The week's big question: What was the most illuminating moment of the Barrett hearings?
The Senate Judiciary Committee conducted four days of nomination hearings this week for Amy Coney Barrett, President Trump's pick to replace the late Supreme Court Justice Ruth Bader Ginsburg. There were fewer fireworks this time than during the hearings for Justice Brett Kavanaugh two years ago, but with a 6-3 conservative court majority at stake, there were still plenty of sharp exchanges and political maneuvers. The committee will next vote on Barrett's nomination on Oct. 22.
This week's question is: What was the most illuminating moment of the hearings? — Nico Lauricella, editor-in-chief at TheWeek.com
A glimpse into GOP strategy
On the first day of Amy Coney Barrett's confirmation hearings, Democratic Sen. Chris Coons (Del.) made a passing reference to Griswold v. Connecticut, the 1965 Supreme Court decision granting married couples the right to use contraception. Minutes later, Republican Sen. Josh Hawley (Mo.) accused his colleague of anti-Catholic bias. "I can only assume," Hawley declared, that Coons' mention of Griswold "is another hit at Judge Barrett's religious faith, referring to Catholic doctrinal beliefs."
This false assertion of bigotry was smart politics, and provided an enlightening glimpse into GOP strategy. Hawley was probably eager to deem Griswold off-limits as a topic of discussion because support for contraception remains high in America, and because the case laid the groundwork for another ruling that's not as revered: Roe v. Wade. Griswold provided the foundation for Roe, establishing a right to privacy over reproductive decisions. If the Supreme Court overturns Roe — as it likely will after Barrett is confirmed — then Griswold must fall, too. And while the Republican Party opposes Roe, it doesn't seem keen to acknowledge that birth control is constitutionally intertwined with abortion.
Despite Hawley's attempt to run interference, Barrett did discuss Griswold with Coons, telling the senator she believes it's unlikely "to go anywhere" because no states ban birth control today. That misses the point. Republicans often act as if Roe came out of nowhere, an aberration with no basis in the Constitution. But it's actually one of a long line of cases that give Americans freedom to make deeply personal choices — including later decisions that established same-sex couples' right to intimacy and marriage. Most of these rulings are popular today, and all of them will be threatened if Roe goes. Hawley might want to hide from the collateral consequences of Roe's demise. But when the time comes, the rest of us won't have that luxury.
Barrett dryly answers Harris
There is a very old joke played, for laughs by P.G. Wodehouse among others, revolving around the idea of an officious-sounding person demanding an answer to a question he or she has declined to finish, usually because the rest of it comes on the back of a piece of paper the person has forgotten to flip over.
It was a jolly thing to be reminded of this gag by Sen. Maise Hirono (D-Hawaii) on the second day of the confirmation hearings for Amy Coney Barrett this week. Over and over again Hirono gave the impression that she did not not know what she was asking the Supreme Court nominee, breaking her questions off in mid-sentence or interrupting herself to say things like "Because all laws or most laws — we pass them — are supposed to have real-world impacts. Otherwise why should we pass the law?"
Still, asked to name the single most important moment of the week’s mostly unedifying hearings, I would nominate the exchange later on Tuesday between Barrett and the Democratic vice presidential nominee, Sen. Kamala Harris (Calif.), who asked the good judge whether she believes that smoking causes cancer.
"Every package of cigarettes warns that smoking causes cancer," Barrett responded dryly, anticipating that Harris was about to try an amateurish prosecutorial gambit that the senator hoped would reveal her views on climate change. This refusal to deviate an inch from facts — about the nature of the legal system and her own biography — sums up Barrett’s performance throughout the week’s proceedings: too subtle for her opponents, intelligent, and occasionally witty.
What Barrett proved to the American people and the world this week is that in addition to being a brilliant scholar and judge she is unflappable, tough-minded, and a very good egg. No wonder she is polling well.
Feinstein's unwelcome comity
The moment of Amy Coney Barrett's confirmation hearings that might be remembered long after her non-answers are forgotten came at the very end. Eighty-seven-year-old Dianne Feinstein (D-Calif.), the ranking Democrat trusted with the task of directing party strategy, turned to chairman Lindsey Graham (R-S.C.) and told him, "This has been one of the best set of hearings that I've participated in. Thank you so much for your leadership."
Her performance led to an immediate polling boost in Graham's unexpectedly tight re-election fight against Jaime Harrison. More importantly, her encomium to collegiality had no place at these illegitimate proceedings. Graham and his colleagues cynically set aside their own four-year-old rule about not confirming Supreme Court justices in an election year to install a hardliner weeks before an election in which they appear set for obliteration.
They are rushing Barrett through despite knowing that their move might cause Democrats to enlarge the Supreme Court, counterfeiting the GOP's decades-old project to use constitutional hardball to conquer the federal judiciary. Filling Ruth Bader Ginsburg's seat with Barrett is Graham's way of daring Schumer and the Democrats to do something about it. And who can blame them for taking the gamble, with people like Feinstein clinging to the distantly remembered dream of bipartisanship?
It's not about the hug. As one of President Trump's chief enablers, Graham simply does not deserve the kindness. Instead of offering gratitude, Feinstein should have told him that he and his friends just did more to destroy the legitimacy of the Supreme Court than anyone in 150 years, and that, to borrow a phrase from Brett Kavanaugh, what goes around comes around.
Nothing was illuminated
Politics is always performative, and this week's Senate hearings for Supreme Court nominee Amy Coney Barrett were no exception. My question is not why these hearings were theatrical, but why that theater was so bad.
Republican senators spent inordinate time quizzing Barrett on 7th-grade civics facts. This is pointless — does anyone imagine a well-regarded law school like Notre Dame is hiring professors who don't know such basics? Sen. Ted Cruz (R-Texas) asked Barrett to explain why it's important to protect free speech. Sen. John Cornyn (R-Texas) played painfully dumb to verify that "the judicial decision-making process is different from the legislative process." Sen. Ben Sasse (R-Neb.) asked why judges wear black robes. Both the meme-able moment Cornyn created by having Barrett reveal that she had no notes and Barrett's Rick Perry moment when Sasse asked her to list the "five freedoms" proved nothing and helped nothing.
Democratic senators were even worse. They left nearly all the extended inquiry into Barrett's originalism and textualism to the GOP and instead devoted enormous energy to asking questions they knew Barrett would not or could not answer. By all means, get your attack ad footage to scare voters about Barrett "refusing to say" something without explaining why she declined to speak. But attack ads are seconds long — yet Sen. Dianne Feinstein (D-Calif.) posed question after question she knew Barrett would never answer on the basis of the Ginsburg rule: "no hints, no forecasts, no previews" about unsettled legal questions. Particularly useless was Sen. Patrick Leahy's (D-Vt.) decision to repeatedly ask Barrett if she knew random statistics, which, inevitably, she did not.
The next time this show is running, let's at least have a better script.
Barrett's racial bias disinterest
The confirmation hearings for Amy Coney Barrett were, by design, unilluminating. But there were a few troubling, telling moments. One of the most significant: Barrett would not confirm that racial bias exists in the criminal justice system, and when Sen. Cory Booker (D-N.J.) asked her "to share what studies, articles, books, law review articles, or commentary you have read regarding racial disparities present in our criminal justice system," she couldn't name a single one.
The charitable reading is that Barrett is ignorant: She is so high up in the ivory tower that she's simply missed the conversation on one of the most animating issues in American life. The more realistic one is that she is pointedly disinterested: She just doesn't care, and is contemptuous of those who would make her explain why.
Barrett taught law for more than 15 years and has written prodigiously on a wide variety of legal issues. In her time as a law student, lawyer, professor, and judge, racism in the justice system has been the subject of significant debate within the legal academy; it has animated street protests in hundreds of American cities; it has been covered in the nation's leading newspapers and news magazines; it has been at issue in court cases across the country. There is no shortage of books, studies, and articles about the topic. And there's no real question that such racism exists; it's a phenomenon that is heavily studied and well-documented.
Barrett is, by all accounts, a woman of great intelligence and intellectual curiosity who is well-studied on an array of legal matters, and is certainly more than conversant on many that are relatively peripheral for most people and in most cases. So it is quite revealing that she's so wholly incurious — avoidant and dismissive, even — when it comes to racism in the very system she is about to sit atop.