Opinion

The GOP's bad faith SCOTUS diversions

Democratic senators want to talk about constitutionality. Republican senators would prefer to focus on anything else.

The first two days of the hearings being held by the Senate Judiciary Committee for the Supreme Court nomination of Judge Amy Coney Barrett have reflected a simple pattern. Democratic senators want to talk about her views on constitutional questions; Senate Republicans would prefer to focus the discussion on anything else. As a diversion, Republican senators have repeatedly made preemptive defenses of Barrett's religious beliefs against imaginary Democratic attacks on them. But don't be fooled: These bad faith accusations of religious prejudice made by Republicans are meant to throw up a fog obscuring the fact that they want Barrett confirmed to help impose a radical and extremely unpopular policy agenda on a country that has repeatedly rejected it at the ballot box.

The Republican strategy has not been subtle. Senator after senator has asserted that Barrett is about to come under attack because of her devout Catholicism. But all of these arguments are figments of their imagination. Senate Democrats, hoping that by this time next month Joe Biden will have won his bid to become America's second practicing Roman Catholic president, have ignored her religious beliefs. This is smart politics (not that it was exactly hard to see the trap Republicans were setting — in the Trump era, the GOP can't really do cleverness or nuance.) But it's also the right thing to do on the merits. Barrett's religious beliefs are irrelevant. Organizations like the Federalist Society and Heritage Foundation ensure that aspiring Supreme Court justices have orthodox conservative views on the questions most important to contemporary Republicans, and Barrett's views are simply those of a conventional Trump appellate court nominee. What mixture of religious and secular beliefs motivates them is entirely irrelevant.

The political problem for Republicans is that the orthodox views of Republican judges in 2020 are enormously unpopular. This requires a cynical political theater in which Republicans pretend to be outraged by people who assume that a Republican judicial nominee shares the view virtually all Republican elites have on constitutional questions like the soundness of Roe v. Wade or the constitutionality of the Affordable Care Act. This feigned ignorance is intelligence-insulting. If Republican senators really believed that the rulings of future Supreme Court justices were an unknowable mystery, Merrick Garland would be sitting on the court right now.

The questioning of Missouri Sen. Josh Hawley (R) on the second day of hearings took this attempt to change the subject from Barrett's views on constitutional matters to the point of self-parody. Hawley asked Barrett whether her religious views legally barred her from office or whether there were any legal issues with her meetings with pro-life students. It would lend these arguments too much dignity to call them "straw men." Nobody of any power or influence in the Democratic Party believes that Barrett's religious views should bar her from office —which is why Barack Obama nominated and Senate Democrats voted to confirm the Catholic Justice Sonia Sotomayor — or that a faculty member meeting with student groups is wrong (let alone illegal). What matters is what the anti-Roe advertisement she signed and her meeting with students who oppose abortion rights says about her position on whether Roe should be overruled, questions that would be equally relevant if she was a Protestant or Muslim or atheist.

The typical way in which contemporary Supreme Court hearings run out the clock without the nominees having to say anything of substance is to talk about the question of precedents in the abstract. Barrett's hearings are no exception. During questioning by Sen. Amy Klobuchar (D-Minn.), she said that Roe v. Wade was not a mostly settled "super-precedent" like Brown v. Board of Education. This is not an inaccurate description as far as it goes. And Barrett's general view on precedent — that in some but not all cases, upholding precedents is more important than correcting past mistakes by the court on constitutional questions — are held by many judges, including the late Antonin Scalia, her former boss.

But this should hardly be reassuring to supporters of reproductive freedom. Scalia, after all, was the most vociferous proponent of overruling Roe to ever sit on the Supreme Court. Not only did Scalia repeatedly call for abandoning Roe, on more than one occasion he compared the landmark decision to the Supreme Court's infamous 1857 case Dred Scott v. Sandford, which held that Black people had "no rights which the white man was bound to respect." (The large majority of Americans who support Roe v. Wade would presumably be surprised to be compared to antebellum racists.) While Barrett might frame her opposition in less inflammatory terms, between her orthodox Republican views and her specific criticisms of Roe v. Wade it is extremely unlikely that she will ever vote to strike down a regulation of abortion, including a total ban.

Indeed, in a rare moment of candor last month, Hawley declared that he would not vote for a nominee who wasn't committed to overruling Roe v. Wade. When he votes to confirm Barrett later this month, believe what he said then, not what he might pretend not to know now.

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