Into Amy Coney Barrett's Record on Race
Dick Durbin: Have you seen the George Floyd video?
Amy Coney Barrett: I have.
Durbin: What impact did it have on you?
Barrett: Senator, as you might imagine, given that I have two Black children, that was very, very personal for my family.
Trymaine Lee: That's Judge Amy Coney Barrett and Democratic Senator Dick Durbin of Illinois during Senate Judiciary Committee hearings on her nomination to the United States Supreme Court. Now, most of the attention so far has focused on Judge Barrett's views on abortion and her judicial philosophy as an originalist, meaning someone who interprets the text of the Constitution based on its perceived meaning at the time it was ratified, which was way back in 1789 when, by the way, women didn't even have the right to vote. So you know it's been a minute.
But there's also a lot to unpack when it comes to Judge Barrett and matters of race. (MUSIC) I'm Trymaine Lee and this is Into America. The Senate Judiciary Committee is set to vote this week on Amy Coney Barrett's nomination. So today, we take a closer look at the high stakes for basic civil rights protections that many of us thought were settled a long time ago, and why the nation's premiere racial justice legal organization is deeply troubled by Judge Barrett's record and the approach she's likely to bring to the highest court in the land. Janai, thank you so much for joining us.
Janai Nelson: I'm happy to be here.
Lee: Janai Nelson is the associate director-counsel of the NAACP Legal Defense and Education Fund. Her group issued a statement strongly opposing Amy Coney Barrett's nomination. I wanted to have Janai on to talk about all of that, but also to get her reaction to the hearings. We started with that moment where Judge Barrett answered Senator Durbin's question about the video of a police officer kneeling on the neck of George Floyd, and how it impacted her.
Barrett: My 17-year-old daughter Vivian, who was adopted from Haiti, it was very difficult for her. We wept together. My children, to this point in their lives, have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence.
And, for Vivian, you know, to understand that there would be a risk to her brother or the son she might have one day of that kind of brutality has been an ongoing conversation. It's a difficult one for us, like it is for Americans all over the country.
Nelson: Well, I can't hear that out of the context of what followed. And what followed was an exchange about what that actually meant for her and whether she believed that there is systemic racism in this country.
Durbin: I'd like to ask you, as an originalist who obviously has a passion for history, where are we today when it comes to the issue of race?
Barrett: I think it is an entirely uncontroversial and obvious statement given, as we just talked about, the George Floyd video, that racism persists in our country. As to putting my finger on the nature of the problem, you know, whether it's just outright or systemic racism, or how to tackle the issue of making it better, those things, you know, are policy questions.
They're hotly contested policy questions that have been in the news and discussed all summer. Giving broader statements or making, you know, broader diagnoses about the problem of racism is kind of beyond what I'm capable of doing as a judge.
Nelson: And the inability to opine on that question was actually in stark contrast to what I think was quite emotionally resonant in terms of how watching the video impacted impacted certain members of her family, in particular the Black children that she's raising.
And there was a disconnect, frankly, that I felt between recognizing the direct impact that it has on members of her family and, frankly, should have on her entire family, and yet an unwillingness to acknowledge the greater forces that produce these, you know, instances of violence that can be visited upon any African American in this country, including, you know, members of her own family.
As she rightly recognized but somehow was unable to really, as she said, put her finger on what the actual problem was. And so that was actually quite disappointing after hearing what was a very difficult conversation for her to have about the reaction of her family.
Lee: You know, she ended up saying that, "You know what? This is a policy issue, a policy concern. You know, not in my purview as a judge. It's not my role as a judge to solve these issues." What do you think?
Nelson: Yeah. Racism is not a policy issue. Certainly policies help enable racism. Policies can deter racism. So there are many important roles that policy can play. But acknowledging the fact of racism is something that anyone, including a judge in our society, and frankly especially a judge in our society who is going to have to opine on those very policies and rules and interpret fact patterns to discern whether racism exists, needs to at least, as a baseline, accept that racism is something in this country that must be contended with.
We're not asking her to decide a particular set of facts, or to decide whether the law applies to a particular scenario or particular parties in a lawsuit. This is such a general question that it is really alarming and disappointing that one can express an emotional response to something like the George Floyd video but yet not really draw the connection between societal racism and implicit bias.
Lee: How do you think having these Black children may or may not have shaped her views on race?
Nelson: You know, I can't get into her head or into her family. But if you're going to invoke the reaction of your children and your engagement on that issue because you have two Black children, I do expect that you have done some thinking about the issue of race. And that you can articulate an understanding of racism in this country, not just as a parent but also as just a citizen in this world. And we're not asking for her to suggest what her rulings might be as a judge. But in this society, she should have some opinion on how we articulate race.
Lee: You know, there was another exchange that stood out to me, another one with Senator Durbin. And he asked Amy Coney Barrett about a case from 2019 that she saw when she was sitting on the bench at the Seventh Court of Appeals. Judge Barrett's position was that a man named Ricky Kanter should not be automatically disqualified from owning a gun just because he'd been convinced of a felony, which opened up a whole other can of worms.
Durbin: There's also a question as to whether the commission of a felony disqualifies you from voting in America. We know that, in Reconstruction, in the Jim Crow era, in Black Code era, that was used. A felony conviction was used to disqualify African Americans from voting in the South and many other places.
The Sentencing Project today has found that more than 6 million Americans can't vote because of a felony conviction, and one out of every 13 Black Americans have lost their voting rights. The reason I raise that is that you said disqualifying a person from voting because of a felony is okay, but when it comes to the possession of firearms, "Wait a minute. We're talking about the individual right of a Second Amendment." So you're saying that a felony should not disqualify Ricky from buying an AK-47, but using a felony conviction, someone's past, to deny them the right to vote is all right?
Barrett: Senator, what I said was that the Constitution contemplates that states have the freedom to deprive felons of the right to vote. It's expressed in the Constitutional text. But I expressed no view on whether that was a good idea, whether states should do that.
Durbin: Well, I will just tell ya that the conclusion of this is hard to swallow. The notion that--
Nelson: I'm thinking it's incredibly disturbing. You know, we see that Judge Barrett went through great lengths to write a fairly long decision, a 37-page dissent, in that case where it was clear that the right to purchase firearms under the Second Amendment could lawfully be curtailed because of the nature of the crime that was committed.
And for her to draw the contrast between the right to purchase firearms and the right to vote, and to suggest that the right to vote could be minimized because of one's felony conviction but not the right to purchase a firearm when there's a clear nexus, right, between why one might be concerned about firearm purchase, and someone who's committed a crime, and there certainly shouldn't be one between someone who's been convicted of a felony and their right to vote.
You should not lose your right to vote simply because you've been convicted of a felony, and particularly because the lion's share of individuals who cannot vote are people who are no longer even incarcerated. You know, the Legal Defense Fund has long argued that, even while you're in prison, you should be able to vote. That that should not be a barrier.
But even if you're on a more conservative side of things, the idea that that should continue to bar you from being a full participant in our society is deeply concerning. And particularly because of the severe impact that it has on communities of color. One in 13 African Americans cannot vote because of felon disenfranchisement laws.
Lee: I wanna address one more specific case that came up during the hearings, the case of Terry Smith. It was about racial discrimination in the workplace. Democratic Senator Cory Booker pressed Barrett on this one question a lot.
Cory Booker: The case involved an African American traffic patrol officer who had been fired from the Illinois Department of Transportation. This employee claimed that he had been subjected to hostile work environment, and that the supervisor called him the N-word.
But you ruled that the employee had failed to make the case that he had been fired in retaliation for his complaints about race discrimination. And now you acknowledged that, quote, "The N-word is an egregious racial epithet." But you went on to insist that the employee couldn't, quote, "Win simply by proving that the N-word was uttered at them."
And that he failed to show that his supervisor's use of the N-word against him, quote, "Altered the conditions of his employment and created a hostile or abusive working environment." And you said that, even based on his own subjective experience, this Black employee had, quote, "No evidence that his supervisors were lashing out at him because he was Black."
Barrett: Well, Senator Booker, that opinion was written very carefully to leave open the possibility that one use of that word would be sufficient to make out a hostile work environment claim. The problem was that, in that case, the evidence that the plaintiff had relied on to establish the hostile work environment involved other, you know, he was driving the wrong way down a ramp and then expletives were used, not the N-word. And the N-word was used after his termination had already begun. And he didn't argue, under clear Supreme Court precedent--
Nelson: So that's a case called Smith versus Illinois Department of Transportation. It was a unanimous decision, I should note. And the two other judges, Reagan appointees, all agreed that his case should not continue. It should not move forward.
But it's important to understand what the appellate panel was supposed to do, Judge Amy Coney Barrett and her two colleagues were supposed to do, was to look at the evidence in the light most favorable to Mr. Smith. And to see if, under those facts, they could support a finding of discrimination under Title VII.
And really quite disturbingly, Judge Barrett suggested that calling Mr. Smith the N-word alone was not enough to establish a hostile work environment. What I found most disturbing was that, if you were viewing the evidence in the light most favorable to Mr. Smith, and you hear all of the other allegations, the court acknowledged that he was treated unkindly and treated harshly and that he had very disturbing interactions with his superiors.
And what was missing there, according to Judge Barrett, was perhaps a very specific statement that race played a role in that, and the evidence of calling him the N-word was evidence of that. But you're supposed to be able to look at those facts and say, "Hmm. It's quite possible that calling someone the N-word after they file the complaint, after they've suffered all of these negative engagements with you, that perhaps all of that was motivated by race."
Lee: Just perhaps, if I walk into 30 Rock after complainin' for weeks, and I'm called the N-word, I think that's the cherry, the proverbial N-word cherry on top, I'd have to imagine.
Nelson: It's a bit of an indicator, wouldn't you say?
Lee: But what do you think that says? Like, what can we draw from that case and that ruling in particular about how Amy Coney Barrett might judge similar cases or see similar cases in the future? Does it say anything about who we think she is and how she might rule?
Nelson: Well, it does, and it suggests that there are some blinkers in terms of seeing race in all of its complexity in this society. And that is a critical requirement of any judge in our modern society where racism displays itself in very direct and blatant ways, and also in subtle ways, and also in ways that combine all of the above and then some. And you have to be capable and willing to tangle with difficult facts, and understand them in a way that, at a minimum, gives people access to justice.
Lee: After the break, Janai talks about what led the Legal Defense Fund to issue its statement opposing the nomination of Judge Amy Coney Barrett to the Supreme Court. Stick with us.
Lee: And we're back with Janai Nelson. So your organization put out a detailed statement opposing the nomination of Judge Barrett. When it comes to race specifically, why are you so concerned? And, like, really, what are some of the issues that could come before the Court that really you're already startin' to get a little stomachache over?
Nelson: Yeah. You know, there are a number of them. She's written quite a bit on a number of issues. She's given a number of speeches. And she's articulated her viewpoints on a number of issues, and there are several that jump out that, you know, one may not conceive immediately as racial justice issues. But I think if we, you know, just scratch the surface, we'll see that they are.
One is voting rights, and we just talked about the way in which she interprets the right to vote. Even at her hearing, she suggested that she agrees it's a fundamental right, but it's one thing to say it and it's another thing to treat the right to vote as a fundamental right.
Affirmative action is another issue that has been winding its way through the courts for many years, and is also part of a concerted campaign on the part of conservatives to dismantle at some of our nation's leading institutions. We're also faced with a case that's already on the Supreme Court's docket this term, and that is a challenge to the Affordable Care Act.
And the racial implications there are really profound. You know, under the Affordable Care Act, all Americans benefited from an increased access to health care coverage, but African Americans and other marginalized groups in particular saw a significant increase. I mean, you know, we're talking about over 5 million Latinx people, about 3 million African American people, over 70 million non-elderly people had access to health care that they had not previously had.
So this is a significant benefit, a health benefit, to our society at large and especially to groups that have suffered racial health disparities. But, you know, with a threat to the individual mandate, and with the writings that she's already issued, calling into doubt the Constitutionality of the Affordable Care Act, we have reason to believe that she, you know, may not rule in favor of it, and that could have extraordinary consequences. Especially if you think about the fact that we're in the middle of a pandemic.
Lee: Part of the Legal Defense's pushback against Judge Barrett's nomination is that her philosophy is extreme originalism. What does that mean?
Nelson: So Judge Amy Coney Barrett subscribes to something that seems to be even stricter than her mentor, Justice Scalia, and others who subscribe to originalism. You know, she's basically said that the Constitution should be interpreted as what it meant at the time it was ratified, but that public meaning, the original public meaning, is authoritative.
So we're talking about public, you know, that is now over two centuries old. And we're supposed to be bound by what that public thought the meaning of the Constitution should be. You know, that just doesn't make any sense, and it doesn't in any way allow for a society's growth. It doesn't allow for a democracy's maturity.
It doesn't allow for just basic evolution of ideas. And it freezes us into a time frame that we know was inherently unfair and unjust to women, to racial and ethnic minorities, to even religious minorities in some ways. So I think that you'd be hard pressed, if you really tease out the theory of originalism, and certainly the strain of it that she subscribes to, to find many people who would agree that they want to go back, you know, over two centuries and live by the word of that public. And yet, that is the belief of a person nominated to fill a vacancy on the United States Supreme Court for a lifetime appointment. This is where we are.
Lee: But also, Brown v. Board of Education, 1954, obviously desegregated schools. What do we know absolutely Judge Barrett's views on Brown v. Board?
Nelson: Well, what Judge Barrett has said is that Brown versus Board of Education is what she is calling super precedent, which means it's a decision that has been around for so long, has such widespread support about which there is little controversy. And therefore, it is a case that, in her mind, is unlikely to be overturned.
So that's her way of sidestepping the very straightforward question of whether Brown was correctly decided. If you follow originalism, the theory of Constitutional interpretation that we've been discussing, you could potentially think that Brown is reversible.
She's saying, in practicality, that won't happen. But she's not saying that, based on an understanding of the law and how she interprets the law, that that is an impossible notion. Even if that doesn't happen, what we're most worried about is how she will interpret all of the laws and cases that stem from Brown's promise that dismantled racial apartheid in this country.
How will she interpret those ideas of equality? How will she interpret, you know, education access and all the ways in which we use the premise of Brown to continue to buoy this society into a stronger and more equitable democracy?
Lee: Is there anything you heard from the hearings from Judge Barrett that might make you reconsider strongly advising against her nomination?
Nelson: I think we all, you know, hoped perhaps that there could be some assurance. And sadly, I found none. And the opportunities that she had to explain her positions more, she did not take. She was very adamant in cloaking herself in the robe of a judge, and suggesting that she could not offer any views on any issues.
If she can't answer the questions of how you describe racism in society, if she can't put her finger on that, you know, if she can't answer various and sundry questions that were posed that were broad in scope, that were not specific to any case, that suggests to me that she has a concern about how we would perceive her answer. And that gives me great pause and, frankly, great heartburn.
Lee: Oof. Janai, thank you very much. These are tough times. The stakes couldn't be higher. And I thank you so much for joining us to help break it down for us. Thank you very much.
Nelson: Thank you so much for having me. This was a great conversation.
Lee: That was Janai Nelson, associate director-counsel of the NACCP Legal Defense and Education Fund. Into America is produced by Isabel Angel, Allison Bailey, Aaron Dalton, Max Jacobs, Barbara Raab, Claire Tighe, Aisha Turner, and Preeti Varathan. Original music by Hannis Brown. Our executive producer is Ellen Frankman. Steve Lickteig is executive producer of audio. I'm Trymaine Lee. We'll be back on Thursday.