Amy Coney Barrett Nomination Coming Today

Multiple reports have the Notre Dame graduate replacing Ruth Bader Ginsburg.

Barring a major surprise, President Trump is going to nominate the woman everyone expected him to nominate to fill the vacancy created by the death of the Supreme Court’s liberal icon.

CNN (“Trump intends to nominate Amy Coney Barrett for Supreme Court“):

President Donald Trump intends to choose Amy Coney Barrett to be the new Supreme Court justice, according to multiple senior Republican sources with knowledge of the process.

In conversations with some senior Republican allies on the Hill, the White House is indicating that Barrett, a federal appellate judge and Notre Dame law professor, is the intended nominee, multiple sources said.

All sources cautioned that until it is announced by the President, there is always the possibility that Trump makes a last-minute change but the expectation is Barrett is the choice. He is scheduled to make the announcement on Saturday afternoon.

A former law clerk to the late right-wing beacon Justice Antonin Scalia, Barrett would tilt the balance of power on the court further to the right, possibly ahead of a consequential case on health care to be argued the week after Election Day. If her Senate confirmation is successful before the November election, the appointment would mark Trump’s third Supreme Court pick in one presidential term, cementing a conservative stronghold in the court for a generation.

She has been the leading choice throughout the week, since Justice Ruth Bader Ginsburg died. She is the only potential nominee known to have met with the President in person, according to two of the sources. One source said Trump was familiar with Barrett already and he met with her since she was a top contender the last time there was a Supreme Court vacancy, when the President chose Justice Brett Kavanaugh instead.

Barrett was seen at her South Bend, Indiana, home on Friday. It was not clear if Barrett had been told she is the choice. Often that is done as late as possible to maintain secrecy around the announcement.

“The machinery is in motion,” one of the sources said. In previous nomination announcements, the White House had multiple rollouts planned in case the President made a last-minute decision to switch to another candidate. But one source said it would be surprising if there were a change since allies are already being told.

The White House declined to comment.

“She was the plan all along. She’s the most distinguished and qualified by traditional measures. She has the strongest support among the legal conservatives who have dedicated their lives to the court. She will contribute most to the court’s jurisprudence in the years and decades to come,” according to a former senior administration official familiar with the process.

NYT (“Trump Selects Amy Coney Barrett to Fill Ginsburg’s Seat on the Supreme Court“) adds:

Mr. Trump plans to announce on Saturday that she is his choice, according to six people close to the process who asked not to be identified disclosing the decision in advance. As they often do, aides cautioned that Mr. Trump sometimes upends his own plans.

But he is not known to have interviewed any other candidates and came away from two days of meetings with Judge Barrett this week impressed with a jurist he was told would be a female Antonin Scalia, referring to the justice she once clerked for. On Friday night, Judge Barrett was photographed getting out of her car outside her home in South Bend, Ind.

“I haven’t said it was her, but she is outstanding,” Mr. Trump told reporters who asked about Judge Barrett’s imminent nomination at Joint Base Andrews outside Washington after CNN and other news outlets reported on his choice.

The president’s political advisers hope the selection will energize his conservative political base in the thick of an election campaign in which he has for months been trailing former Vice President Joseph R. Biden Jr., his Democratic challenger. But it could also rouse liberal voters afraid that her confirmation could spell the end of Roe v. Wade, the decision legalizing abortion, as well as other rulings popular with the political left and center.

The nomination will kick off an extraordinary scramble by Senate Republicans to confirm her for the court in the 38 days before the election on Nov. 3, a scenario unlike any in American history. While other justices have been approved in presidential election years, none has been voted on after July. Four years ago, Senate Republicans refused to even consider President Barack Obama’s nomination to replace Justice Scalia with Judge Merrick B. Garland, announced 237 days before Election Day, on the grounds that it should be left to whoever was chosen as the next president.

In picking Judge Barrett, a conservative and a hero to the anti-abortion movement, Mr. Trump could hardly have found a more polar opposite to Justice Ginsburg, a pioneering champion of women’s rights and leader of the liberal wing of the court. The appointment would shift the center of gravity on the bench considerably to the right, giving conservatives six of the nine seats and potentially insulating them even against defections by Chief Justice John G. Roberts Jr., who on a handful of occasions has sided with liberal justices.

That this is “a scenario unlike any in American history” is almost certainly true, given the sheer polarization of our political system at the moment and the whole Merrick Garland mess. Still, “While other justices have been approved in presidential election years, none has been voted on after July” is a meaningless statistic.

This is only the tenth vacancy during an election year since the Supreme Court stabilized at nine Justices and only one of those vacancies were created late in the year—with Justice Sherman Minton’s retirement for health reasons on October 15, 1956. President Eisenhower replaced him with William Brennan that very day via recess appointment.

Even aside from the Garland precedent, Barrett’s choice will naturally be controversial. Not only is she extremely ideological but she represents a massive swing, replacing the most liberal Justice on the Court with potentially its most conservative.

The Nation’s Elie Mystal contends that those who point to her religious faith (she’s a member of a sect called the People of Praise) are missing the boat. While she has been refreshingly open about the degree to which her faith guides her rulings, rather than pretending otherwise, Mystal argues that she’s ultimately just a conservative ideologue.

He points to a law review article* in which she argues that faithful Catholic judges should recuse themselves from death penalty cases, since the teachings of the Church make it clear that imposing it is immoral. He finds it inconsistent that she won’t also recuse himself from abortion cases, given the Church’s strong teachings there. But I see no inconsistency: in one case, the faith is in conflict with her duty to the law; in the other, she has the power to put her faith into practice.

Further, while I would prefer someone less dogmatic, she is by all accounts brilliant and respected by those who have worked with her. Indeed,

When she was nominated to be a judge on the 7th Circuit, every law clerk who had served with her at the Supreme Court, including Justice Ruth Bader Ginsburg’s clerks, supported her nomination. “This view is unanimous,” they said: She “is a woman of remarkable intellect and character.”

Given a Republican majority in the Senate and the removal of the filibuster, there’s no reason to think her views will hamper her confirmation. And, given that she was confirmed 55-43 with three Democrats (Joe Donnelly, Tim Kaine, and Joe Manchin) voting yes to the Court of Appeals just three years ago—in a Senate with two more Democrats**—there’s no reason she shouldn’t sail through before Election Day.

UPDATE: See her colleague O. Carter Snead‘s WaPo op-ed “I’ve known Amy Coney Barrett for 15 years. Liberals have nothing to fear.,” published just this morning, for further testimony to her decency and an argument she’s not nearly as ideological as most think.

_____________

*Albeit, one written with one of her professors while a law student.

**Granted, one of the Democrats who lost their seat in 2018 was Joe Donnelly, so that’s likely a wash.

FILED UNDER: Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Michael Reynolds says:

    Oh, FFS, how many times are we going to fall for the ‘…everyone says she/he is brilliant!’ bullshit? Says who she’s brilliant? She’s part of a fanatical religious cult that refers to women as ‘handmaids’ but she’s brilliant, is she? She’s a nut.

    For four years we’ve seen a long line of ‘brilliant’ and ‘principled’ people who spent their time in office performing oral colonoscopies on the fascist buffoon who hired them. Brilliant!

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  2. CSK says:

    The announcement will be made at 5 p.m. today, so clearly Trump–as is his wont–wishes to drag out the suspense as long as possible.

    And it wouldn’t surprise me if he pulls some bizarre last-minute switcheroo.

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  3. Jon says:

    I think Nancy Pelosi summed things up pretty well …

    If Republicans had rushed to save lives as quickly as they’re rushing to ram through a Supreme Court nominee, our country would be in a better place.

    And I cannot agree enough with @Michael Reynolds above. I’m about tired of this “oh but give them a chance!” bullshit. Nobody would have been put forward as a nominee, nor nominated by this administration, if they had not already agreed to behave in exactly the way Republicans demand a judge behave.

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  4. Sleeping Dog says:

    To start the day on a positive note…

    It is encouraging that she neither graduated from an Ivy League undergrad program, nor an Ivy League law school.

    That’s about as positive as I can be.

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  5. Jen says:

    Smart, but bonkers–ugh. This doesn’t make me feel better.

    I’m still angry about Garland. Had McConnell been a person of any character at all, we wouldn’t be looking at a generational shift to a conservative and enormously Catholic court.

    I’m very uneasy about people in public service being so overt about their faith; I am a believer in the separation of church and state and I find it weird and inappropriate that religion could be guiding anyone’s interpretation of the law, which should be guided by reason.

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  6. wr says:

    “Further, while I would prefer someone less dogmatic, she is by all accounts brilliant and respected by those who have worked with her.”

    Gosh, isn’t this exactly what all the nation’s Serious Legal Minds said about Bill Barr? “Oh, you don’t have to worry that he’ll be Trump’s corrupt flunky because he’s a Brilliant and Respected By Those Who Are In The Club.”

    I don’t care if she’s Brilliant and Respected if she plans to use her Brilliance and Respect to turn the Court into the Spanish Inquisition.

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  7. wr says:

    Why is that poor Black teenage girl in Alabama crying? Sure, she’s just been sentenced to 50 years in prison for having an abortion — but doesn’t she realize that the woman who empowered the state to do this to her is Brilliant and Respected?

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  8. gVOR08 says:

    Remember back when Republicans said JFK was unfit for the presidency because he might follow the dictates of the Pope. Now Barret has been selected because she will. And we’ll be told it’s improper to even ask about her beliefs.

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  9. gVOR08 says:

    @gVOR08: There’s supposed to be a question mark after that first sentence, but no Edit function. iOS.

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  10. Northerner says:

    @Michael Reynolds:

    You can be not only brilliant in your field, but be a complete genius in it, without having common sense about politics or your personal life. I’m kind of surprised that a successful writer like yourself would think otherwise, given the long list of genius writers who made horrible life decisions. (Same for artists, musicians, scientists, engineers etc). I suspect she in fact is very intelligent and brilliant at law.

    On the other hand, brilliant at law but lacking common sense about politics and personal life is not something you want in a judge.

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  11. Pylon says:

    A judge for only 3 years doesn’t cut it for me, no matter what the academic credentials are. It’s such a different role.

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  12. Michael Reynolds says:

    @Northerner:
    Many people become well trained in their fields. That doesn’t impress me as brilliance. Any reasonably bright drone can get through law school. Impressing your own law clerks, or the leering old men who hired you to flatter themselves, isn’t evidence of anything.

    I set the bar a bit higher. A brilliant person can see beyond themselves. A brilliant person has perspective.

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  13. JohnMcC says:

    @gVOR08: Catholics on the SC: Kennedy, Thomas, Alito, Sotomayer, Roberts (and Gorsuch was raised Catholic but now is Episcopalian). If Biden is elected/inauguarated and if Pelosi remains Speaker we’ll have virtually a complete government of RCs.

    When I was a boy the ‘Roman Church’ was definitively identified as ‘the Whore of Babylon’ in Bible-believing circles. Abortion and Opus Dei made strange bedfellows.

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  14. Northerner says:

    @Michael Reynolds:

    I think you’re redefining brilliant. For instance, Newton and Mozart were both fairly flawed and reportedly selfish individuals who changed the course of science and music respectively. Newton is generally considered to be along with Einstein the greatest physicist ever, and almost every aspect of modern technology is based on his discoveries. Mozart is always listed as one of the top handful of musicians. But by your definition neither would be called brilliant. I don’t think many would agree with that use of the word.

    Genius especially (and I’m not saying she’s anything like that) has a way of being very self-enclosed in its perspective.

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  15. Jen says:

    @JohnMcC: Kennedy is no longer on the Court, but his replacement (Kavenaugh) is also Catholic.

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  16. Just nutha ignint cracker says:

    Still, “While other justices have been approved in presidential election years, none has been voted on after July” is a meaningless statistic.

    Which while probably accurate, carries absolutely no weight at all coming from a person who’s predisposed to approving the pick. The choice is an abuse of power, without dignity, from hypocrites, but since it’s a choice of which you approve, it’s all good and the objections are unwarranted.

    Remember this when you object to the appointment of new justices to supervise newly formed circuits–that have been *unnecessarily created* to excuse an unconstitutional court packing scheme–if/when that happens in the future.

    You lost. Get over it.

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  17. gVOR08 says:

    @JohnMcC:

    Catholics on the SC: Kennedy, Thomas, Alito, Sotomayer, Roberts (and Gorsuch was raised Catholic but now is Episcopalian).

    Yeah. In the last few days I see conservative pundits reminding us of the Constitutional prohibition of a religious test for office, by which they mean it would be improper to ask about or discuss her beliefs. And yet Catholicism seems to have somehow become a bar Justices have to clear.

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  18. James Joyner says:

    @Pylon:

    A judge for only 3 years doesn’t cut it for me, no matter what the academic credentials are. It’s such a different role.

    Honestly, this doesn’t bother me. It’s only been recently that the primary path to the Supreme Court are SCOTUS clerkships and a tenure on a Court of Appeals. We’ve had numerous well-regarded Justices, including Chief Justices, with no prior judicial experience in the modern era. Elena Kagan was well-qualified but had never been a judge.

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  19. Just nutha ignint cracker says:

    @Jen: As I person who tries (and mostly fails) to live his life according to the dictates of his faith, I find myself in complete agreement, and further find myself noting that a person whose faith really dictates their life will not impose that faith on others who do not share it. It’s problematical I’ll admit, but “love the Lord your God with all your heart and soul” and “love your neighbor as yourself” sometime pull in opposite directions–and must be allowed to.

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  20. Jay L Gischer says:

    The fact that she didn’t go to either Harvard or Yale Law School is a big plus for me. I am extremely tired of the lock they have. There are other good law schools producing other good jurists. Her transparency on how her faith interacts with the law also is a positive. Maybe she will recuse herself on an abortion case, has she said she won’t?

    If Merrick Garland had been voted on at least, I would probably not be too bothered by her, though there are definitely negatives.

    Also, Nancy Pelosi is brilliant.

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  21. Gustopher says:

    Just to hop on the brilliant and respected bandwagon… the only people nastier and empathetic than stupid people are brilliant people.

    I know empathy is considered a sin in conservative circles, but when the job is literally balancing the conflicting rights of different parties, some empathy is required.

    Also, too, Hitler was a brilliant and respected motivational speaker.

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  22. Just nutha ignint cracker says:

    @JohnMcC: I hadn’t paid any attention to that, having left the fundie community years ago. It sure is a good thing that evangelical conservatives are Republican these days, although election of Biden may cause an anti-Papist resurgence.

    Biden comes across as pretty secular, though. Who knows? Conservatism is whatever liberals don’t want, updated daily.

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  23. Jon says:

    See her colleague O. Carter Snead‘s WaPo op-ed “I’ve known Amy Coney Barrett for 15 years. Liberals have nothing to fear.,” published just this morning, for further testimony to her decency and an argument she’s not nearly as ideological as most think.

    Yeah, color me unimpressed. The same thing was said about Bill Barr during his nomination/confirmation process. And John Roberts.

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  24. Just nutha ignint cracker says:

    @Jay L Gischer:

    Maybe she will recuse herself on an abortion case, has she said she won’t? If you wish in one hand and sh spit in the other, I can predict which had will fill up first with uncanny accuracy. Just sayin’.

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  25. I agree she is qualified.

    I am sure if nominated, she will be confirmed.

    But the problem isn’t her cv nor is, per se, that the GOP has the votes to install her. The problem is that her installation will be yet another result of minority rule.

    But to wish for unicorns for a moment, it would be so nice if a given president had a specific number of slots per terms (due to staggered, fixed terms that expired on a cycle) and that the court could evolve along those lines rather than because of the happenstance of death.

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  26. Just nutha ignint cracker says:

    @Just nutha ignint cracker: Rats! Edit didn’t come up. 🙁 There should be an end block quote string after “won’t?” Curses!! :-X

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  27. Michael Reynolds says:

    @Northerner:
    Mozart created. Einstein created. Their moral caliber isn’t the point, they invented things, techniques, ideas that did not exist before. The act of creation and discovery sets them apart. And neither was confined by their field, they transcended their fields, they re-invented their fields. Brilliant!

    Getting through law school and working your way up the ladder? Meh. I used to work for a large, elite DC law firm. To be hired as an associate at Wilmer Hale you had to be in the top 1% of the top 1% of law schools. Were the lawyers intelligent? Yes. Hard working? Absolutely. But brilliant? I don’t know, maybe a couple were, but not 175 lawyers.

    I don’t dismiss formal education, but I’ve spent 30 years with my 10th grade education and my GED blowing past thousands, hell tens of thousands of competitors with impressive degrees, in a field where the odds of success are far longer than the odds of getting into even Harvard Law, let alone Crotchrot State Law School. Master of Fine Arts? Juris Doctor? PhD? Whatever, show me your work not your framed diploma.

    To me brilliant doesn’t mean a respectable IQ and a degree. Show me creativity, originality, discovery, an intellectual breakthrough. Newton was brilliant. Shakespeare was brilliant. Linnaeus was brilliant. Bismarck was brilliant. Jimi Hendrix. (I could go on). This woman is just intelligent.

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  28. Bill says:

    @CSK:

    And it wouldn’t surprise me if he pulls some bizarre last-minute switcheroo.

    Trump will then scream fake news.

    The switcheroo could also be planned well ahead of this news leaks (Through deliberate fake leaks maybe?). The mainstream media in their hurry to have the news ahead of the event, have IMHO foolishly set themselves up to be portrayed as very dumb.

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  29. JohnMcC says:

    @Jen: Well shucks! And thank you.

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  30. wr says:

    @Michael Reynolds: “I don’t dismiss formal education, but I’ve spent 30 years with my 10th grade education and my GED blowing past thousands, hell tens of thousands of competitors with impressive degrees”

    Wait! You didn’t graduate high school? Why haven’t you ever mentioned this before? It seems like something that would have come up, but apparently not. Next you’ll start telling us you had a brief career as a low-level criminal and were wanted by the cops!

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  31. Northerner says:

    @Michael Reynolds:

    Okay, the distinction between intelligent and brilliant (creative) makes more sense. My bad, I didn’t originally get that that was what you meant.

    And I agree that character matters less when someone’s creativity adds to the world — one of the key figures in the development of the transistor (the technology in all of our computers etc) was a eugenicist, and no doubt sexist and racist by today’s standards. I’m still going to use computers. And listen to Mozart’s music. And read Hemmingway.

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  32. Pylon says:

    @James Joyner: It bothers me. There are obviously exceptions but IMO judges generally need high level litigation experience, both as lawyers and judges (and Kagan had a lot of experience before SCOTUS). And she was nominated to be a judge in 1999 and got screwed over by Hatch.

    Clerking doesn’t impress me much though. Partly because I was a clerk at the SCC.

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  33. keef says:

    @Michael Reynolds:

    You look like a guy in need of Depends.

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  34. keef says:

    @Michael Reynolds:

    “Show me creativity, originality, discovery, an intellectual breakthrough.”

    RBG was a pedestrian SC judge. Sorry. She was.

    I’m going to go out on a limb. You will vote Biden. You would vote Schumer, AOC, Pelosi if your residence allowed. How do they meet your stated standard?

    What is your point, other than just to rant? Are you establishing a new required standard for judges or pols? Barret is far better than most. And Biden, Harris? Are you serious? Please tell me you are not.

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  35. Michael Reynolds says:

    @wr:
    Who are you calling ‘low level’? Master Criminal with the all-girl gang is what the judge called me, thank you very much! (Not exactly accurate, but I’m using it anyway. MC WAGG will be my name when I get into creating rap.)

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  36. Michael Reynolds says:

    @keef:

    I’m going to go out on a limb. You will vote Biden. You would vote Schumer, AOC, Pelosi if your residence allowed. How do they meet your stated standard?

    Dude, where did I say someone had to be brilliant to get my vote? Or even that I would like someone brilliant to run the government? Pretty sure Picasso would be a lousy congressperson, though he could draw some.

    I wouldn’t call a politician brilliant unless they could repeat ‘Person…woman…man…camera…TV’, plus drink a glass of water with just one hand.

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  37. @Northerner:
    I’ve been in and out of the debate on death of the author and its relationship to social media. My position is that you’re a fool if you reject art or science created by an asshole. Mad at JK Rowling? OK, me too, but that doesn’t mean I should wash Hermione out of my brain. That’s virtue signaling taken to the point of self-harm.

    Every time a rocket goes up it’s thanks in part to some Nazi m’fers.

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  38. Jon says:

    @Michael Reynolds:

    Every time a rocket goes up it’s thanks in part to some Nazi m’fers.

    Except, of course, there is a fundamental difference between a rocket and a sonnet. And to continue the J.K. Rowling example, she is actively attacking trans people and promoting bad science *now* while doing so. Folks thinking about buying her books should not be called a fool if they take that in to consideration before contributing to her wealth and thus sustaining her already large platform.

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  39. CSK says:

    No last-minute switcheroo, as I thought just might happen. It’s Barrett.

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  40. Gustopher says:

    @Michael Reynolds:

    Mad at JK Rowling? OK, me too, but that doesn’t mean I should wash Hermione out of my brain.

    Are you going to read her new book, where she poses as a male author and then writes about a male serial killed who poses as a woman to get close to his victims?

    I do wonder whether someone rereading her earlier wizard related works would see her TERFer themes popping out from behind the corners. I suspect it’s a new thing for her, like Debby having a massive schlong or wizards just shitting themselves and using magic to make it go away.

    The author wasn’t a raging transphobic bigot, she became one after her major works were done. No need to separate the author from the to enjoy it.

    On Nazi science though… they didn’t create art, they discovered science. There may be all sorts of similar creative patterns going into the process, but the result is as different as can be.

    Art speaks to emotions and tries to do something beautifully. It’s a dialog between the artist and the viewer. It can require a suspension of disbelief, which is harder if you know the creator was a Nazi.

    Knowledge is just there, and if the first person to discover it was a Nazi, that knowledge is still just there. You can do bad things with it, and give it all sorts of additional implications, but that doesn’t change what it is at heart. That missile is going to travel on this curve whether the guy who formulated the equation hated Jews or not.

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  41. Gustopher says:

    @Gustopher:

    Debby having a massive schlong

    Dobby not Debby. We don’t know anything about Debby’s schlong.

    I suspect if there was a Debby in the Harry Potter books, Rowling would not have given her a schlong, massive or otherwise.

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  42. Michael Reynolds says:

    @Jon:
    I know all about Rowling. We’re in the same business (in the sense that Wal-Mart is in the same business as a bodega selling bootleg cigarettes and Twinkies) and I’ve challenged her on Twitter. Surprisingly, she did not confess error and flee, weeping. My eldest is trans. I’ve written a major trans character. And to our surprise (and pleasure) some trans kids see one of our earlier characters inspirational. So, yeah, we are on different sides, JK and me.

    I’d differentiate between continuing to give her money and devaluing your own experience of her work. I never joined the Harry Cult myself. She’s a good writer, does character well, does granular world-building as well as you can on the fly. Not great at plot. A bit derivative. Has endurance, not a lot of versatility. So turns out IRL she’s a TERF, and going out of her way to pick on people she has no right picking on. Punching down. So don’t give her any more money, but if you loved Harry, go on loving Harry. That’s your property, not hers.

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  43. @Gustopher:
    Dude, I only read the first Harry. YA stuff falls into the category of ‘work,’ so I rarely engage. The only time I read YA is when some editor bullies me into blurbing someone’s book. I’m writing screenplays now, learning the tricks. I’m competent now, and I do good story, but long way to go to get good. I might die of old age first.

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  44. Northerner says:

    @Gustopher:

    Knowledge is just there, and if the first person to discover it was a Nazi, that knowledge is still just there. You can do bad things with it, and give it all sorts of additional implications, but that doesn’t change what it is at heart. That missile is going to travel on this curve whether the guy who formulated the equation hated Jews or not.

    Actually there are a lot of people (mainly social scientists and philosophers rather than scientists) who say the person who discovered the science will strongly affect what is discovered (ie that it can be racist and sexist). Some even say math, which is a formal system, can be racist and sexist — I’m not sure how that could be (its a formal system) but they seem fairly convinced and many of them are professors so I gather their views must have at least underpinning.

    This is even more the case with technology. Science might just be out there, but the application of science into technology is as arbitrary and creative as the application of language into literature or the application of colors and shapes into paintings. Newton’s laws (or Einstein’s or perhaps String theory or Supersymmetry etc) might well be inherent in the universe but there was nothing inherent in them that made rockets inevitable, anymore than the structure of English language made Shakespeare’s sonnets inevitable. Everything is obvious after someone else creates it.

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