Sullivan should stand up for principle, stand down on Barrett nomination

The United States Senate Republican majority, including Alaska Sen. Dan Sullivan, is poised to rush through the confirmation of Judge Amy Coney Barrett to the U.S. Supreme Court. Alaska voters need to call Sen. Sullivan to slow the process down.

Four years ago, Sen. Sullivan spoke against President Obama’s nomination of Judge Merrick Garland: “The decision to withhold advancement of Mr. Garland’s nomination isn’t about the individual, it’s about the principle. Alaskans, like all Americans, are in the midst of an important national election. The next Supreme Court justice could fundamentally change the direction of the Court for years to come. Alaskans deserve to have a voice in that direction through their vote, and we will ensure that they have one.”

Sen. Sullivan has now reneged on that statement, calling for a speedy confirmation before the November election. His unwavering fealty to President Trump has led him to surrender whatever “principle” he once had.

Alaskans should be mad. This isn’t just unseemly maneuvering in the middle of a presidential election; it also makes a mockery of the deliberative process that is designed to ensure the qualifications of a life-time appointment to the Nation’s highest court.

Judge Barrett’s record reveals she is far from qualified to sit on the Supreme Court.

Amy Barrett was nominated to the Seventh Circuit Court of Appeals by President Trump in 2017.  She came to the bench with no trial experience or prior judicial service.  ]Her career was exclusively in the ivory tower of academia. In her brief three years on the appellate court Barrett earned a reputation of being ideologically driven.  One legal commentator called Judge Barrett’s record on the bench “fundamentally cruel” and said that she has written or joined a remarkable number of opinions that harm unpopular individuals who rely on the judiciary to safeguard their rights.

Judge Barrett’s opinions have cut back on the rights of immigrants, LGBTQ rights in marriage equality, victims of employment discrimination, prisoners, and a woman’s right to choose.  Conversely, she has ruled against gun safety and criminal justice reform. Her decisions have alarmed many national groups, including The Leadership Conference on Civil and Human Rights (which was joined by 150 other groups in opposing her confirmation).

Where does Judge Barrett stand on Native American issues? While her record is thin, Alaska Natives should be concerned. Barrett has repeatedly stated that she shares the late Justice Scalia’s judicial philosophy, and he voted against tribal interests in over 86% of the cases he heard, including all of the cases he considered when she clerked for him in 1999.

Justice Scalia was also skeptical of the Indian Child Welfare Act (ICWA), a 1978 law enacted to prevent state agencies from forcibly removing Indian children from their families and placing them in Native American boarding schools or in non-Indian foster and adoptive homes.  In the earliest Supreme Court case to interpret ICWA, Justice Scalia voted to uphold tribal jurisdiction, but in later years said that it was a vote he regretted.

Judge Barrett’s ultra-conservative views are also evident from her active membership in the far-right Federalist Society, a fringe group that is aligned with the views of the Goldwater Institute, which for years has fought to overturn ICWA’s protections for Native children and families.

Another area where Judge Barrett’s conservative, even callous, approach concerns violence against women. This is an area of special concern for Native American communities. More than 80% of Native women experience violence in their lifetimes, and one in three Native women is sexually assaulted. Judge Barrett’s record on holding perpetrators of sexual assault to account is deeply troubling. Last year, Barrett ruled that a male student who was credibly accused of committing multiple sexual assaults and suspended from a university, could nonetheless bring a lawsuit against the university alleging he was discriminated against because he was a man. As one commenter noted, “Judge Barrett’s ruling turned a sex discrimination statute on its head, using a law meant to prevent and address sexual assault to promote impunity for that same behavior.”

As for federal health care protections, Judge Barrett has made her views on the Affordable Care Act (ACA) crystal clear. In a 2017 article, Judge Barrett opined that the ACA is unconstitutional. If she is confirmed, she will join the Court just in time to overturn the ACA. The implications for Native Americans are not good. The ACA made permanent the Indian Health Care Improvement Act, the cornerstone legal authority for the provision of health care to Native Americans. Further, under the Act, Alaska has expanded Medicaid to more than 46,000 Alaskans and added 3,700 jobs. Barrett’s confirmation and subsequent vote against the ACA will be devastating to Alaska Natives, as well as thousands of other Alaskans.

Sen. Sullivan, stand on principle, stand up against President Trump, and stand down on the nomination.

Heather Kendall is a retired attorney with the Native American Rights Fund.

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