Report: J. Campbell Barker

Barker is a conservative ideologue who has devoted the last several years to restricting voting rights, LGBT equality, immigrant rights, reproductive freedom, environmental protection, and fairness for criminal defendants. 


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From The Leadership Conference on Civil and Human Rights:


Mr. Barker, 37, is a young, conservative ideologue who has devoted the last several years to restricting voting rights, LGBT equality, immigrant rights, reproductive freedom, environmental protection, and fairness for criminal defendants.  Mr. Barker does not possess the neutrality and fair-mindedness necessary to serve in a lifetime position as a federal judge.


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Sought to Undermine LGBT Rights:  Mr. Barker wrote amicus briefs for the State of Texas in which he argued that business owners should have the right, based on their religious beliefs, to deny wedding-related services to LGBT couples.  In an amicus brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Mr. Barker wrote: “Public-accommodation concerns of past eras are not present here; customized pieces of art are not public accommodations (like restaurants and hotels), the artist plainly did not act out of invidious discrimination, and complainants had immediate access to other artists.”[3]  Although the Supreme Court recently ruled in favor of the baker in this case, it was a narrow ruling, and the Court rejected Mr. Barker’s sweeping argument about public accommodation laws.  Mr. Barker made similar arguments in an amicus brief in Arlene’s Flowers, Inc. v. Washington, in which he defended the right of a florist not to provide flowers for a same-sex wedding.[4]  The Supreme Court has not yet decided whether to grant certiorari in that case.


Hostile to Dreamers and Immigrant Rights:  Mr. Barker has been at the center of right-wing legal challenges to the fair and just treatment of immigrants: (1) he has challenged the legality of Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”); (2) he has supported President Trump’s discriminatory Muslim bans; and (3) he has defended legislation that banned so-called “sanctuary cities.”


In case after case, Mr. Barker has sought to invalidate the DACA and DAPA programs.  In an amicus brief filed with the Supreme Court challenging DACA, in Arizona v. Arizona Dream Act Coalition, Mr. Barker wrote: “DACA’s conferral of lawful presence violates Congress’s extensive statutory framework defining when aliens are authorized to be present in the country.”[5]  In U.S. Department of Homeland Security v. Regents of the University of California, Mr. Barker wrote an amicus brief and argued that “DACA was unlawful to begin with because it altered substantive rights yet was issued without the required APA notice-and-comment procedure.”  In In re United States, he boasted in an amicus brief that “Texas has consistently, clearly, and publicly explained for years how DACA is unlawful.”[6]  And in United States v. Texas, Mr. Barker sought to invalidate DAPA, asserting: “DAPA Is Contrary to Law and Violates the Constitution.”[7]  In addition to the disturbing arguments Mr. Barker advanced in these cases, it is troubling that, in response to written questions from Senator Hirono, Mr. Barker refused to commit to recusing himself in cases regarding DACA (other than those he has worked on).[8]


From the Alliance for Justice:


Since 2015, Barker has served as the Deputy Solicitor General for Texas. In that role, Barker has fought immigrant rights and efforts to protect the environment; defended Texas’s discriminatory voter ID laws and unconstitutional restrictions on women’s access to an abortion; and defended businesses that discriminate against LGBTQ Americans. In addition, both as a private attorney and in government, Barker challenged the Affordable Care Act.


Barker also worked on a highly controversial case in which Texas sought to retry a man with an intellectual disability who, after his murder conviction was overturned on appeal, spent 32 years in prison. And, Barker defended the state’s efforts to execute an African-American man based, in part, on a psychologist’s testimony that the defendant’s race made him statistically more likely to commit a violent crime.


From the Alliance for Justice:


As the Senate reviews the troubling positions Barker took as Deputy Solicitor General, it’s important to note that Senate Republicans have previously articulated their belief that legal work done in an official government capacity is entirely subject to scrutiny as part of the judicial nomination process. As former-Judiciary Committee Chairman Chuck Grassley said in opposing Caitlin Halligan, then Solicitor General of New York, to be a judge on the D.C. Circuit, “Some of my colleagues have argued that we should not consider this aspect of [Caitlin] Halligan’s record, because at the time she was working as the Solicitor General of New York. But, no one forced Ms. Halligan to approve and sign this brief.”


Likewise, as Sen. Ted Cruz stated in May 2018, opposing Mark Bennett’s nomination to the Ninth Circuit based on Bennett’s work as Hawaii Attorney General, “[Bennett’s] record as Attorney General of Hawaii, I believe, represents an advocacy position that is extreme and inconsistent with fidelity to law.”


The Alliance for Justice background report on J. Campbell Barker is here.

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