If It Please The Court...
No. 28: October 16, 2020
Dear Friends,
I found a new digital gem this week, perfect for all political nerds: the C-Span Radio app for iPhone. Check it out!
It allowed me to have the audio of the Senate Judiciary Hearings for Judge Amy Coney Barrett streaming in the background as I went about my business. It was surprisingly easy to not get too distracted, since the Democrat Senators generally spent their time giving mind-numbing and mostly irrelevant monologues—except for Senator Whitehouse’s entirely riveting galaxy-brain lecture exposing the deep, dark webs of conspiracy that—gasp!—conservative legal groups spend money and try to get conservative legal folks into places of influence. Amazingly, this doesn’t happen with progressive legal groups at all [insert laugh track here]. Amy Coney Barrett’s total word count in Senator Whitehouse’s 30 minutes of “questioning”? Zero.
I am going to leave aside questions about the process and/or wisdom of filling the Supreme Court vacancy this close to the election. Whether you think it is good or bad, wise or unwise, the fact is that the situation has arisen 29 times in U.S. history, and in every instance the President made a nomination, and in nearly every instance a Senate of the same party has filled the vacancy (17 out of 19). The Senate is constitutionally free to do it, and they are doing it. And the treatment of Brett Kavanaugh two years ago is casting a long shadow. It is perhaps the single best explanation for the newfound Republican willingness to forego all deferential niceties (Senator Lindsey Graham, in fact, explicitly said so). The Democrats didn’t do themselves any favors last time around.
This nomination is a very, very big deal for our culture and society, given the oversized role the Supreme Court has accumulated over the decades, and so I feel inclined to reflect at length.
I am happy to report that the Barrett hearings were a complete fizzle, from the opening gavel to the close. After L’Affaire Kavanaugh, we sort of needed that as a country. Democrat surrender was signaled immediately when they unveiled their carefully orchestrated plan: introduce Judge Barrett to dozens of people with horrific health scare stories and preexisting conditions. The Judge must have been initially mystified. But it signaled that they were going to use the hearings as an opportunity to get an election message out to their constituents—namely, to scare them that their health care coverage is going to disappear when a would-be Justice Barrett hears a case on the Affordable Care Act a week after the election. That outcome—overturning the ACA—is considered by most informed observers as highly unlikely. The Court will almost certainly “sever” the individual mandate from the overall statute, leaving the rest of it intact.
The Democrats did this electioneering because they had almost nothing to work with in trying to convincingly show Judge Barrett to be unfit for the high court. For the most part, they wisely avoided nasty insinuations about her religion—remarkable discipline for them—because they knew it would be politically toxic. But Senator Feinstein still couldn’t help herself, when a “hot mic” picked up this casual line: “She’s been pro-life for a long time. It is deeply personal with her, and it comes with her religion.” She really, really doesn’t like it when the dogma “lives loudly” in people.
I’d like to give you some observations about the hearings and this process more generally, but first I think you should watch Senator Graham provide his closing summation. It is remarkably genuine, thoughtful, and at points quite moving.
I should note that after this, Senator Durbin took time to thank Graham and Judge Barrett, and a veritable love-fest broke out in the Senate Judiciary Committee. Senator Feinstein said, “This is has been one of the best sets of hearings that I’ve participated in,” and thanked Graham for his leadership. If you look at the comments below this Tweet (I don’t really recommend it), you will see that her supporters are not amused. They are enraged. It all concluded with Chairman Lindsey Graham and Senator Dianne Feinstein engaging in a warm embrace. Really. Pretty weird. And welcome. It tells me that regardless of the rancorous political battles, everyone seemed to recognize (if with a frustrated sigh of regret) that Judge Barrett is an impeccable nominee and simply untouchable.
Let me talk about each of the parties in the room: Judge Barrett, the Democrat committee members, and the Republican committee members.
First, Judge Amy Coney Barrett is an impressive nominee. On the first day, Senator John Cornyn (R-TX) asked her to hold up whatever notebooks and materials she was referring to throughout the hearing. She sheepishly held up a completely blank notepad with the letterhead, “United States Senate.” She had no notes.
It was a light-hearted moment designed to break the tension, but it spoke volumes. I want you to grasp this: the Constitution, precedents, opinions, legal scholarship, judicial history—all of this and more is between her two ears. With almost every single legal case the Senators brought up, she immediately displayed deep knowledge of the legal and interpretive issues involved. This is commonly called expertise. It reminded me of an event in my own life. One winter morning I entered an examination on my Ph.D thesis. That’s an interview in which you don’t bring notes. You are expected to have the whole of it—the thesis, arguments, scholarly literature, etc.—at your immediate recall. That’s how they know you’re really an expert in the field (and usually it’s a pretty narrow field). There’s no faking it. That Judge Barrett had the personal confidence to rely solely on her own mind with a field of knowledge that deep and vast is actually pretty jaw-dropping for me.
Kyle Smith at National Review savagely summed it up this way:
The iconic moment of a week the Democrats spent trying and failing to set a fire in the national dumpster came when Senator John Cornyn asked Barrett to hold up the cheat sheet she had brought along that enabled her to give such cogent, astute answers to every question, no matter how vapid, and she instead smiled and held up a perfectly clean, blank notepad. Barrett had somehow managed not to cover the pad with giant question marks, clown caricatures or sharp queries such as, “How did Mazie Hirono graduate from Georgetown Law?” As she held it up for the cameras, the notepad provided a picture to the nation of every good point the Democrats had made, every black mark the committee had managed to attach to her name, and every reason she should not be confirmed.
Another commentator on one podcast marveled that even while many Senators wouldn’t let her get a word in edgewise, in what little she said she managed to make crystal clear, with disarming modesty, that she was the smartest person in the room. It was a truly effective performance, and it looked effortless.
Something else stood out. Judge Barrett submitted over 1,800 pages of written material for the committee—lectures, speeches, as well as legal opinions—and I was surprised at the paucity of usable material for the Democrats. And it’s not the short time frame from the nomination to the hearings. They’ve had most of the material since 2017, when she was appointed to the 7th Circuit. In most hearings for nominees, there is a wide range of controversial opinions they’d written, and the nominee gets raked over the coals on a lot of matters. For Judge Barrett, all they had—if memory serves—was a single line plucked out of one speech, a simple pro-life statement she’d signed, a sentence from a single law review article, and a sentence from maybe two or three legal opinions that they didn’t understand and that they didn’t like. They had virtually nothing to bite on. And that’s because she’s been an exceptional and conscientious scholar and judge.
So the Senate Democrats instead spent two days talking about policies they like, and policies they don’t like, thus betraying yet again that they do not understand the purpose of the judiciary. They really do want the court to be a legislative branch of government, and they hounded her again and again and again about whether she would commit to particular policies and statutes they consider sacrosanct. They claimed to be “scared” of Judge Barrett and how she might rule in certain cases. I thought to myself: she’s an Originalist. So why don’t you just enact laws that will pass constitutional muster in the first place? Problem solved! But that takes too much effort, so they want a judge to do the legislating for them, by “discovering” new rights in the Constitution where nobody had seen them before in the previous couple of centuries. And even more important to them—the absolute paramount desire—is judges who promise not to touch the conjured rights that previous lawless courts have already invented. If you’re not willing to commit to that, you’re “unfit” for the job. None of that is how our system of government is supposed to work, but, thankfully, Judge Barrett knows how it is supposed to work.
The most amazing aspect of all this political pressuring of Judge Barrett is that it is utterly incoherent. One moment they want her to commit to certain Supreme Court rulings as sacrosanct, inviolable, never to be overruled (like Roe v. Wade). The doctrine of stare decisis (letting precedents stand) requires that you cannot overturn precedent! The very next moment, a Senator would quote from a dissenting opinion from Justice Ginsburg and demand to know whether Judge Barrett agrees with it. Now, wait just a minute. If it is a Ginsburg dissent, that means Ginsburg lost. The court ruled against her point of view. Doesn’t that make the majority opinion to which Ginsburg dissented a sacrosanct, inviolable precedent that cannot be overruled? Oh, no! That’s a bad ruling that needs overturning, you see. The pure, arbitrary, self-interested political calculus should be obvious to anyone listening carefully.
I need to give some credit where due. I don’t agree with Senator Cory Booker on a lot of policy matters—he’s a loyal foot soldier for the progressive cause. But he came across (to me, anyway) as a serious person in these hearings (and if he improves on the stump, might be a real contender someday for higher office), and many of his questions were well-informed. So let me say this: when he talked about criminal justice reform, there was great deal of it I agreed with—the problem of sentencing disparities, for example. It’s an important issue, and I’m glad he cares deeply about it. I just want him to get it done by legislating, not by asking a judge to do it for him. And I want him to do it without tarring the entire criminal justice system as systemically racist; that is a conversation stopper and not helpful to actually accomplishing reform. Still, I credit him for his seriousness and passion in taking up the cause; there are just better ways of getting it done than his usual demagoguery.
Republicans as a whole get a passing grade. Special mention goes out to Senator Sasse, who once again provided an excellent civics lecture for my 8th grader. But far and away my new favorite person is the shamefully unheralded Senator from Louisiana, John Kennedy. He sounds like he is the owner of a Bubba Gump Shrimp franchise, but hidden beneath his “Aw, shucks” facade is, to my pleasant surprise, a man of substance. He is wildly entertaining—he’s like a Shakespearean actor placed in a perfect role—but he managed to ask, by far, the most interesting and probing questions of the hearings. If you want to see for yourself, here’s their second encounter (the first is worth watching, too):
All in all, unless there is a sudden new revelation that little Amy Coney once stole a beignet from a New Orleans bakery—you know, something about which the American people will demand we delay confirmation until we get to the truth!—the United States is getting a new Associate Justice of the Supreme Court. And I think it will be a very good day for our country, the separation of our powers, and the rule of law.
Miscellany
One more clip. Most of the hearings established beyond any doubt Judge Barrett’s legal qualifications, but on Day 4 a former student told the Senators what kind of a person she is. It is quite a moving testimony.
Do NOT miss the significance of this:
As recently as last month, Webster’s Dictionary included a definition of “preference” as “orientation” or “sexual preference.” TODAY they changed it and added the word “offensive." Insane - I just checked through Wayback Machine and it’s real. (via @thorsvensonn & @chadfelixg)
Here’s the story. At one point during the Senate hearings, Judge Barrett uttered the words “sexual preference.” In the very next round of questioning, as I recall, Senator Hirono (D-HI) began berating her for using this “offensive” term. You see, it appears to imply that sexual orientation is not an immutable characteristic, and therefore is “insulting” to the LGBT community. (I wonder what she thinks the “B” stands for?) Senator Hirono then demanded to know: “How many fingers am I holding up?” Oh, sorry. That wasn’t it. Rather, she demanded to know whether Judge Barrett agreed that sexual orientation is an immutable characteristic. Later that very afternoon Webster’s Online Dictionary changed the definition of the word to reflect this brand-new, literally minutes-old fact that the term is “offensive.” Now, it didn’t take long for people to put Google to use to discover that until that very day, lots of people were using that term, inconveniently including Ruth Bader Ginsburg, Joe Biden, and… Advocate magazine!
It is one thing for a desperate Senator and her staff to seize on a ridiculous line of attack—inventing a new definition of a word on the spot—but it is quite another to have the actual dictionary participate in real time. Cultural power in action. We’re increasingly living in Orwell’s 1984, and soon you will be made to say that four fingers are five if the committee says it is.
Oh, and by the way, Andrew McCarthy of National Review wittily expressed some consternation about the new lingo. I helped him out:
A good Public Service Announcement from Justin Taylor:
There are only four differences between a toddler and an embryo: Size Level of development Environment Degree of dependency None of these four—how big you are, how developed you are, where you are, or how dependent you are—is morally relevant for the right to life.The only question seems to be whether we think killing a toddler is morally equivalent to killing an unborn baby. Even people who aren't pro-life presumably recognize that *if* you believe that it is, *then* the never-DNC position makes sense. 2/2
Neil Shenvi @NeilShenvi
This kind of stuff is really common, and it makes me sad:
To which I replied:
World Chess Champion Magnus Carlsen didn’t lose a game of classical chess (long clock times that result in 4 to 6 hour games) for 125 games, spanning two years, two months, and ten days. It’s a record, and the streak has finally ended. It’s not as though he hasn’t faced stiff competition—top players today are some of the strongest ever. But he is so otherworldly I have little doubt he’ll just start a new streak and maybe beat the record himself. Probably two years, two months, and eleven days from now.
Every once in awhile you hear a voice that frankly takes your breath away. I had that experience a few years ago when some friends hauled me off to see a concert by Canadian artist Colter Wall. When is the last time you heard a voice quite like that? Johnny Cash, that’s when. Enjoy, and have a wonderful week!
I continue to appreciate your insights and writing, brother.