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Justice Amy Coney Barrett Hears Her First Supreme Court Argument

Mr. Guarnieri was happy to accept a clear rule and Judge Barrett considered the tender.

“So your first order of preference would be the kind of formalistic line I just described,” she says. “And then your saving argument would be, if the court were not comfortable with the possibility of avoiding the obligations of the FOIA by, for example, the ‘draft’ stamping on the top, that we let’s go with the most type of multifactorial, fact-specific test. “

M. Guarnieri agreed. “It illustrates how we think the case should be resolved,” he said.

Judge Barrett later lobbied Sanjay Narayan, a Sierra Club lawyer, after arguing that the documents should be released if they had “appreciable legal consequences.”

She said she could see how the draft documents could have practical consequences, but said she doubted they could have legal documents.

Prior to the argument in US Fish and Wildlife Service v. Sierra Club, No.19-547, the court issued two unsigned decisions, ruling for a Black Lives Matter activist and a prisoner on abusive terms. Judge Barrett was not involved in the decisions.

In the first, he overturned an appeals court ruling against DeRay Mckesson, a Black Lives Matter activist who helped organize a protest in Baton Rouge, Louisiana in the summer of 2016 after the shooting death of ‘a black man, Alton B. Sterling, by two policemen. The protest began peacefully but turned violent.

An unknown protester threw a stone or something similar at a police officer identified in court documents as John Doe, seriously injuring him. The officer sued Mckesson, arguing that he was indirectly responsible for the assault given his role in organizing the protest.

The United States Court of Appeals for the Fifth Circuit in New Orleans allowed the case to proceed, rejecting Mr. Mckesson’s argument that his role in organizing the protest was protected by the first amendment.

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Topical Quiz: Amy Coney Barrett, Lockdowns, Anonymous

News Quiz: Amy Coney Barrett, Lockdowns, Anonymous Did you catch the headlines this week? Compiled by Will Dudding and Andrea Kannapell

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How Mitch McConnell gave Justice Amy Coney Barrett’s quick confirmation

WASHINGTON – Hours after Judge Ruth Bader Ginsburg died last month, Senator Mitch McConnell was on the phone with President Trump, assuring him Senate Republicans would not hesitate to fill the suddenly vacant post despite the election imminent.

But he offered a word of warning to the president: “It will be the hardest fight of my life,” said McConnell, according to an aide. “We have to play this perfectly.”

There were good reasons to be careful. Mr. McConnell, a Kentucky Republican and majority leader, moved just as quickly in 2016 to prevent President Barack Obama from filling a Supreme Court seat nine months before the election, saying voters should decide who would choose next judge. Now he was proposing to brazenly reverse course and muscle through a candidate who would cement a conservative court majority amid the presidential vote and a pandemic that had reached the Senate.

This approach would set in motion the most partisan Supreme Court confirmation in modern history, a sprint that tore Senate practice apart and circumvented some obscure rules. This sparked outrage from Democrats who called the whole process illegitimate and set a tight schedule that could have been derailed by a number of unexpected events.

But on Monday night, as Senator Chuck Schumer of New York, the Democratic leader, denounced Justice Amy Coney Barrett’s confirmation to the Supreme Court as one of the “darkest days” in Senate history, Mr. McConnell was seated near the Senate. , smiling and laughing to himself knowing he was minutes away from a vote that would fulfill his highest purpose.

For Mr McConnell, Monday was a day of celebration as he achieved what he couldn’t even have imagined four years ago, when he decided to capitalize on Donald J. Trump’s presidency and his formidable power in the Senate to give a deep and lasting conservative imprint. on federal courts. Three Supreme Court justices, 53 appeals court judges and dozens of new young Tories presiding over district courts: all have been delivered under the close supervision and direction of Mr McConnell.

“I certainly didn’t expect to have three Supreme Court justices,” McConnell said in an interview on Tuesday, as he relished an achievement that he said placed him in the top row of the leaders. Senate of History. “At the risk of playing my own horn, look at the majority leaders since LBJ and find another who may have done something as important as this.

His success could come at a great cost to Republicans, perhaps with the loss of their Senate majority next Tuesday and certainly with an even more bitter Senate by the harsh partisanship and tough tactics Mr. McConnell employed to install the judge. Barrett in the field a week before the election. Depending on the results, then there could be a profound restructuring of the Senate and the court itself if Democrats take the White House and the Senate and seek to readjust a judicial system that they say has been unfairly biased towards the right.

Mr McConnell’s steadfast emphasis on installing federal judges rather than seeking a legislative compromise has won him appreciation from a Republican right-wing who has at times mistrusted him, but now credits him with the erection of a judicial firewall against liberal policies if Democrats take control of the government.

This has earned him the contempt of Democrats, who say they have sullied the Senate and the Supreme Court with his tactics.

“The majority leader, more than any other actor, turned what was once the overwhelming bipartisan confirmation of a qualified candidate – and bipartisan ratification of judicial independence – into an all-partisan exercise that destroyed the constitutional responsibility of the Senate to advise and consent and now risks destroying the credibility of the Supreme Court and lower courts as well, ”said Senator Michael Bennet, Democrat of Colorado.

Mr McConnell said it was the Democrats who made the process fail. He regularly recites a practical story that traces democratic guilt for judicial wars to the rejection of Judge Robert Bork by the Senate in 1987. Perhaps more importantly, Mr. McConnell claims he cares little about what his enemies say so much. ‘he’s on the winning side.

“It is a difficult business that we are all engaged in and we expect to be criticized,” he said. “The more impact we have, the stronger the voices of the opposition. It goes with the grass.

The overhaul of the courts by Mr McConnell was the result of a strategic plan developed by a man who became obsessed with the role of the Senate in staffing the federal judiciary in his early days as a staff assistant under the Nixon administration. While he could not predict that his blockade of Mr. Obama’s 2016 candidate, Judge Merrick B. Garland, would pay political dividends, the vacant post was credited with the Conservative support needed to elect Mr. Trump in 2016.

As Mr. Trump made his way to the White House, Mr. McConnell immediately began planning with Donald F. McGahn II, the new White House lawyer, to set up a confirmation assembly line to occupy the dozens of Lower Federal Court seats which Mr. McConnell had. vacant during the last two years of the Obama presidency. Republicans have changed long-standing Senate practices to speed up their work by denying Democrats the procedural tools to block candidates.

“Obviously the president receives a tremendous amount of credit because he makes the appointments, but the value Senator McConnell brought to the project should not be underestimated,” said McGahn, who now works in the industry. private. “It is clear without him, the success of the president would not have happened.”

The judicial juggernaut appeared to peak in June, when the Senate filled the final opening of a federal circuit court, fulfilling Mr. McConnell’s goal of “leaving no vacancies behind.” But he had no intention of being caught off guard if the opportunity presented itself for the ultimate prize: a seat on the Supreme Court.

Before returning to Kentucky in August for the summer vacation, Mr McConnell met with senior advisers to plan for the possibility of a Supreme Court opening, aides said. They had no inside knowledge of Judge Ginsburg’s declining health, but Mr McConnell wanted to be ready since his colleagues would be scattered. He quickly decided that any statement should include an explicit guarantee of a vote to fill a vacant post before the end of the year.

Given what transpired with Judge Garland in 2016, such a pledge was sure to spark Democratic outrage and provoke cries of hypocrisy. But Mr McConnell called on his colleagues to urge them to reserve judgment on what should be done in the event of a vacancy.

Then, at around 7:25 p.m. on September 18, Andrew Ferguson, lead counsel for Mr McConnell and former clerk of the Supreme Court, informed the senator that he had learned from his contacts with the court that Justice Ginsburg had passed away. .

“We have to fill it out,” McConnell said immediately. His point of view was quickly conveyed to Mark Meadows, the White House chief of staff, who was traveling with the president. In less than two hours, Mr McConnell released a statement praising Judge Ginsburg and promising a vote to take his seat, as he had planned.

The next day, Mr McConnell launched a concerted campaign for Judge Barrett, whom he had seen since the spring as the next candidate and now considered the best candidate to get through a fast-track schedule. Despite the White House’s interest in others, such as Judge Barbara Lagoa in Florida and Judge Allison Jones Rushing in North Carolina, Mr McConnell insisted on Judge Barrett, arguing that she was a famous figure. due to its previous confirmation for the United States Court of Appeals. for the Seventh Circuit and that it was very popular in conservative legal circles. Mr McConnell has vowed to have another chance to defend Judge Barrett if the president favors another candidate.

Mr McConnell wanted a pre-election vote because he feared that the wait after the ballot – when it could potentially energize Republican voters – could also make confirmation more precarious if his party lost the Senate or the White House.

“I wanted to make sure we had enough time to adjust the average time between appointment and confirmation, so that we could deal with the argument that we were somehow outside the realm of how these appointments have. been treated in the past, ”he said.

Despite the animosity from Democrats and their allies, Mr McConnell said he did not expect the rushed confirmation to significantly influence the election. And while expressing concern about potential changes from the Democrats in retaliation – such as removing filibuster and adding court seats – he said they were being considered even before Judge Barrett was considered. .

“They no longer need provocation over what they already threatened to do,” said McConnell.

Whatever happened, his mark on the justice system was, he said, “the most important achievement of my career. I am proud of it and I feel good. “