There are many generic arguments against the Senate’s confirmation of Judge Amy Coney Barrett to the Supreme Court, bearing on the timing, the rush and the institutional hypocrisy that can only be denied by people with their eyes wide shut. But that’s a slam on the process, not Barrett, although it’s hard these days to separate the two.
At the close of questioning, Judiciary Committee chair Lindsay Graham made the point that, for a nominee from a Republican president, she was fully qualified, just as was Justices Kagan and Sotomayor as nominees from a Democratic president. Yet, that’s not quite the way it’s being seen.
They have the votes to confirm her, and confirm her they will, but her insistence that she is an “originalist,” along with her refusal to answer any questions on topics relevant to the present, including on racial prejudice, climate change, voter suppression, and so on, have made her extremism clear.
Nick Kristoff at the Times agrees.
Amy Coney Barrett has been following recent precedent in her confirmation hearing before the Senate, pretending that she has never had an interesting thought in her life.
Is it illegal to intimidate voters at the polls? She didn’t want to weigh in. A president postponing an election? Hmm. She’d have to think about that.
What about climate change? “I have read things about climate change,” she acknowledged, warily emphasizing that she is not a scientist. “I would not say I have firm views on it.”
If she had been asked about astronomy, she might have explained: “I have read things about the Earth being round. I would not say I have firm views on it.”
To be fair, she readily said that racial discrimination exists, but refused to get deeper into the mud. The Dems did their job in trying to get her to blow up as she walked through the minefield, as Barrett invoked her duty to avoid expressing a bias on matters that might come before the Court. Did that, as Heather Cox Richardson concluded, make her “extremism” clear?
What’s a nominee to the Supreme Court to do? Sure, we would all like nominees to testify before Congress that they would rule as a justice in the way that give us the decisions we prefer, and we would similarly want to know that they would rule against us so we would be able to firmly demonstrate their lack of fitness for the position because they were clearly biased. What use is a justice who comes to the job with the decisions already made? What point is there to brief and argue a cause if we’re informed beforehand that we’re going to lose?
One of the primary problems is that while the senators know what they should be looking for in a nominee, a nominee who is qualified to intellect and experience, temperament and impartiality, the public either doesn’t or doesn’t care. They perceive nominees like any pol running for office, and expect them to take a side and represent it on the Court.
But, you say, even if the nominee is justified in refusing to express advance views on legal issues that may come before the Court, whether to inform us that she will rule the way we prefer or at least to calm our concerns that she is some crazed partisan who is sworn to destroy the ACA, end abortion and gay marriage and always rule in favor of the powerful and crush the oppressed, at the very least she can offer her ordinary “human” views on such mainstream issues of the day like voter intimidation and climate change.
Can she open the door in this hyper-partisan environment without either demonstrating a bias or getting caught in the dilemma of having a generic view on a highly complex issue that can’t push her into a corner? In the past, the level of hostility and effort to “catch” a nominee rarely reached the heights of the last few years.
There are, of course, good reasons for this level of antagonism, but they’re not Barrett’s fault. Nonetheless, she was no doubt aware that it would be taken out on her before accepting the nomination, so she can’t claim surprise. Had she been willing to express her views on broader issues that pretty much every human being holds, would it have placated the Democratic senators? Would the progressives finally embrace her as a female justice? The way to avoid getting dragged down the rabbit hole is to not go near its entrance, and she didn’t.
Does that make her an “extremist”?
It is true, as some conservatives argue, that this path toward social progress would ideally have been blazed by legislators, not judges. But it is difficult for people who are denied voting rights to protect their voting rights, and judicial passivism in these cases would have buttressed discrimination, racism, sexism and bigotry.
This argument isn’t limited to conservatives, unless you consider us old school lefty liberals conservatives now as progressives generally do. The failure of the legislative branch to do its job does not mean the burden shifts to the courts to do a job for which it is neither equipped nor competent. Justices are not representatives, philosophers or moral arbiters.
Partly because of paralysis by legislators, partly because of racist political systems, forward-thinking judges sometimes had to step up over the last 70 years to tug the United States ahead. Those judges chipped away at Jim Crow and overturned laws against interracial marriage, against contraception, against racial and sexual discrimination.
On the contrary, the Equal Protection Clause and substantive due process exist in our Constitution and jurisprudence, and are rightly invoked to eradicate social wrongs and “buttress” the rights afforded by the Constitution. That’s not the same as becoming the institution of progressive change in society when the rest of government has failed.
Like most people, I, too, would love to know where Amy Coney Barrett’s head is at with a great many issues, but I understand why, given the times, she wouldn’t go near the rabbit hole. She’s otherwise qualified, albeit not a former trench lawyer as is desperately needed. Then again, neither party’s president seems too interested in putting a lawyer on the court who tried cases for anyone other than the government for a living.
Is she really impartial enough to hear my side of the argument and give me a fair shake? I don’t know. She says she has no agenda, but nobody would say otherwise. In a less contentious atmosphere, maybe we would have gotten a better idea of whether of who she will really be. But given the overheated climate, who can blame her for refusing to be dragged down the rabbit hole?