WASHINGTON — Many Republicans have hailed Amy Coney Barrett, a favorite to be President Trump’s nominee to the Supreme Court, as a dream candidate: a relatively young woman of impeccable conservative credentials. The federal circuit court judge believes that life begins at conception. She is a critic of the Affordable Care Act, the Obama-era health care law that Trump wants badly to dismantle. She has upheld restrictive immigration statutes while protecting corporations from lawsuits.
But she has also been consistently against injecting politics into the business of judging, presenting a potential problem for those who see the Supreme Court as a means of achieving ends not possible through legislation.Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals is a law professor at Notre Dame University. (Matt Cashore/Notre Dame University/Handout via Reuters)
“I would have had no interest in the job if the job was about policymaking and about making policy decisions,” she said last year in an address at conservative Hillsdale College. “If we reduce the courts to mere politics, then why do we need them? We already have politicians,” Barrett added a little later. “Courts are not arenas for politics.”
If she is indeed nominated, and if that conviction — expressed long before she became a Supreme Court favorite — holds, Barrett’s tenure could lead to a profound disenchantment.
Progressives are not so sure about Barrett’s aversion to politics. “Candidates don’t get on the Trump shortlist without having passed all the litmus tests, which boil down to ‘I will rule for the Republican Party,’” a staffer for a Democratic member of the Senate Judiciary Committee told Yahoo News.
Barrett was recommended to Trump by the Federalist Society, a conservative judicial activist organization. Her backers include the Susan B. Anthony List, which fervently opposes abortion rights.
Yet lifetime tenure comes with immunity to political pressure. That, and the enormous import of each case heard by the Supreme Court, can uncouple judges from the very political forces that helped install them on the high court.
The right has recently experienced this with Chief Justice John Roberts, whom George W. Bush nominated to the Supreme Court in 2005.Chief Justice John Roberts at a private ceremony for Justice Ruth Bader Ginsburg at the Supreme Court on Wednesday. (Andrew Harnik-Pool/Getty Images)
Writing in the New York Times shortly after the nomination, legal scholar Jeffrey Rosen described how Republicans hoped Roberts would use “his intelligence and charm on behalf of his deeply conservative views to move the court far to the right.”
It didn’t turn out that way. On abortion, immigration and health care, he has issued opinions that handed victories to the court’s liberals. Each time he has done so, the howls from the right have grown louder, despite the fact that he has sided with conservatives in major cases on voting rights and campaign finance.
“Chief Justice John Roberts has been a disappointment to conservatives,” Vice President Mike Pence said in August.
There is no way to know whether Barrett would be a similar disappointment. For one thing, she hasn’t been selected yet, though she does appear to be the frontrunner (Trump said he will announce his selection on Saturday afternoon). And past is rarely prologue for the Supreme Court, whose uncommon pressures can reshape seemingly solid convictions. Much as progressives may loathe Brett Kavanaugh, who won a seat to the high court in 2018 despite testimony accusing him of sexual assault, some now see him as a backfield tackle keeping an emboldened conservative bloc at bay.
This much is clear: Barrett plainly believes that judging is a sacrosanct business upon which the unseemly reality of politics should never intrude. It is a belief she held long before she appeared on President Trump’s list of potential Supreme Court nominees. And she has maintained that belief even after being one of the finalists for the nomination that eventually went to Kavanaugh.
(Trump was especially impressed by Kavanaugh’s pedigree, which includes degrees from both Yale University and Yale Law School. Barrett earned her undergraduate and law degrees from Notre Dame; people familiar with the matter say her interview with Trump in 2018 was a disastrous affair, with the president apparently unconvinced that she looked the part. That has been an important criterion in his nominations to top government posts.)
“I conceive of justices as being driven by first-order commitments to constitutional methods rather than solely by partisan political preference,” she wrote in a 2013 article for the Texas Law Review. Later in the same article, she wrote that “partisan politics are not a good reason for overturning precedent. But neither are they a good reason for deciding a case of first impression.”
The word “precedent” is especially loaded when it comes to abortion. Precedent, on that issue, is Roe v. Wade and Casey v. Planned Parenthood of Pennsylvania, both of which outlined conditions under which an abortion could be performed. Republicans’ judicial nominees worried that they will be depicted as abortion foes often make overtures about respecting precedent. They usually do so when pressed in a congressional hearing room, not in their own academic writings.Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg at the National Press Club in Washington, D.C., in 2014. (Alex Wong/Getty Images)
Barrett clerked for two conservative legal icons: Antonin Scalia of the U.S. Supreme Court and Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit, often known as the second-most-important court in the country. The careers of both men are marked by an adherence to conservative principle — but not necessarily to conservative politics. (Scalia died in 2016; Silberman is now a senior judge on the D.C. circuit court.)
Barrett has written and spoken admiringly of Scalia’s conservatism on many occasions. Paradoxically, that could prove a problem to conservatives, since that conservatism was rooted in a philosophical understanding of the law, not a desire to achieve the policy goals of political conservatives.
David M. Dorsen, the author of a book on Scalia’s liberal undercurrents, wrote in the Washington Post in 2017 that “Scalia was personally a committed conservative and originalist,” much as Barrett is. “Yet Scalia’s commitment to his jurisprudence led him to write many important liberal opinions, although they are less well-known than his conservative decisions, with their often provocative language.”
An attorney who was formerly a senior staffer in the West Wing argued that it was liberals, not conservatives, who sought to “import questions of politics into the task of judging.” He said Barrett has displayed a “commitment to a conservative jurisprudential approach.”
Some of the president’s supporters have pushed him to instead select Barbara Lagoa, a conservative judge on the 11th U.S. Circuit Court of Appeals. But others on the right worry that Lagoa has not shown a sufficient commitment to overturning Roe.
Barrett has not issued major abortion-related opinions in her brief time as a circuit court judge. But she has said that Roe is unlikely to be overturned, while at the same time allowing that greater state-level restrictions are possible.
The question is how any personal beliefs she has would translate into a judicial philosophy, as some hope and others fear.
More than most other judges, Barrett has thought deeply about the intersection of belief and jurisprudence. In 1998, she co-authored a Marquette Law Review article titled “Catholic Judges in Capital Cases,” in which she discussed how Catholic judges could square the opposition of the church to the death penalty with their duty to rule fairly in a death penalty case.
She noted that Jewish and Quaker jurists could have the same objections. In a complex argument that touched on Catholic doctrine, legal history and moral philosophy, Barrett concluded that judges “cannot — nor should they try to — align our legal system with the Church’s moral teachings whenever the two diverge.”
The complex and sometimes contradictory ways in which political realities, judicial arguments and personal beliefs overlap have continued to consume Barrett in recent years. In 2016, for example, she presented a complex argument in the Penn Law Review that drew a distinction between the courts, which may well decide to leave precedent alone, and Congress, whose “political actors” can take legislative action whenever they sense the will of the people pressuring them to do so. The courts are immune to such pressure, she suggested.President Barack Obama nominates Judge Merrick Garland to the Supreme Court in March 2016. (Chip Somodevilla/Getty Images)
That same year, she spoke at a symposium at Jacksonville University. The presidential election was then a week away. There was an empty seat on the Supreme Court, that of her mentor Scalia, who had died unexpectedly earlier that year. President Barack Obama had tried to nominate Merrick Garland, the chief judge of the D.C. circuit court — a colleague of Silberman, for whom Barrett clerked — to that seat, but congressional Republicans prevented him from doing so.
(Speaking shortly after Scalia’s death, Barrett argued on CBS News that it would be improper to have his seat go to a left-leaning Obama nominee. Now, of course, Barrett herself stands to take the seat of the consistently liberal Ginsburg.)
Barrett was asked to comment on the ideological requirements for a potential justice that both Trump and Hillary Clinton had outlined.
Such requirements “are what’s wrong with our nomination process,” Barrett answered, criticizing politicians who she said were eager to appoint judges who would accomplish their policy objectives, whether on abortion or racial matters. “The candidates are talking to the bases and talking to the electorate and saying, ‘Signal: I’m going to put people on the court who share your policy preferences.’”
That, Barrett said, is “not the right qualification for a justice. We shouldn’t be putting people on the court that share our policy preferences. We should be putting people on the court who want to apply the Constitution.”
For progressives, an originalist or textualist approach to the Constitution espoused by Barrett would accomplish precisely the same conservative policy goals she says have no business in the courtroom.
“Trump and others have a belief that they will deliver for them,” said Lena Zwarensteyn, who directs judicial campaigns at the Leadership Conference on Civil & Human Rights. “If they’re on that list, it’s because of that. That is what they’re being put there to do.”
Barrett’s supporters insist it is not so and that she is not merely espousing the careful arguments every judge has learned to deploy since the failed nomination of Robert Bork.President Ronald Reagan at a press conference in 1987 with his Supreme Court Justice nominee Robert Bork. (Diana Walker/The Life Images Collection via Getty Images)
“Any of President Trump’s three Supreme Court finalists have a proven track record of following the law, without fear or favor,” said conservative activist Mike Davis of the Article III Project, which works to confirm conservatives to federal judgeships. The other two finalists are Lagoa, a Florida judge of Cuban heritage, and Joan Larsen, a former University of Michigan legal scholar who now sits on the Sixth Circuit Court of Appeals.
Barrett has continued to voice her no-room-for-politics stance even after coming close to being nominated in 2018.
“The law simply does not align with a judge’s political preference, or personal preference, in every case,” she said last year at Hillsdale, in remarks she likely knew would be scrutinized were she to be eventually nominated to the Supreme Court. “And so it will be the case that judges have to make hard decisions, and that they have to decide cases in ways that yield outcomes that are not the outcomes they would prefer.”
Progressives were steadfastly unimpressed by Barrett’s assurances of intellectual independence. “If I had a nickel for every Republican nominee who made a similar promise and then went on to overturn precedent,” says Alliance for Justice founder Nan Aron, “I’d be one rich lady.”
Cover thumbnail photo: Photo illustration: Yahoo News; photos: Reuters, Getty Images
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I just don't get it.
Democratic presidential nominee Joe Biden is facing off against a candidate that even his supporters agree can oftentimes be irrational, unpredictable, vulgar and unprofessional. But his opponent - President Trump - is also heavily favored by the great majority of small business owners I know and work with. Why?
It's because Trump's policies are simply more business friendly. He's anti-regulation, anti-environmental and anti-labor. Sure, he favors big businesses, but then again it's the big businesses that provide so much livelihood for small businesses, not to mention that their employees spend their wages at pizza shops, restaurants and their local dry cleaners. Trump wants less government oversight (to wit, his opposition to ObamaCare) and lower taxes. As such and under his administration, the U.S. economy - up until COVID-19 - was in the midst of a significant expansion and experiencing historically low unemployment levels. Under Trump, small business confidence - as well as our profits - soared.
So, Joe Biden, who I believe has many good qualities as a presidential candidate, has a big job to do. He must convince America's small business owners - a voting block of about 30 million - that he's their supporter too. He must demonstrate for them all of the pro-business policies we can expect to see under a Biden administration. He must assure us that we will be able to recover, hire and grow. So, what does he do?
He forms a committee.
Yeah, that's right, a committee. Or as he calls it: a small business advisory council. In a big media announcement dutifully covered by the Washington Post, Biden's campaign announced a council made up of small business owners, both low and high profile (former Democratic presidential candidate Andrew Yang is one of them) and some ex-Obama-era small business administration officials like Karen Mills and Maria Contreras-Sweet. Oh, and a preponderance of ice cream store owners because he loves ice cream, and no, I'm not making that up. He's also running a few ads and expressing his love and support for small businesses at selected campaign stops.
Yup, that's it. That's his outreach, and it's simply...awful. It's weak. It's toothless. And I just don't get it.
I don't get it because Biden's policies will increase corporate taxes as well as individual and capital gains rates, plus the amount we owe for FICA taxes. He also supports phasing out the pass-through deduction from the 2017 tax reform act that's enjoyed by many small businesses owners once they reach that "wealthy" status - those making more than $400,000 per year. "I'm not trying to punish anybody," he said at a campaign stop in Charlotte. "It's time everybody started to pay their fair share." Is that what you say when so many small businesses are suffering right now?
To add further salt to the wounds, Biden is pushing for a $15 an hour national minimum wage, an increase for overtime pay, more restrictions on independent contractors and a return of the regulatory-laden ObamaCare rules. He's supported by unions, environmental and labor groups who are arguing for more restrictions on employer practices. All of these things will be more costly for small businesses if he's elected and certainly give many of these 30 million voters a big pause for concern.
So, where's the meat? Where are the specific proposals that will help small businesses? What legislation will he put forth? What government programs will he create?
We got none of that. But we do have a small business "advisory" council and ice cream. Yay! Oh, and we also get complaints about President Trump for not giving out more aid to small businesses, specifically another round of the Paycheck Protection Program. I've got many complaints about President Trump, but this one isn't on him. It's on Congress.
Meanwhile, Trump pushes for fewer regulations, lower taxes and a return to the booming markets, free trade and lower unemployment rates that we enjoyed before COVID. And once a vaccine is out and things get back to normal, we may very well see that. Unfortunately, and under a second Trump term, we'll also see the repugnant tweets, the manufactured chaos, the fueling of violence and the continued divisiveness.
Small business owners will have a big decision to make this November. Do we vote for someone - the president - whose business policies will obviously make us more money in the years to come even though he's impetuous, immature and potentially corrupt? Or do we vote for a candidate - Joe Biden - who will bring more normalcy and respectability to the White House despite the fact that his biggest contribution to helping small business owners during this unprecedented downturn is to form a committee?
Gene Marks is founder of The Marks Group, a small-business consulting firm. He frequently appears on CNBC, Fox Business and MSNBC.
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National Voter Registration Day: Making sure your vote counts
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By Deborah Sweeney
Amid the C0vid-19 pandemic, small business confidence is slowly rising in the third quarter of 2020.
According to the CNBC | SurveyMonkey Small Business Survey, the Confidence Index Score for small businesses was 49 in Q2 of 2020; it has since risen to 53 for Q3. This uptick, however slight it may be, signifies small businesses still have a difficult road ahead in recovering from the Covid-19 pandemic.
One positive note from the survey is that 36% of businesses state that current operating conditions are “good” in Q3. This is a significant rise from Q2, which was at 18%, and a sign that there is a light at the end of the tunnel for existing and new businesses alike.
Your company’s unique name, logo, symbols, and designs all need legal protection.© Chaosamran_Studio- Adobe Stock
What if you are starting a business during this time? As entrepreneurs incorporate and form LLCs, they will be coming up with unique names, phrases, symbols, logos, and designs for their startups. They will need protections, also known as trademarks, for their businesses. Registering trademarks helps set up a business for success.
Why is it necessary to register a trademark? What is it about trademarks that make these protections so valuable for businesses? Let’s take a closer look at the value of a trademark and what you need to know before you file a trademark application.Trademarks are a symbol of your identity
Trademarks are a symbol of the identity of your business. The original names, phrases, symbols, logos, and designs that you create for your business help to identify your products and services. Consumers will be able to distinguish your offerings from that of competing businesses largely thanks to memorable trademarks.
If you are new to starting a small business, you may confuse trademarks with the concept of copyrights. It is true that both are forms of intellectual property protection. However, copyrights do not protect names, slogans, or logos. Instead, a copyright helps protect an original work of authorship. This applies to literary works like fiction novels, performing arts like music compositions and lyrics, virtual arts like artwork and illustrations, photographs, motion pictures, and architectural works. The creator of these works is considered to be its author and may file for copyright registration.Trademarks help build the reputations of brands
The visibility of a trademark allows customers to spot and recognize your brand in a crowded marketplace. Consider a trademark like the iconic McDonald’s golden arches logo. When you see it, even at a distance, you instantly know you are not far from delicious cheeseburgers and french fries.
Recognizable trademarks also help to build a brand’s reputation. An effective trademark can influence the buying decisions of consumers and bring to mind positive, powerful messages about your brand. In the example of the golden arches, that trademark is associated with the fast food restaurant. The menu at McDonald’s is available to consumers globally. It is so visible that, to date, the company advertises “over 99 billion served” in its messaging.Trademark registration provides its owners with exclusive rights
Until a trademark has been registered at the federal level, it is possible that a competing business may claim it for their own use. The trouble with an unregistered trademark is twofold. As a business owner, you run the risk of having your original mark infringed upon by another company. There is no way to argue that the mark is yours because it hasn’t been registered.
Additionally, it is entirely possible that the trademark you created may already be in existence. The mark you created and believe is unique may already be registered or pending registration by a different company. You could be accidentally plagiarizing their mark and not realize it!
The best way to nip both these problems in the bud is to register your trademark as soon as possible. Let’s take a look at what you need to do to get started with this process.
Other Articles From AllBusiness.com:How do I register for a trademark?
Ideally, you should file for trademark registration as soon as possible. However, prior to filing a trademark application, you’ll need to verify that your mark is indeed unique. You can easily do this by completing a name search.
What’s a name search? A name search allows you to search through existing and pending trademark applications. The TESS database that's available through the United States Patent and Trademark Office (USPTO) is a great place to start. Conducting a thorough search helps determine that your trademark is unique and available to register and use. If the mark is not available, you will need to brainstorm other trademark options and conduct a name search to determine if they are unique.What if my trademark is available?
What happens if it turns out your trademark is available? It’s time to start the filing process to register the trademark. Once you have conducted a name search, you may fill out a trademark application to protect your trademark. You may file with the help of a third-party trademark filing service or file on your own with the help of your Secretary of State. Remember to pay the filing fee associated with the application.
After submitting your application, you may consider using a trademark watch service. This service, provided by a third-party filing company, helps to monitor the trademark for potential infringement. It also monitors your existing application, allowing you to know first when your trademark has been approved—and that you have exclusive rights to the mark as its owner.
Deborah Sweeney is the CEO of MyCorporation.com. MyCorporation is a leader in online legal filing services for entrepreneurs and businesses, providing startup bundles that include corporation and LLC formation, registered agent, DBA, and trademark & copyright filing services. MyCorporation does all the work, making the business formation and maintenance quick and painless, so business owners can focus on what they do best. Follow her on Twitter @deborahsweeney and @mycorporation. See all posts by Deborah Sweeney.
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This article was originally published on AllBusiness.