Amy Coney Barrett:
1. Progressives should stop relying on the courts to achieve any poliical objective and to avoid politically risky votes. To that end, progressives should:
(a) Introduce an federal measure to protect abortion rights, including federal standards for rights per trimester, scope of the government’s right to paid abortions, parental notification, and etc. The details of this legislation can be worked out, but there is no need to leave these kinds of decisions to the states or to the courts.
(b) Introduce a general federal measure setting forth Congresses’ view of the appropriate scope of the Commerce clause power
(c) Abolish the federal death penalty and withdraw federal funding from local court systems which maintain the death penalty
(d) Pass a new voting rights bill
(e) Pass an anti-lynching bill
(f) Pass a police reform bill, withdrawing funding from states which authorize no-knock warrants and making other changes
(e) amend Title 1983 to limit or abolish qualified immunity
(f) amend 28 U.S.C. 1954 and 1955 to restore full habeas review
(g) Pass a constitutional amendment to overrule Citizens United (I am not personally in favor, but if progressives want it they should pass it).
(h) pass legislation to statutorily enact Miranda and the fourth amendment exclusionary rule.
(i) pass legislation to federally guarantee the right to marry.
2. There is no sharp “liberal” or “conservative” split on many legal issues. On issues of personal liberty, including incorporation of first ten amendments into the due process clause of the fourteenth, the debate is over, and it is extremely unlikely that changes in the court will have any effect. Indeed, the only twist the originalists have added is a renewed emphasis on the privileges and immunities clause, which is probably a good thing.
There is no reason to believe that Amy Coney Barrett will be bad on any of these personal liberty issues, and she might be good. And liberals should be prepared to grant that the free exercise of religion is also a guaranteed constitutional right.
The older generation of law and order conservatives like Rehnquist and Burger were hostile to individual rights and generally pro government. But this was not true of Scalia, Kennedy, or, in many instances, Thomas.
For the foreseeable future the court will be led by the troika of Roberts, Gorsuch, and Kavanaugh.
3. If I were Senator presiding over Coney Barrett’s confirmation I would address her as follows:
I believe you are a serious jurist and constitutional scholar. I respect your service. I would not have nominated you for a number of reasons, among them your relatively short service as a federal appeals judge and the need to maintain a diversity of viewpoints and perspectives on the court. I have absolutely no quarrel with your religion, your family, or your personal beliefs.
But I cannot vote to confirm you before January 20, 2021. There is almost no precedent for such a late nomination shortly before a hotly contested election. The voters deserve the opportunity to weigh in by voting for President and for the Senate.
Should Donald Trump be relected, I will be happy to participate in hearings on your nomination beginning on January 21, 2020. At that time I will be happy to share my views with you, to ask you questions, and to hear what you have to say. I will keep an open mind on your nomination.
But I cannot participate in these hearings at this time. I wish you well.