This RBG legal strategy could expose Amy Coney Barrett's risk to the Constitution

[Nevilledog]

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Tweet text: Barb McQuade
@BarbMcQuade
Senators should use #RBG’s jiujitsu strategy in questioning #AmyConeyBarrett. My thoughts in my new regular column for ⁦@MSNBC⁩.

This RBG legal strategy could expose Amy Coney Barrett's risk to the Constitution
Rather than simply memorialize the late jurist, Senate Democrats should follow Ruth Bader Ginsburg's legal playbook.
msnbc.com

https://www.msnbc.com/opinion/defeat-amy-coney-barrett-s-supreme-court-nomination-democrats-can-n1243242

Justice Ruth Bader Ginsburg's name has been invoked throughout the first two days of Judge Amy Coney Barrett's Supreme Court confirmation hearings. But rather than simply memorialize the late jurist, Senate Democrats would be wise to follow Ginsburg's legal playbook.

As a lawyer in the 1970s, Ginsburg led the ACLU's Women's Rights Project. She brought a number of cases as part of a mission to improve gender equality, and she used a sort of legal jiujitsu to achieve success. Her legal strategy was to select cases in which the plaintiffs were male, and her cases challenged laws that denied benefits to men with wives in the military, that rejected Social Security benefits to surviving widowers and that prevented boys from buying alcohol that could be sold to girls of the same age. By demonstrating the unfairness of laws that discriminated against men, Ginsburg was able to persuade the all-male Supreme Court that equal protection under the law extended to gender. Senate Democrats should employ a similar strategy by using Barrett's views about the death penalty to expose her lack of fidelity to the rule of law.

Barrett threatens to push the court hard to the right on issues such as health care, gun control and abortion. Giving the court a 6-3 conservative majority, Barrett poses a genuine threat to overturning Roe v. Wade, the landmark 1973 case that recognized a woman's right to an abortion without excessive government restrictions. This isn't conjecture: Barrett has in the past expressed strong views opposing abortion. As a professor at Notre Dame Law School, she was a member of an anti-abortion group called Faculty for Life. She signed public letters opposing "abortion on demand" and to protect "the unborn." As a judge on the 7th U.S. Circuit Court of Appeals since 2017, Barrett has ruled in two cases on reproductive rights, and she has written in favor of laws restricting abortions each time.

Barrett has also expressed strong views about stare decisis, the principle that provides that courts should follow case precedent. Barrett has written that stare decisis is a "soft rule," not an "inexorable command." She explained in a 2013 Notre Dame journal article: "I tend to agree with those who say that a justice's duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution than a precedent that she thinks clearly in conflict with it." At age 48, Barrett could serve on the court for 40 years, and she will have plenty of time to "enforce her best understanding of the Constitution" — regardless of whether it conflicts with precedent.

*snip*

[FBaggins]

1. The first paragraphs don't do a good job of explaining this strategy

In summary - the author draws attention to Ginsburg's use of (for instance) male clients to challenge sexual-discrimination policies... flipping the narrative on its head in order to garner support from people who might otherwise oppose her position.

The specific strategy here would be to go after Barrett's presumed opposition to the death penalty - so that some republicans can be convinced to vote against her. That having to recuse herself on DP cases means that they should dump her nomination in favor of someone who can perform the whole job.

The problem with this is that it badly misunderstands her writings on the subject and how it would impact her SCOTUS rulings. Even were she to adopt the position in the paper (that she co-authored), that would just mean that she couldn't assign a penalty of death if she were the sentencing judge. But SCOTUS doesn't sentence people to death.

[crickets]

2. K&R for visibility.