The Fight to Fill RBG’s Seat

Photo: Amy Coney Barrett speaking in the Rose Garden on Sept. 26.

The first presidential debate began with a question about Amy Coney Barrett, President Trump’s nominee to replace Ruth Bader Ginsburg on the Supreme Court. It is the most hotly partisan issue in Washington, and both Democrats and Republicans are using it to raise money for Senate races and cull votes from one of the most coveted demographics in 2020: white women. Pennsylvania is among the five must-win states. In 2016 Trump won Pennsylvania by a half percent, and the near-Philadelphia suburbs may have decided Trump’s win.

In the debate, Vice President Biden asserted — and national polling overwhelmingly agrees — that whoever is elected the next president should fill the seat and that it should remain vacant until then.

The Human Rights Campaign is opposed to Coney Barrett’s appointment. “The last four years have been an assault on the rights and dignity of LGBTQ people across the country, led by Donald Trump, Mike Pence and Mitch McConnell’s prioritization of power over people,” HRC President Alphonso David said in a statement after the announcement.

“While people are suffering across the country, instead of offering aid, Trump and McConnell are rushing through a Supreme Court justice – a justice who could deal a fatal blow to people maintaining their basic health care in the middle of a pandemic. The President has dramatically altered the judiciary to try to dismantle hard-fought rights and progress secured over decades – LGBTQ rights, voting rights, reproductive rights and more.”

Trump has filled more than 200 lifetime positions on the federal courts, including two Supreme Court seats.

Biden referenced the Senate’s refusal to fill the seat left open in February 2016 by the sudden death of Antonin Scalia.

Coney Barrett herself argued in 2016 that then-President Barack Obama’s choice to fill the seat, moderate Merrick Garland, would have altered the “balance” of the court between conservative and liberal justices. Yet her appointment would do just that, shifting the court from a 5-4 conservative majority to an insurmountable 6-3 majority.

As Scalia was the most conservative member of the court then, Ginsburg was the most liberal justice now. Coney Barrett would in fact be the most conservative justice appointed, as well as the youngest — a full 40 years younger than Ginsburg was at her death. If she remained on the court to the same age, Barrett would still be representing Trump in 2060.

Biden argued that Trump wants to overturn Roe v. Wade and the Affordable Care Act (ACA) and that was why he had appointed Coney Barrett.

In one of many counterfactual statements, Trump insisted no one knew how Coney Barrett would vote on either issue. Trump added that abortion is not even on the docket in the term that begins the first Monday in October. But the ACA is, and it will be debated in oral arguments in mid-November in the case California v. Texas. With Coney Barrett on the court, Biden argued, more than 100 million Americans would lose their healthcare protections for pre-existing conditions and women would return to their pre-ACA status of paying more for insurance than men do.

Coney Barrett is a professor of constitutional law at Notre Dame University in Indiana, Vice President Mike Pence’s home state. Barrett also received her law degree from Notre Dame, where she graduated first in her class and summa cum laude in 1997. She was in a law firm briefly, but also clerked for Scalia, whose views on originalism she shares. Scalia was stridently opposed to LGBTQ rights and wrote dissenting opinions in every case won by LGBTQ people since 2003 and Lawrence v. Texas.

In 2017, Coney Barrett was appointed to sit on the United States Court of Appeals for the Seventh Circuit by Trump. On Sept. 29, she told the media that Trump offered her the Supreme Court seat three days after Justice Ginsburg’s death.

Trump announced the nomination in a Rose Garden ceremony on Sept. 26. Coney Barrett appeared with her seven children, two of whom are adopted from Haiti, a country Trump has repeatedly referred to as a “sh*thole.” Her youngest child has Down Syndrome. So Coney Barrett’s own children would be impacted by her vote on the ACA — as would millions of LGBTQ people.

According to the Centers for Disease Control and Prevention (CDC), LGBTQ people are more likely to suffer from pre-existing conditions than their cis-het peers and are disproportionately impacted by healthcare disparities. There are higher rates of people on the autism spectrum and of people with depression. Additionally, a significant number of gay men, bisexuals and trans women are HIV+.

In a series PGN did on elderly LGBTQ people in 2019, data showed they were more likely to suffer from co-morbidities due in part to homophobic and transphobic healthcare throughout their lives. And lesbian and bisexual women have higher risks of breast and gynecological cancers than their straight peers.

All of this data makes the Coney Barrett choice deeply concerning for LGBTQ people with regard to her possible vote on the ACA, which she has previously criticized.

Another major LGBTQ case, Fulton v. City of Philadelphia, will be heard the day after Election Day and is another reason Trump wants Coney Barrett confirmed before the election. The case considers whether governments must allow taxpayer-funded organizations to discriminate against LGBTQ people when providing critical services. A vote against LGBTQ people in Fulton could have staggering consequences for American social safety net programs for many vulnerable groups.

In Coney Barrett’s long-held opposition to reproductive rights and Roe v. Wade, she has called Roe “an erroneous decision.” Coney Barrett has also demonstrated bias against LGBTQ rights in her words, texts and recent rulings. She defended the Supreme Court’s dissenters in Obergefell v. Hodges, the landmark 2015 ruling that granted marriage equality. Coney Barrett said that the court had no business deciding the case, that it belonged in the hands of voters.

Coney Barrett’s originalism stance is highlighted in her transphobic responses to other cases. She has said that Title IX protections under the 1964 Civil Rights Act do not extend to trans people, asserting it is “a strain on the text” to reach that interpretation.

Equally concerning is her misgendering of trans people, including referring to trans women as “physiological males,” while also questioning how there can even be a case for transgender rights. She also refused to rehear a racial segregation case, raising significant concerns about her approach to Civil Rights law.

Of President Trump’s choice, Human Rights Campaign’s David said, “If she is nominated and confirmed, Coney Barrett would work to dismantle all that Ruth Bader Ginsburg fought for during her extraordinary career. An appointment of this magnitude must be made by the president inaugurated in January. The Human Rights Campaign fervently opposes Coney Barrett’s nomination and this sham process.”