Wednesday, September 23, 2020

What about Amy Coney Barrett?

 The blog obviously has a local interest in the consideration of Barbara Lagoa as a SCOTUS short-lister.  But the other woman on the short list is Amy Coney Barrett, a judge on the 7th Circuit.  Here's what she said about replacing her former boss, Justice Scalia during an election year:

 

 



And here's a Reason article about her criminal justice record:

Appeals court judge Amy Coney Barrett, a leading contender to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, is a popular choice among conservatives. That fact does not, by itself, tell us much about Barrett's treatment of criminal defendants' constitutional and statutory claims.

When it comes to the rights of criminal defendants and the actions of law enforcement agencies, the "conservative" label covers a wide range of attitudes. Although progressives tended to depict Justice Antonin Scalia as an authoritarian ogre, for instance, he sided with defendants in several important Fourth Amendment and Sixth Amendment cases. Neil Gorsuch, the judge President Donald Trump picked to replace Scalia, has shown an even stronger inclination to uphold the rights of the accused and to question the conduct of police officers and prosecutors, repeatedly breaking with fellow conservatives such as Samuel Alito and Clarence Thomas. By contrast, 5th Circuit Judge James Ho, another candidate on Trump's list of potential Supreme Court nominees, showed a troubling deference to law enforcement in a 2019 case involving a man killed by Texas sheriff's deputies.

The opinions Barrett has written in cases brought by criminal defendants and prisoners since joining the U.S. Court of Appeals for the 7th Circuit in 2017 present a mixed picture. While she is often skeptical of the government's arguments when it tries to put or keep people in prison, she has sometimes rejected claims by defendants and prisoners that her colleagues found credible.

It is clear from Barrett's record that she does not reflexively side with the government in criminal cases. In a 2019 opinion, for example, she concluded that Drug Enforcement Administration agents violated the Fourth Amendment when they searched a suspect's apartment based on the consent of a woman who answered the door but did not live there.

"Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence?" Barrett asked. "We hold that the answer is no. The officers could reasonably assume that the woman had spent the night at the apartment, but that's about as far as a bathrobe could take them. Without more, it was unreasonable for them to conclude that she and the suspect shared access to or control over the property."

In another Fourth Amendment case, decided in 2018, Barrett concluded that an anonymous tip did not provide reasonable suspicion for police to stop a car in which they found a man with a felony record who illegally possessed a gun. "The anonymous tip did not justify an immediate stop because the caller's report was not sufficiently reliable," she wrote for a unanimous three-judge panel. "The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful."

In a 2018 case, by contrast, Barrett joined the two other judges on a 7th Circuit panel in rejecting the Fourth Amendment claims of three men who had been convicted of viewing and possessing child pornography after they were identified as users of the dark website Playpen. The FBI, which ran Playpen for about two weeks in 2015 as part of its investigation, identified people who visited the site via tracing software it installed under a warrant issued by a federal magistrate judge in Virginia. The defendants argued that the warrant was invalid because it purportedly covered searches outside the magistrate judge's district.

Writing for the unanimous panel, Barrett said "we need not decide…whether the searches violated the Fourth Amendment." Even if they did, she said, "the district courts did not err by declining to suppress the evidence, because the good-faith exception to the exclusionary rule applies." Even assuming the warrant was invalid, she thought, the FBI could not reasonably have been expected to realize that.

 


5 comments:

Anonymous said...

Yesterday Trump said that he needs to get a justice on the Court before the election so there are 9 judges there to hear the election case.

He also refused to commit to a peaceful transition of power if he looses.

The day before, it was widely reported that his election team is gearing up to have republican governments in swing states appoint their own electors if they do not like the election result.

These three facts are quite ominous individually, but together spell disaster.

Trump has now made clear that he is picking a justice of the supreme court on the basis of whether or not he believes that individual will help him retain power in a court challenge. What a great qualification.

Anonymous said...

That tweet doesn't take her quote out of context, it flat-out makes shit up. Watch the whole interview. She never says that, in fact she never offers an opinion except to recount the historical practice of election-year appointments, each side's position, and that there is no fixed "rule" favoring either position.

It's irresponsible to post false tweets from some partisan asshole.

Robert Kuntz said...

I have a feeling that this citation is going to come in handy in the next days and weeks:

". . . but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Constitution of the United States
Article VI, Clause 3

Anonymous said...

I'm a liberal/progressive lawyer. I oppose the confirmation of RBG's successor under the McConnell rule. I also think that we are treading on very dangerous grounds questioning whether Judge Barrett's religious views disqualify her for this appointment.

Anonymous said...

What everyone is referring to as the McConnell rule is simply the standard practice for the past 100+ years. Senate and President = same party, vacancy filled. Different parties = vacancy filled after election. The only exceptions have been Kennedy (for the reasons Judge Barrett explained), Fortas for Chief and his replacement (due to Fortas's ethical problems and JBJ's arrogance pissing off his own party) and Brennan (who was recess appointed and then confirmed permanently by the lame duck Senate).