“I think it’s good for the country to have this,” said Sen. Lindsey Graham (R–S.C.) on Monday, the first day of Amy Coney Barrett’s Supreme Court confirmation hearing. “I doubt it’s going to change any minds in terms of how we vote. But I like the idea that a lifetime nominee to the Supreme Court can be challenged, can be tested, and can be understood by the public.”
As the fourth and final session came to a close Thursday, it was hard to believe that the Senate Judiciary Committee met those standards in the way Graham intended.
Barrett was challenged, yes, but mostly by Democrats who pushed her to stake out positions on political questions and feigned outrage when she responded that a good judge does not make decisions based on her own opinions: “My personal views don’t have anything to do with how I would decide cases,” she said. Even so, Barrett’s patience was almost certainly tested by a series of lectures from Democrats on her purported views and by monologues from Republicans on why Democrats are bad.
After a week of hearings, it’s very unlikely that the public understands Barrett better now than they did on Monday, considering that the committee spent more time posturing than probing the judge’s judicial philosophy. Grandstanding may be an effective political strategy, but it didn’t tell us anything useful or significant about Barrett, and it won’t affect the outcome of her confirmation vote.
The format for the hearings went something like this: Several Democrats began their allotted time slots, reserved for questioning the nominee, with complaints of procedural unfairness, invoking the COVID-19 pandemic and harkening back to the GOP’s unwillingness to confirm Merrick Garland to the Supreme Court during former President Barack Obama’s last year in office. The word “unprecedented” was thrown around a lot.
Senators would typically then transition into a speech—emphasis on speech, it was often question-free—about politically-charged issues to which they posit Barrett is a threat: the Affordable Care Act, abortion, same-sex marriage, immigration, and climate change. On day three, we actually heard some questions, but they usually pertained to how Barrett feels about hot-button political topics and corresponding legal precedents—questions that would be unprofessional and unwise to answer given that her feelings are irrelevant. Good jurists should cast aside personal policy preferences when scrutinizing the law, a point Barrett reminded the committee of repeatedly.
Here’s a representative exchange from Wednesday on Obergefell v. Hodges (2015), the Supreme Court ruling legalizing same-sex marriage nationwide:
Sen. Richard Blumenthal (D–Conn.): Think of how you would feel as a gay or lesbian American, to hear that you can’t answer whether the government can make it a crime for them to have that relationship. Whether the government can enable people who are happily married to continue that relationship. Think of how you would feel.
Barrett: Well, Senator, implying that I’m poised to say that I want to cast a vote to overrule Obergefell, and I assure you I don’t have any agenda. And I’m not even expressing a view in disagreement of Obergefell. You’re pushing me to try to violate the judicial canons of ethics and to offer advisory opinions, and I won’t do that.
Such was the common thread that tied the hearings together. Barrett’s judicial philosophy was mentioned on occasion—she considers herself an originalist—though not often in a way that would help the American public better understand that strain of legal thought. Sen. Amy Klobuchar (D–Minn.) mentioned it, for instance, in commenting on the parallels between Barrett and the late Justice Antonin Scalia, for whom Barrett clerked. But Klobuchar’s comments implied that a conservative or originalist approach somehow disqualifies Barrett for the position.
“You said you consider Justice Scalia one of the most conservative judges in our nation’s history as a mentor,” Klobuchar said Wednesday. “So, to me, these tracks lead us to one place. And that is that you will have the polar opposite judicial philosophy of Justice Ginsburg. And, to me, that would change the balance of this court, which is already 5-4 and known as very conservative when you look back through history to 6-3. 6-3. And that would have great repercussions for the American people.” It’s worth mentioning that, though Ruth Bader Ginsburg was an accomplished woman and jurist, she did not own her Supreme Court seat. The American people do.
Other senators preferred to actively campaign. Consider the speech Sen. Kamala Harris (D–Calif.) gave on Tuesday: “After President Trump was elected, Washington Republicans spent nearly a year trying to repeal the ACA [Affordable Care Act], but I will always remember the thousands of Americans from all over our country in all walks of life, who crowded into the halls of the United States Capitol to require that lawmakers see their faces and understand how they would be hurt if there was a repeal of the Affordable Care Act,” Harris said. “Together, with many of my colleagues, I joined civil rights and community leaders to speak to the thousands of people who gathered outside the Capitol, as they pleaded, as they begged with lawmakers to do the right thing.”
Graham wasn’t above this approach. In response to the complaints he heard on Monday, he opened Tuesday’s hearings with the opposite pitch: “From my point of view, Obamacare has been a disaster for the state of South Carolina,” he said. “All of you over there want to impose Obamacare on South Carolina. We don’t want it. We want something better. We want something different. You know what we want in South Carolina? South Carolina care, not Obamacare.”
The ACA was a popular topic throughout the hearings, and Democratic senators treated Barrett as if she were running to be a senator herself, with the power to make laws rather than evaluate their constitutionality. As Reason‘s Jacob Sullum writes, the idea that Barrett will overturn the ACA is based on fear, not fact. But such an approach is par for the course for the modern U.S. Congress, which has offloaded much of its legislative duties to the judiciary and the executive branch.
Nowhere was that mindset more relevant than in Wednesday’s discussions on climate change. Another exchange between Blumenthal and Barrett is instructive:
Blumenthal: You believe that human beings cause global warming?
Barrett: Well, Senator Blumenthal, I don’t think I am competent to opine on what causes global warming or not.
Blumenthal: We all have views on it. I’m asking for your opinion.
Barrett: I don’t think that my views on global warming or climate change are relevant to the job I would do as a judge, nor do I feel like I have views that are informed enough, and I haven’t studied scientific data. I’m not really in a position to offer any kind of informed opinion on what I think causes global-
Blumenthal: Do you agree with the President on his views of climate change?
Barrett: I don’t know that I have seen the President’s expression of his views on climate change.
Though there were some exceptions—Sen. Ben Sasse (R–Neb.) comes to mind—most Republican Senators spent their time railing at their colleagues across the aisle. Sometimes it felt appropriate, as when senators tried to counteract what they saw as unfair characterizations of Barrett’s opinions on the 7th Circuit. Other times, not so much.
“I think it speaks volumes that collectively, they’ve had very few questions for you,” began Sen. Ted Cruz (R–Texas) on Tuesday. He then lobbed two softball questions before launching into a 25-minute speech that appeared more appropriate for a campaign stop.
Sen. Josh Hawley (R–Mo.) used a chunk of his time Wednesday to cover Section 230 of the Communications Decency Act, antitrust, and economic concentration, which are now his pet issues in the Senate. And while he stopped short of probing her opinion, he may as well have: “Whether it’s Section 230 or the antitrust laws, one effect of this is to see growing concentrations of power in this country economically that I think are very significant threats to the ongoing operation of our democracy, to the basic ability of the people to control the levers, both of the economy and of culture and of government,” he said. “So I won’t ask for your view on this because these are cases, these are issues, that you very may well be called upon to weigh in on. I hope that you are. But I hope that you will give these issues consideration.”
For her part, Sen. Marsha Blackburn (R–Tenn.) used both her Tuesday and Wednesday slots to talk about the left’s “attack machine” against conservative women. “Women can have it all,” she said, addressing Barrett, who is a mother of seven children, “just not at the same time.” Sen. John Kennedy (R–La.) asked Barrett who does the laundry in her household.
Much has been made about a return to normalcy in politics, and this week provided a preview of that. “I just want to thank you,” said Sen. Dianne Feinstein (D–Calif.) to Graham. “This has been one of the best set of hearings that I’ve participated in.” Graham expressed similar sentiments. The hearings were generally civil and a far cry from Justice Brett Kavanaugh’s hearings in September 2018. But they’re also a reminder of why congressional business-as-usual doesn’t serve the American people.
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