.m. to 6:30 a.m., until Monday morning.
At a separate press conference on Friday, Schroeder said approximately 26 individuals were arrested at the protests on various charges, including unlawful assembly and first-degree rioting. Multiple burglaries and property damage were also reported.
“The destruction we saw last night simply cannot continue,” he said.
Thumbnail credit: Darron Cummings/AP
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