Yesterday I attempted to post a commentary of the first day of real testimony from Judge Amy Coney Barrett in her confirmation hearings. Unfortunately, only one-half of what I wrote uploaded on the blog and social media outlets. My half post mirrored the half answers given by Judge Barrett in both days of her testimony. So I took down the offending post and decided to reset.
At the outset let’s be clear about the nomination of Amy Coney Barrett to succeed Justice Ruth Bader Ginsburg on the Supreme Court. This is a BIG deal. Barrett’s approach to Constitutional questions will be the polar opposite from Ginsburg’s. Joining the five very conservative members of the Court, some of whom are openly hostile to women’s reproductive rights, voting rights, health care, workers’ rights, civil rights for marginalized people, and limitations on the expansion of executive power to name just a few, Judge Barrett should fit right in with this crowd.
The days of a bloc of four “conservative” justices pitted against four “liberal” justices with one justice somewhere in the middle are long gone and hard to find. This matters because most cases that rise to the level of Supreme Court review impacts the lives of real people. Without sounding apocalyptic, life will feel much different in ten years than it feels today.
But the issues at hand are the views, writings, and jurisprudence of Judge Barrett. Tragically, anyone who viewed the two days of hearings came away with very little hard information about Judge Barrett. Some of that was due to the questions asked, and a good part was due to Judge Barrett’s obfuscation, dissembling, and general dodging of any serious question that called for a serious answer.
Much of the tenor of the hearing went as expected. The Senate isn’t the House. Even though there is a palpable seething on each side for the other, both sides observed the Senate’s tradition of decorum and civility. Of course Ted Cruz went after Sheldon Whitehouse (and through him District Court Judge Jack McConnell) after Whitehouse went after the monied interests financing to move to flood the judiciary with arch conservative “jurists.” But it was Ted Cruz and nobody likes Ted Cruz so no blood, no foul.
Sticking with the Whitehouse theme of powerful interests trying to influence who sits on the bench and finances litigation seeking to overturn or truncate decades of jurisprudence, one question was never declaratively asked nor definitively answered: “Judge Barrett, where the hell did you come from?” Good question. There’s no doubt that she’s smart, an accomplished law professor, well spoken, a good writer, and a wife and mother. So....
Enter the Federalist Society. The Federalist Society, or FedSoc for short, is a single interest organization dedicated to grooming and placing conservatives on the courts.
Once upon a time, as far back as 2015, the president through a variety of sources would receive names of potential nominees for all levels of the federal judiciary. An opening would occur and a short list of names would be composed and the American Bar Association, a staid and vanilla organization, would rate the nominees on a criteria of attributes - e.g., experience, legal practice, writings if any, graduation from an accredited law school. The ratings would then then go to the president and a nominee would be selected.
Fast forward to 2017. No longer is the ABA the gold standard rating entity. Now FedSoc has picked up that mantle. And not only do they rate possible nominees but they provide lists of pre-approved nominees for the district and appellate courts, and yes, the Supreme Court. It’s no coincidence that many of these nominees have belonged to FedSoc since law school. FedSoc searches the writings of law professors. And they recruit attorneys from law firms representing a variety of conservative clients and causes.
FedSoc even managed to place one of its own, Office of Legal Counsel’s Don McGahn, in the upper echelons of the Trump administration. By all accounts, McGahn and his Senate wingman, Mitch McConnell, had one goal - to remake the judiciary in their hard right image.
It is through this process that Amy Coney Barrett emerged. Her writings revealed her predilection for three things: an originalist view of the Constitution cemented in the 18th century (more about that in a subsequent post), a view that Roe v. Wade is not established precedent, and that the 2012 ACA case was wrongly decided. This is the full FedSoc trifecta.
Finally, it was Judge Barrett’s turn at bat. She didn’t have a difficult job - all she had to do is not strike out. And in this game, not striking out means not swinging the bat. So her answers were vague when she answered at all, and she hid behind judicial canons if asked about any issue that might, one day when the moon is in the seventh house and Jupiter collides with Mars, become a litigious issue that could one day make its way to the Supreme Court.
On Roe, she couldn’t possibly answer as there is litigation in the courts. On ACA, she couldn’t possibly comment on a matter that would be heard on November 10 - when she’ll no doubt be on the Court.
On recusal, when asked if she’d recuse herself if a Trump election challenge made it to the high Court, she responded with some convoluted judicial sounding language that basically said “if I feel like it.” Don’t bet on her feeling like it.
She even dodged ”controversial“ questions like, “is smoking harmful,” ”can the president suspend the date of the election,” ”is Covid-19 contagious” ”do you believe in science?” Evidently she didn’t want to stir Trump’s anger.
So two days went by with republicans singing hosannas while defending Barrett’s Catholicism (nobody attacked her religion), democrats tried to put real faces in the ACA discussion (although over one-half the room - the red half - didn’t care), and some argued that the whole process was bogus given the coronavirus and something called the McConnell Rule, whatever that is, or was.
Perhaps the only guy in the room who seemed to sweat more than Cruz was Lindsey Graham. He’s in enough trouble in his re-election race, he didn’t need a scathing midnight tweet. Yes, we’ve come to this.
So where are we? As Neil Young once sang, “everybody knows this is nowhere.” But to try to make some sense out of this mishegoss, here’s my plan: I’ll next examine Judge Barrett’s record on the Seventh Circuit Court of Appeals, then her writings, and finally her narrow view of originalism.
Should be more fun than the last two days.
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