Terry H. Schwadron
Oct. 15, 2020
How do you consider a Supreme Court nominee for confirmation when the votes already are in? For that matter, how do you expect to build public faith in a significant turn to the right for the Court? Does the Supreme Court have any responsibility for the effects of its decisions?
If you’re a conservative Republican, the agenda is simply to jam the nomination of Amy Coney Barrett as a lifelong justice, and damn the torpedoes. If you’ve got the votes, use them.
If you’re a Democrat, apparently you talk to public cameras rather than to the nominee, with a variety of arguments from poor timing and the hypocrisy of having resisted consideration of Merrick Garland, to the pending expected Court case that could overturn Obamacare — as the Senate itself could not do.
The sides, and they are two sides in this vote, are purely about power — and politics. The implicit message of the dqy: Whether you love or hate what this nominee will do to the balance on the Supreme Court, vote for me — turning too many question periods into long campaign speeches.
From the opening bell, when chairman Lindsey O. Graham, R-SC, launched into a preemptory speech about health care alternatives, the real audience for these hearings seems the voting public, not the predetermined outcome for confirmation of a woman who believes that “original” text of laws settles all.
Barrett was not going to bite on substantive questions about abortion or health care or even recusal in any elections matter. “Judges cannot just wake up one day and say, ‘I have an agenda — I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world,” Barrett said.
It’s just that her record reflects otherwise.
Listening to the questions was a mirror of values choices facing the nation. It was a relatively quiet, respectful session, in which Barrett’s qualifications and judicial temperament were never at issue — just why we were considering her as 10 million votes have been cast for a president who should be doing the nominating.
Senators on both sides were hardly unaware of Barrett’s extreme conservative lean, despite Barrett’s consistent responses that she could not say how she would judge cases or precedents about abortion, health, guns. Barrett was straightforward in saying that there is room in precedent-setting decisions for questions about rules governing those areas and others. After all, that’s why the Supreme Court has cases, she said.
Republicans’ mostly fawning questions were filled with hot air about judicial independence from a nominee clearly experienced in the law and the role of a judge. But their promised supporting votes were all about a specific agenda that will make itself known through judicial opinions that will take away abortion, throw national health care policy into a total mess in the midst of a pandemic, that will work against worker rights, voting rights and for the right to pollute and to insist on religious objection of individuals and businesses over gender choice.
From Democrats, it was a frustrating slog through attempts to pin Barrett’s views. She, in turn, quoted past confirmation nominees successfully fended off such attempts as hypothetical or for independence for pending cases.
Only rare moments allowed us to see that her writings show that gun rights for felons are more important than voting rights, for example. Or that signing a public pledge as a citizen and churchgoer against abortion should not be a promise of her eventual vote.
“This is probably not about persuading each other unless something really dramatic happens,” chairman Graham noted. “All the Republicans will vote yes; all the Democrats will vote no.”
Sen. Dianne Feinstein, D-CA, and Sen. Amy Klobuchar, D-MN, typified the frustration by noting that their votes for confirmation were dependent on knowing what the judge would do on the bench. For those who hung in all day, Sen. Kamala Harris’ virtual cross-examination came across as a particularly strong closer.
Ironically, the most honest reaction may have been from Donald Trump, who asked by tweet why Democrats were given any time at all to make statements. Hmm. He’s no constitutional originalist about the role of the Senate.
Justice seems not to be a question for a Justice Barrett, just process.
Dealing with Futility
It is clear that Democrats did nothing to alter any perception that Barrett is qualified, or that the majority has the votes for confirmation, just that the timing — and the face of a Trump nomination on what may be his last days — stinks.
Barrett was adept at judicial evasion about her beliefs and decisions interlace. Indeed, among the few cracks were in responses to Sen. Dick Durbin, D-IL, as a mother of two Black children, discussing the George Floyd video and the existence of racism in the country, though there was little to gauge judicial work beyond empathy from a mom of two Black children.
Sen. Sheldon Whitehouse, D-RI, provided a singular, spirited moment of dismay for the entire process, outlining the role that he sees dark money playing in the selection and campaigning for Court nomination and towards filing of briefs for decisions that favor conservative or big business causes
Overall, there is something weird about not really allowing questions about a confirmation process that will fundamentally cement a conservative lean in Court decisions for decades.
If the Senate is simply there to approve which law school the nominee attended, there’s not much to this whole role of consent for a lifetime appointment that can affect the lives of all Americans. Indeed, Trump’s nominees to federal judicial openings have run afoul of even that basic vetting — there have been a dozen or more nominees with little to no judicial experience, for example.
The questions at these hearings — and the blunted answers — are a frustrating rejection of any intelligent discussion about American values or whether judicial nominees should be taking any account of the effects of judicial rulings.
If this has become only a question of political power, there’s not much point to attempts at substantive discussion. Bring on the vote.