The White House: President Trump Announces Nominee for Associate Justice of the Supreme Court of the United States
Republicans rush to confirm Supreme Court nominee ahead of election
Amy Coney Barrett, Trump’s pick, lacks record in Indian law
Monday, September 28, 2020
Indianz.Com

Republicans are rushing to confirm a federal judge with virtually no experience in Indian law to the U.S. Supreme Court in order to give Donald Trump and their party a win ahead of the hotly contested election.

With polls showing Trump trailing Democrat Joe Biden in several key states, the GOP is treating the nomination of Amy Coney Barrett like a second campaign. The president and his allies have less than 40 days to install her to the nation’s highest court following the death of Justice Ruth Bader Ginsburg.

“This should be a straightforward and prompt confirmation,” Trump said at the White House on Saturday. “It should be very easy.”

“Good luck,” Trump added, drawing laughter from the crowd in the Rose Garden.

But with several Republicans confronting their own tough re-election campaigns, filling the vacancy on the Supreme Court is no laughing matter. Key members of the U.S. Senate, including those from states with significant Indian Country populations, have already said they intend to vote in favor of Barrett, who has only served on the federal bench for three years.

“Judge Barrett is a conservative, well qualified judge, who has faithfully honored and defended the Constitution,” said Sen. Steve Daines (R-Montana), a vulnerable member of the Senate Committee on Indian Affairs whose polls show him locked in a tight race with Democrat Steve Bullock, who has worked closely with tribes during his seven years as governor of Montana.

“Judge Barrett will defend our Montana way of life from those that want to take away our 2nd Amendment rights and destroy our jobs,” Daines said on Saturday, highlighting issues of importance to potential voters in a state where 6.7 percent of the population is Native American. “Nearly three years ago I voted to confirm Judge Barrett to the Seventh Circuit Court, and I now look forward to casting my vote to confirm Judge Barrett to the United States Supreme Court.”

Sen. Martha McSally (R-Arizona), another vulnerable member of the Committee on Indian Affairs, also said she looked forward to a vote on Barrett. Polls show her trailing Democrat Mark Kelly, an astronaut who has repeatedly courted the Native Americans who make up 5.3 percent of Arizona’s population.

“It is the president’s duty to nominate Supreme Court justices and it is the Senate’s duty to advise and consent based on who will faithfully interpret our nation’s laws and Constitution,” McSally said on Saturday. “After a thorough review of Judge Barrett’s merits, the Senate should vote without delay on her nomination.”

Sen. Lindsey Graham (R-South Carolina) is facing troubles of his own in a surprisingly close matchup against Jaime Harrison, a Democratic party official. He will be under even more scrutiny in the coming weeks as the leader of the Senate committee that will handle Barrett’s confirmation hearing.

“As the chairman of the Senate Judiciary Committee, I’m very committed to ensuring that the nominee gets a challenging, fair, and respectful hearing,” Graham said on Saturday. “We move forward on this nomination knowing that the president has picked a highly qualified individual who will serve our nation well on the highest court in the land.”

Graham said the committee will start the hearing for Barrett on October 12, despite it being a national holiday that some use to celebrate a European colonizer who never set foot in the present-day United States. The process is expected to last three to four days, with Republicans eager to clear the path to a final vote before she can be seated on the high court.

“As I have stated, this nomination will receive a vote on the Senate floor in the weeks ahead, following the work of the Judiciary Committee supervised by Chairman Graham,” said Sen. Mitch McConnell (R-Kentucky), who controls the chamber in his role as the Republican majority leader. He’s also running for re-election, though polls show him with a comfortable lead against Democrat Amy McGrath, a former U.S. Marine Corps fighter pilot.

Barrett has served on the 7th Circuit Court of Appeals since 2017. She was confirmed to the post in October of that year with almost no support from Democrats in the Senate.

The 7th Circuit handles cases affecting dozens of tribes in three Midwest states. Just last month, a panel of three judges affirmed the reservation boundaries of the Oneida Nation in Wisconsin, a ruling based on the historic U.S. Supreme Court decision in McGirt, which itself was one of the most closely-watched Indian law disputes in recent history.

But Barrett written any decisions in any Indian law cases during her three years on the 7th Circuit so she doesn’t have much of a record to review when it comes to tribes and their issues. As a professor and scholar, she has written extensively about legal issues, though none about Indian Country, based on a review of materials supplied to the Senate in 2017 and her University of Notre Dame Law School resume.

The law school is located in South Bend, Indiana, within the homelands of the Pokagon Band of Potawatomi Indians. The tribe in 2014 honored the dean at the time, Nell Jessup Newton, a nationally recognized scholar of Indian law. Barrett was a professor at Notre Dame, where she received her law degree, between 2010 and 2017.

Previously, Barrett worked as an attorney in private practice in Washington, D.C., area, but didn’t cite any Indian law matters on her 2017 Senate questionnaire. One of her most significant cases was Bush v. Gore, which resulted in Republican George W. Bush, her law firm’s client, defeating Democrat Al Gore in the 2000 presidential election. Barrett told the Judiciary Committee she worked on the litigation while it was in the Florida state court system, not when it made it to the Supreme Court, where it finally resolved after weeks of uncertainty that gripped the nation.

But while Barrett might not have worked on the pivotal portion of the election dispute, she boasted a strong connection to the Supreme Court. She had just served as clerk to then-Justice Antonin Scalia, from 1998 to 1999.

“I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate,” Barrett said at the White House on Saturday. “His judicial philosophy is mine too: A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”

Scalia was one of the most conservative justices of the court and he almost always ruled against Indian Country’s interests. In the 1998-1999 term during which Barrett clerked, he joined the majority in ruling against the Southern Ute Tribe in a case involving ownership of natural resources in Amoco Production Company v. Southern Ute Indian Tribe and, in El Paso Natural Gas Company v. Neztsosie, against citizens of the Navajo Nation who tried to hold corporations responsible, in the tribal court system, for the harmful impacts of uranium mining on the largest reservation in the United States.

During the same term, Scalia also went against the Mille Lacs Band of Ojibwe Indians in a treaty fishing rights dispute. But he was in the minority in Minnesota v. Mille Lacs Band of Chippewa Indians, which narrowly resulted in a victory for the tribe by a 5-4 vote, decided largely along ideological lines.

Incidentally, the sole dissenting vote in favor of the Southern Ute Tribe’s ownership over coalbed methane gas was cast by the late Justice Ginsburg, who passed away on September 18 at the age of 87. Her death created the vacancy that Barrett is poised to fill with the help of Republicans in the Senate.

“Senate Republicans say they can fill this Supreme Court seat in weeks, after telling struggling New Mexicans and Americans for months that there was ‘no urgency’ to pass COVID-19 relief,” said Sen. Tom Udall (D-New Mexico), the vice chairman of the Senate Committee on Indian Affairs. “Their refusal to honor their own precedent and the will of the American people is unconscionable and a stain on the Senate.”

“With so much on the line, the American people deserve to have a say in who replaces Justice Ginsburg,” said Udall, expressing the Democratic view that the nomination should be delayed until the results of the November presidential election are known.

ruthbaderginsburg
Flowers, signs and other tributes for Ruth Bader Ginsburg are seen outside of the U.S. Supreme Court on September 19, 2020. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Scalia passed away in February 2016 at the age of 79. Senate Republicans at the time refused to consider his potential replacement — Merrick Garland, who was nominated by then-Democratic president Barack Obama — citing the need for Americans to decide the election later that year.

“Members of the United States Senate, I look forward to working with you during the confirmation process, and I will do my very best to demonstrate that I am worthy of your support,” Barrett said at the White House.

The Supreme Court starts its October 2020 term on October 5. No Indian law cases have been granted at this point, though petitions for several are pending before the eight remaining justices. Almost all of the pending petitions are set to be considered during a closed-door conference on Tuesday, with potential orders being released with the start of the new term.

Of the eight remaining justices, five are considered conservative leaning: John G. Roberts, Jr., who serves as chief justice; Clarence Thomas, Samuel A. Alito, Jr., Neil Gorsuch and Brett Kavanaugh. Thomas and Alito, who were nominated by Republican presidents, typically go against tribal interests in Indian law cases, much like Scalia did during his time on the court.

Gorsuch, whose record in Indian law is unprecedented in Supreme Court history, and Kavanaugh were both nominated by Donald Trump. Should Barrett be confirmed, it would give the court an even stronger conservative tilt.

Three justices are considered more liberal: Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Sotomayor and Kagan, who were nominated by Barack Obama, tend to side with tribal interests in Indian law cases.

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