As Donald Trump’s latest Supreme Court nominee, Amy Coney Barrett, undergoes questioning on the third day of her confirmation hearings, questions are being raised about a massive potential conflict of interest in a case that is destined for the court’s docket in the months ahead.
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Less than two weeks ago, the Supreme Court agreed to hear an appeal by Royal Dutch Shell and other massive fossil fuel companies that are being sued by cities and states for the environmental and climate change-related damage those companies caused. Shell and the other polluters are petitioning the court to allow the case to be heard in federal court where they expect a friendlier reception than in the state judicial systems.
If you’re wondering where Judge Barrett’s conflict sits in all of this, consider the fact that her father, a corporate attorney, spent most of his legal career as an attorney with Shell in New Orleans.
Yes, Royal Dutch Shell, a petroleum producer whose own internal company documents — uncovered by a Dutch news organization — show that they were aware as far back as the 1980s of the science and risks of global warming caused by fossil fuel emissions.
Barrett has already listed Shell on the recusal list that governs her tenure in her existing role as a judge on the Seventh Circuit Court.
“The Seventh Circuit employs an automatic recusal system to help identify potential conflicts for the judges. Each judge maintains a recusal list, and a computer program flags potential conflicts against that list,” Barrett explained.
Barrett was questioned yesterday by Senator Patrick Leahy (D-VT) about whether she would recuse herself from any potential Supreme Court cases regarding disputes over the 2020 election, a likely outcome given the blustering already being fomented by Donald Trump over the supposed massive mail-in ballot fraud that he’ll blame for his expected loss.
Her initial response was rote and reassuring.
“I commit to you to fully and faithfully apply the law of recusal and part of that law is to consider any ‘appearances’ questions,” she replied to Senator Leahy.
In a later exchange, however, she gave a more nuanced answer that was less unconditional in its promises.
“Recusal itself is a legal issue. You know there’s a statute, 28 U.S.C. § 455, that governs when judges and justices have to recuse; there’s precedent under that rule. Justice Ginsburg, in explaining the way recusal works, said that it’s always up to the individual justice, but it always involves consultation with the colleagues — with the other eight justices. So that’s not a question that I could answer in the abstract.”
Refusing to answer hypotheticals was a common thread throughout Barrett’s testimony yesterday, much to the chagrin of the Democratic Senators trying to draw out the nominee’s pre-existing prejudices.
Give Barrett’s ostrich-like, GOP-friendly reply to a question on her views on climate change — “I’ve read about climate change. I’m certainly not a scientist. I mean, I’ve read things on climate change. I would not say I have firm views on it.” — everyone to the left of a Hummer owner is seeking a more definitive answer to questions about whether she will recuse herself in cases involving the company her father worked with for so many years.
That the U.S. Chamber of Commerce — which has filed an amicus brief supporting Shell and the other petroleum giants in the case — has been “mobilizing its resources and lobbying lawmakers and businesses across Washington,” as Axios put it, to ensure Barrett’s confirmation doesn’t inspire a great deal of confidence in progressive eyes over her future rulings if she does make it to the court.
“America’s free enterprise system depends on the fair application of the law, and the U.S. Chamber of Commerce has no doubt that Judge Barrett will treat all litigants — including the business community — fairly,” said Chamber president Thomas Donohue. “She will make an excellent associate justice.”
Perhaps for the Chamber of Commerce, she will. But for the rest of America’s ordinary citizens, who seek a sustainable planet with clean air, clean water, and a reversal of climate change, Barrett’s confirmation will likely lead to more downed trees, more polluted rivers, and more corporate control of common resources like pristine wilderness and mineral-rich public land.
Call your Senator today and insist that they vote against the confirmation of Amy Coney Barrett to the Supreme Court and allow the winner of the election just 20 days from now to pick the replacement for Justice Ruth Bader Ginsburg.
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