Wednesday, October 14, 2020

538 reports that Barrett is conservative but asks HOW conservative

In this morning’s email, FiveThirtyEight asks How Conservative Is Amy Coney Barrett? - and answers.

It’s a question we’ve asked before with other appellate judges who have been nominated to the Supreme Court — most recently with Justice Brett Kavanaugh — but it’s surprisingly difficult to answer with any precision. On the one hand, we know that Barrett’s appointment would mean a huge rightward shift on the court, as she is far more ideologically conservative than the late Justice Ruth Bader Ginsburg. But on the other hand, we don’t really know how conservative Barrett would be if she’s confirmed.

We can look to her track record on the 7th U.S. Circuit Court of Appeals, though, for clues. Barrett has served on that court for almost three years now, and two different analyses of her rulings point to the same conclusion: Barrett is one of the more conservative judges on the circuit — and maybe even the most conservative.

University of Virginia law professors Joshua Fischman and Kevin Cope analyzed more than 1,700 cases that the 7th Circuit has heard since Barrett joined the court in 2017, including 378 where Barrett cast a vote,1 and according to their analysis, Barrett is part of a cluster of conservative judges at the rightmost edge of the 7th Circuit.

You can fill in the blanks by going to the 538 report, link above.

… she does vote slightly differently depending on the composition of the panel, rather than being consistently conservative regardless of who she’s voting with.

Clifford W. Berlow, a partner at the law firm Jenner & Block who specializes in appellate litigation, said that this is in line with the 7th Circuit’s general reputation as a polite, respectful circuit. “I don’t think you’ve seen from Barrett or any of the other [Trump appointees] the sort of scathing, scorched-earth dissents or biting concurrences that you might see in some other circuits,” Berlow said. He added that he wouldn’t be surprised if Barrett carried this sense of collegiality with her to the Supreme Court.

Overall, though, it’s plain from Barrett’s record why Republicans are eager to confirm her before the election and why Democrats are dead-set against her. With only a few years under her belt as a judge, she’s established herself as one of the most conservative members of a court that already has a lot of Republican appointees. If she’s confirmed, it seems fairly safe to assume that she would continue that pattern — even if she’s occasionally willing to break from her fellow conservatives.

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