As the second day of the Senate Judiciary Committee meeting to consider the nomination of Supreme Court nominee Amy Coney Barrett is unfolding today, the record of decisions handed down by the Donald Trump (and Federalist Society) pick to replace the late Justice Ruth Bader Ginsburg is being closely examined by the Democrats on the committee.
That record isn’t particularly extensive, given that Barrett has only been a federal judge for two years — another reason that many Democrats question her qualifications for a lifetime seat on the nation’s highest court — but at least one opinion that Barrett authored during her brief tenure so far has raised some serious questions about her judgment.
The case in point was a workplace discrimination lawsuit by Terry Smith, a Black employee of the Illinois Department of Transportation who sued the agency after he was fired. Among the discriminatory actions that Smith alleges the IDOT allowed in what he considered a hostile workplace were being addressed by the “n-word” by his supervisor, Lloyd Colbert.
Barrett joined a unanimous three-judge decision dismissing Smith’s discrimination suit.
Her written opinion in the case demonstrates the kind of thinking that she would bring to the Supreme Court if her nomination is confirmed, a frightening proposition judging from the thinking exhibited in this ruling.
“The n-word is an egregious racial epithet,” Barrett wrote in the case of Smith v. Illinois Department of Transportation. “That said, Smith can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment.”
“[Smith] introduced no evidence that Colbert’s use of the n-word changed his subjective experience of the workplace. To be sure, Smith testified that his time at the Department caused him psychological distress. But that was for reasons that predated his run-in with Colbert and had nothing to do with his race. His tenure at the Department was rocky from the outset because of his poor track record,” the judge continued.
This opinion puts Barret to the right of even Justice Brett Kavanaugh who, when he was serving as a federal appeals court judge in Washington, D.C, ruled that even a single use of the “n-word” was sufficient to establish a hostile work environment.
“But, in my view, being called the n-word by a supervisor … suffices by itself to establish a racially hostile work environment. That epithet has been labeled, variously, a term that ‘sums up . . . all the bitter years of insult and struggle in America,’ ‘pure anathema to African-Americans,’ and ’probably the most offensive word in English,” Kavanaugh wrote in a similar case. “No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans. In short, the case law demonstrates that a single, sufficiently severe incident may create a hostile work environment actionable” under federal anti-discrimination laws.
Setting aside the argument that, after Senate Majority Leader Mitch McConnell (R-KY) blocked President Barack Obama’s final nominee to the court in his last year in office, Trump’s last-minute nomination of Amy Coney Barrett should be subject to the same hypocritical doctrine, Barrett’s lack of experience and her inability to protect the most basic worker protections should be enough to deny her nomination at this time.
Unfortunately, with a solid Republican majority in the Senate, it’s likely that Trump’s nominee will be railroaded through to confirmation before Election Day, perverting our democratic system with right-wing manipulation of the confirmation process, unless enough GOP Senators come down with COVID-19 to prevent a majority to be present in the Senate to hold the confirmation vote.
Given the lax attitude towards masks and personal protective equipment in the Republican party under Trump, it’s not as inconceivable as it sounds.
Original reporting by The Associated Press.
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