Episode 24- Notorious ACB

In this week's episode of Fate of the Union, Franklin reviews the performance of Supreme Court Justice nominee, Amy Coney Barrett, in her hearing before the Senate Judiciary Committee.  We take a look at the politically drive lines of inquiry, along with the more humorous attempts to find something to beat back the momentum of ACB through the confirmation hearing.

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Transcript

Speaker 1: 0:00

Hello and welcome everyone to the fate of the union podcast, a weekly review of the biggest issues in national politics. Given from a conservative perspective, the show also periodically address current true crime cases from across the country. If you like, what you hear, please hit subscribe and leave a review on iTunes or wherever you get your podcasts. Now let's talk about the fate of the union. The date of recording of this episode is Wednesday, October 14th, 2020. At the top of the episode, I encourage everybody to go back to last week's episode of the podcast and listen to our interview with Donna Campbell. She's an artist based out of Virginia. Who's painted various portraits of the president and the first lady throughout different moments of his first term in office and the website and ways to buy art from Donna and support a local artist down there in Virginia. Who's done really well for herself. All that information is in the episode details and description from last episode, but here we are in the middle of October. And as many of you are aware, I'm sure that the confirmation process of one judge Amy Coney Barrett, hopefully soon associate Supreme court justice, Amy Coney Barrett have begun, uh, on Mondays or a couple of days in, at this point. And as expected things have gone off the rails. And I think there were basically two possible routes for this confirmation hearing. One more closely resembles that of justice Gorsuch first appointed by president Trump in his first term, and then confirmed of course. And then the second of the two is the second justice, uh, nominated by president Trump and then confirmed, which is of course pride Kavanaugh. The first one we've seen in justice Gorsuch's case that there were repeated efforts to try to pull him into policy questions, the political question doctrine of the courts. And for those of you who are unaware, normally politically motivated questions. One, the answer that are not really based on the current enactment of the law, in question, those legislative minded questions are not supposed to be answered by the judiciary. And in fact, the case really should be by design should be dismissed immediately because at that point, the judicial system is writing laws. They're filling in gaps of the statutes and questions to an impermissible degree, and actually writing the laws for the federal government. Now, there is enough information to do at least one other episode on the real success rate of especially the federal judiciary's efforts in reserving political questions for the legislative branch. But that's another topic for another day. The second of the two instances that would more closely resemble justice Kavanaugh, his confirmation hearings would be of course, to just flat out lie. We've heard the story of dr. Christine Blazey Ford that has to this day, absolutely no corroborating evidence whatsoever. In fact, the only even tangible plausible supporting evidence would be her doctor, her therapist's notes that apparently describe her or deal with justice cabinet. But of course hadn't been produced to date whether it was during the confirmation hearing several years ago or at any time since, uh, with her receiving various civil rights and civil liberties awards to boot along the way. But here we've seen through the first couple days of the hearings that this is really going to be more of a justice Gorsuch type contest from the Democrats at numerous points. In the last couple of days, you've heard senators try to pull ACB into asking into answering politically motivated questions to the tune of signaling, how she would rule. If the question comes up to the Supreme court and she's on the bench, ironically enough back just before the confirmation hearings of the late RGB now presidential candidate, Joe Biden was really at the forefront of what's been kind of cloak wheel and even more formerly referred to as the Ginsburg rule and in the wake of the scandal scandalized interrogation of nominee, Robert Bork before RGB Democrats led by Joe Biden were certain to enact a certain kind of rules of procedures, uh, ground rules for how they go about confirming Supreme court nominees. And the point of this was to prevent questioning of justice of RGB. That would signal how she would rule in a future case that would come before the Supreme court with her on the bench in practical application. After the Ginsburg role championed by Joe Biden was for all intents and purposes inacted and followed by the Senate judiciary committee. Members of that committee were really foreclosed from asking RGB questions about some fairly controversial scholarship and legal writing she had done outside of the courtroom outside of practice. Things like being very adamant and, uh, supportive of the decriminalization of prostitution of the legalization and legal recognition of polygamy. There are rumors of her past where she at least was toying with the idea of what really should be the appropriate, uh, age of consent or the age of adulthood in the law. These things are, are pretty highly contested or, or seen at the very least it's very controversial in the legal field. But nevertheless, the short of the story is that because of the Ginsburg rule, these topics were, were off limits for justice Ginsburg's confirmation hearing. And thus the process was made all that much smoother. If no controversial writings can be asked about, then it has a higher chance of being kind of by the books. And we know of course, that RGB pest, uh, the confirmation hearing rather easily. And she served, uh, several decades on the Supreme court, but here during ACBSP confirmation hearing, one of the issues that has come up quite a few times is the affordable care act. And in doing so, senators is such as, uh, is such as Kamala Harris, certainly vice president, Kamala Harris, um, Senator fines, Diane Feinstein of California, and others have tried to get a signal from ACB of how she would rule if different issues concerning either the individual mandate or the more general nature of healthcare regulation in the ACA, how would that be ruled upon if she was sitting on the court and she saw a case before her, the other issue is of course, Roe versus Wade in which really essentially every female Democrat Senator and some male Democrat senators as well have tried to pull ACB into that area, uh, too much to their dismay ACB has been very, uh, very adamant about even citing justice Ginsburg, which I think politically is a great play by her in declining to answer the question because there, it adds a sense of credibility and it adds a sense of legitimacy to ACVs interaction with those on, on the committee, asking her questions because not only is she citing the actual kind of rule of procedure, the Ginsburg rule in not opining on open political questions or currently openly litigated questions, but she's also doing some doing so in a way that in a way, pays homage to justice Ginsburg in saying that I'm going to side with justice Ginsburg in not forecasting, not signaling or some of the words, you've heard a few times for how she would rule. And those are words lifted from justice Ginsburg's answers for the few times that during her confirmation hearing the questions did go into politically motivated or openly litigated issues. So I think optics wise is certainly for those in the middle who are either generally in favor of her or somewhere in the middle, but don't feel overly strongly about it. I think that that's kind of an endearing way to go about answering these questions is to put it in a way that not only are you as a matter of judicial ethics, not going to go into these questions, but also in the same vein and in the same way that justice Ginsburg correctly, I think did not want to go into those kinds of questions. ACB too, does not want to venture into issues like Roe versus Wade. Uh, the various, uh, numerous different issues with the[inaudible] constitutionality, whether it be the individual mandate, the effects of what would either be fines versus taxes, what they did or defined as penalties. These cases are ripe to be litigated in the future going forward, especially since there's an interplay between the federal and state government and what is left to the States to govern in the absence of controlling legislation from Congress on issues of either abortion or healthcare. It just adds another Avenue, another vehicle that these issues could use to get to the Supreme court, aside from the substantive application of these laws. There's that added question of well, which level of government should even be making these laws in the first place, even aside from whether it's substantively, correct. Are we the right group of people to be enacting this law even? So for a variety of reasons, I think this is the really the smartest play. And she did very, very well. And with that, I wanted to go into a few of the more humorous instances of the back and forth. And you can see here at daily wire, uh, Andrew Cleveland wrote a piece of satire, which, uh, going through here, you're going to question how close to the chest he's playing with either facts of the case, but it is, um, satire that Democrats senators declared stupidest centers of all possible centers. Now, Mazie Hirono here is pictured because at one point she actually asked ACB whether she ever committed sexual assault or ever committed sexual harassment. And aside from being astonishingly stupid, I think this question was really a very transparent way of placidly trying to show the American public well, these concerns about sexual assault, about sexual harassment. They weren't restricted only to justice, Brent cabinet, his confirmation hearing. We asked this all the time. This is just a matter of course you say, we need to cover our bases as, and make sure that we get this covered every time, which of course is, is not true. Uh, you look one confirmation hearing prior to justice, Neil Gorsuch's confirmation hearing, and you can see that that nothing even approaching such slanderous and scandalous accusations were approached by the Senate judiciary committee, but she actually did outdo herself, which is impressive because asking a conservative Catholic mother of seven from middle America, whether she had committed sexual assault or sexual harassment, by the way, building one of the most impressive legal careers in the country, no less even that was out done by what's covered here a little bit in the piece is that you saw that Mazie Hirono went over. The fact that the term sexual preference is, is actually demeaning. It's discriminatory, it's offensive to members of the LGBT community, and the reason why she gave it the actual reason aside from the sad tire, you see, see here, the real reason is that preference gives the connotation that there was some kind of deliberation. There was a choice in whether or not you chose to engage

Speaker 2: 14:52

In sexual relationships with you chose to identify as someone who is, is restricted to sexual attraction, to those of the same sex. And that connotation of choice, of course undermines the kind of born with it, mentality the idea that this is a really all a journey. And to the extent that there was any time spent between either being straight or being unsure and kind of officially coming out of the closet, that wasn't a deliberation. It wasn't a decision making process. You were actually gay or bisexual or whatever the sexual identity or preference or interest is you are that way, the entire time. And so her claim was that the sexual preference was, was offensive. Now as someone who usually likes to pay pretty close attention to, to these kinds of things in the culture. Um, I have several friends and significant other who is certainly on the left side of the aisle when it comes to social issues and issues of, of culture. Um, and even this one was, was be filing. I was not aware that this was really even hotly contested or objected to in the LGBT community, that simple term of sexual preference. Um, but apparently this came up during the confirmation hearing and you saw that, I believe it was Merriam Webster actually amended and changed the definition of, of preference of sexual preference within it's within its dictionary, at least online, I believe. And now listed that preference in the context of referring to sexual preference while it did give the definition that it shows that it's meant to describe a person's intention or, or choice in who they are sexually attracted to it. It also has now a note within the actual dictionary definition that it's seen as offensive by the LGBT community. Now, many people would think that somebody's subjective interpretation of the word really doesn't belong in a dictionary. That's really a matter of public debate. And it's certainly not a consensus even among the actual supposedly affected class. Again, the LGBT community doesn't seem to have widespread outcry on this issue. So it's odd that this would really have to apply to the population at large, but further, even more stunning development is that this amendment to the definition was done in a matter of 24 hours. So they were very quick to back this up. It's, it's all very transparent and they're not really fooling anyone. I think most people you would talk to is either on one side where they said, this is a very transparent attempt to satisfy the woke left, and try to keep up with the times and keep up with the supposedly affected classes, desire to mandate dev definitions on the one hand and even on the left. I think they would recognize that, yes, this was, this definition was changed, but for some reason of fairness or sensitivity, the change was called for, and it was justified and it's, it's simply a beyond time it's past due to be updated anyway. But, um, I think you'd be hard pressed to find anyone who would contend that this is, was not changed and was not changed in, in hasty order after the questioning from, uh, Senator Hirono. One of the other interesting questions came from Senator spark at Sparta kiss, of course, Corey Booker from New Jersey. And he actually posed the question to ACB about whether she believes a white supremacy exists, whether she denounces white supremacy. This is a woman who, by the way, has adopted two different, um, Haitian children. Uh, I believe one is 17 and the other one is 10. Um, so they've been living with, with the beret family for quite some time now. And as if that wasn't a ridiculous enough question to begin with in the context of, um, of someone who is adopting to black children and welcoming them and welcoming them into their loving home, it's even more ridiculous question to pose and sending a broker did his best to, again, try to parlay that into the president. Trump hasn't denounced it, a white supremacy and the power of white supremacy, which he has over a dozen times in just the last couple years, let alone the entirety of his first term. But that was a, an aside and really a, a transparent vehicle to kind of get that on the record that supposedly president Trump hasn't denounced white supremacy, nevertheless, that that node has been taken a step further and in really ugly direction, by those of the really far left woke racially motivated far left in saying that actually the

Speaker 1: 20:49

ACBS and her husband's adoption of two different Haitian children is actually an act or a demonstration of white supremacy or white colonialism. And the argument as ridiculously strained as it is, goes that well, they really just wanted to exercise dominion over a poor black child. They wanted to kind of act out their historically stored, historically charged inherent racism in having rule over a black child, even though it is just in the context of being an authority figure as a parent.

Speaker 2: 21:33

Um, the very easy

Speaker 1: 21:37

Argument against that, and really what would come first to mind is that I think he'd be very hard to find a white supremacist who would be inclined to save two different black children from really certain absolute poverty and destitution and lack of opportunity and give them a happy life with a large family children, their own age, to play with two parents in the home who by all accounts have nurtured them through the years they've lived with, with the Barrett family, white supremacists really don't act how in that way. It's not all that unlike when you hear these same actors, talk about how actually a white person marrying an ethnic minority is done for very similar reasons to kind of exercise that authority or dominion over someone. And this is kind of almost a on the down low at a loophole, if you will, in culture and society to kind of blow, throw the, throw the scent off the racist trail, but also to act out on these colonialist intentions and, and, and almost genetically in stored stored, uh, mindset. But really the moral of the story is that these, these attacks are failing. These attacks are not getting the point across. Um, ACB has handled with plenty of grace, um, answering the questions based on her own writing based on cases, she's decided about her own legal career, but also again, declined to go into legislative questions into the political question doctrine, but also not take the bait from ms. Characterizations of the president. Like we mentioned before with Senator Booker's false allegation that Trump hasn't denounced

Speaker 2: 23:46

White supremacy, those are done not only to get it on the record and get it on national television again, this lie, but also as a kind of a bait to see if ACV will, will follow the bread, crumbs down that role, because that starts a political debate that starts citation of various quotes from the president. What did he really mean? Who was he talking to? What news Alex was he talking to when he said these things? It's a very, although maybe not for ACB for a lot of people, that would be very tempting to kind of nail that now, right on the head, get it over with and really succinctly and precisely address it. But we all know that's not going to be the end of the exchange we're going to get into, uh, did he say it's soon enough after Charlottesville? Did he say it's soon enough after the debate and that's something as a judicial nominee, you do not want to go down that road. It's tempting. You would be totally in the right factually speaking and even politically speaking. But again, because we are talking politically speaking in the second aspect of that rabbit hole, that's something that's best left for other actors, other people in politics, and should not be addressed in the confirmation hearing. And I think ACB has done a great job of that

Speaker 3: 25:15

And as well

Speaker 2: 25:15

Of answering questions on a myriad of legal subjects, which by the way she did with no notes whatsoever, uh, not a single note was written by, uh, a woman who really I think is going to become a much bigger role model for, for women across the country. Certainly female lawyers, um, just briefly one of the really easy citations for the fact that we don't live in a patriarchy and there isn't that overbearing an overarching male domination, is that at least academically. And then if you look certainly within the criminal justice system, women in America are doing tremendously well tremendously. Well, and it's been on a very stark increase for a solid decade at this point. Um, the majority of college enrollees are female. The majority of law students are female. The majority of law students who go on to pass the bar exam are female. This is a really a tremendous advancement by women in, uh, this particular academic field. So you're seeing that, um, a much larger proportion of younger associates in law firms entering the legal practice or women. Um, and with that being the case and get to see on full display, a female lawyer and jurists of her elk handled questions so gracefully and do so, um, with her family and, and attendance, you saw it was very cute. She was walking with her litany of children and her husband through the corridors of the building and getting situated in, in the room ready to be questioned by the committee. And all of that I think is a really great presentation for women across the country and particular women in the country who are beginning to make their presence known in the legal profession, um, and really starting to make some great as advancements, both in the private practice of law and in the more kind of public spotlight or, uh, public service sector. And none are more, uh, none more exemplified this, uh, this notion and the encouragement of it's trend in the future to produce sharp, uh, talented and, and clearly very intelligent women lawyers in the profession then, uh, who is soon to be Supreme court, associate justice, Amy Coney Barrett. So that does it for this week's episode of fate of the union. You can reach me Franklin, the host of the program on Twitter or medium.com by searching fate of the union, and please visit our new YouTube page over at fate of the union as well. You can also reach us by email@franklinfotuatgmail.com. This has been the fate of the union. Thanks for listening everybody. Bye bye.