A Guest Post: Judge Barrett Nomination–Too Little Too Late, or, Are Any Senators Listening?

 

BY Lobo Loup

It’s now widely acknowledged that no Democrats on the Senate Judiciary Committee could lay a glove on Judge Amy Barrett’s qualifications and competence to be a Supreme Court Justice:  that she was polished, scholarly, unflappable and unquestionably qualified from a judicial point of view.  The Senators gave their speeches, maybe scored some political points, such as on the need to protect the Affordable Care Act, highlighted for the public the influence of Dark Money on judicial appointments (thank you, Senator Whitehouse!), and all the while presumably stewed in their own frustration at being able to do nothing to stop this train.  And the Republicans looked on with glee and, yes, smug satisfaction.  There was simply nothing the Democrats could do to seed doubts about Judge Barrett’s qualifications for the job, regardless of her extremely conservative and religiously steeped views and proud originalism in judicial interpretation.  She took the Ginsburg Rule to an extreme, refusing to acknowledge as ‘super-precedent’ certain cases that even then-Judge Roberts himself, in hearings on his nomination to the Court, so acknowledged.  Judge Barrett, to take a seasonal metaphor, easily shedded potential tacklers all the way down to the 1-yard line, where she now stands, awaiting the next play for a touchdown.  And to charges that she has been chosen to carry out Trump’s agenda on Roe, regulations, the Affordable Care Act, gay rights, and more, Judge Barrett clearly announced that she thinks for herself and is “no one’s pawn.”  And we surely want that in a judge, don’t we?  And so the Democrats folded, quite reasonably concluding, despite Judge Barrett’s assurances, that she will indeed follow in Judge Scalia’s path as a strong originalist and impose her extreme conservative views on the law.

Nothing could be done.  Nothing.  Not by the Senators, not with the research from the Minority legal staff.  Nothing. They all told us so.  The media told us so.

Wait.  — Really??

Consider another line of questioning, which could have gone something like this:

Dem. Senator (DS):  Judge Barrett, we applaud your statement that you’re no one’s pawn and your assurance that you will think entirely for yourself.  Of course that is exactly what we want and that the country deserves in any judge.

Barrett (JB): Thank you, Senator.

DS (preferably with a drawl, channeling former Sen. Howell Heflin of Alabama):  Now I’d just like to ask you something, Judge Barrett.  We’ve heard a lot about your judicial philosophy and so forth but I think the public would be interested in something else, and so we can get out of the clouds for a moment about all this substantive due process, originalism and other judicial doctrines. 

JB:  [Cautiously, her guard up] – Yes – thank you, Senator.

DS:  Good.  Now is it correct that you tested positive for Covid this summer?”

JB:  Yes.  But of course I’m negative now.”

DS:  Right, and we’re glad for that.  Now, there was a nomination ceremony that President Trump held for you at the Rose Garden a few weeks back.  And you were the star attraction at that ceremony, isn’t that right?

JB:  Well, I don’t know that I’d characterize . . . . [scoring points for humility].

DS:  And you were both outdoors and indoors at that ceremony, and also shook hands with people indoors at least – is that correct?

JB:  Well, I don’t recall where I shook hands with people.

DS:  Fine. Fine.  Now tell us, Judge Barrett – did you wear a mask at that ceremony?

JB:  No, Senator, I did not.

DS:  Well, then, I wonder if you could tell us, and the American people, why you did not wear a mask?

JB:  . . . [mumbles indistinctly]

DS:  Well, let me put it this way, Judge Barrett:  if President Trump had directed everyone at that ceremony to wear a mask, would you have worn one?

JB:  Well, I can’t speak hypothetically . . . .

DS:  Judge Barrett, I’m not asking for your judicial opinion here.  So I’ll put it this way:  you wouldn’t have NOT worn a mask, contrary to his direction and with everyone else wearing a mask, if he gave out instructions to wear masks – would you?

JB:  Well, that would still be hypothetical, Senator . . .  [trailing off].

Sen. Cruz (emphatically):  Mr. Chairman!  This is getting out of hand.  I object to this line of questioning.  It’s got nothing to do with Judge Barrett’s qualifications to be the next Supreme Court Justice!

DS:  Mr. Chairman, then I’d just like to ask my distinguished colleague what Judge Barrett’s piano playing has to do with the issue before us today.

Sen. Cruz:  A lot!  It shows what she does off the bench, that she lives, does and can understand other things besides the law.

DS:  Absolutely, and I congratulate my distinguished colleague for that point, which I’d like to continue right now.

Sen. Graham:  Go ahead.

DS:  Now, Judge Barrett, would you agree that reason and common sense inform any judge’s judicial reasoning – and that in fact they are three-quarters of the law?

JB:  Well, Senator, I couldn’t say what proportion of the law they are, but yes, of course they inform our judicial reasoning – and mine.

DS:  Well, that’s fine, and I’m glad to hear that.  And even as you’re ‘just calling balls and strikes’, as Chief Justice Roberts puts it, your understanding of what’s reasonable and what’s common sense surely informs your thinking, right?

JB:  That’s a fair statement.

DS:  Well, then, Judge Barrett, were you exercising independent thinking when you chose not to wear a mask at the ceremony?

JB:  Well, Senator . . . [thinking]

DS (interrupting):  Or did you not wear a mask out of deference to President Trump, when you saw that he wasn’t wearing one, or maybe because the word went out beforehand that you should not wear one, or any other officials?

JB:  . . .

DS (interrupting):  And in deferring to President Trump, were you displaying the independent thinking that you’ve told us you exercise as a judge and would exercise as a Supreme Court Justice?  And you know now, or at least public health officials have told us, that the ceremony was a ‘super-spreader’ event.

JB:  [affirmatively] Senator, I regret what I did but I can assure you that I think independently as a judge and I’m no one’s pawn.

DS:  [pose:]  I would like to believe that, Judge Barrett, and I do.  So let me ask you this:  do you believe it was reasonable for you not to wear a mask, given the physical proximity of the participants, the fact that you also were indoors shaking hands with people and that almost no one was wearing a mask?

JB:  [Mumbles about not deferring to Trump.]

DS:  So if your decision not to wear a mask was not out of deference to President Trump, because you think for yourself, independently, and exercise reason and common sense, then presumably you did not wear a mask because you decided, based on your reasoning and common sense, that that was an acceptable and indeed correct thing to do – is that right?

JB:  Well, Senator, I said I regret what I did.  [getting slightly less unflappable]

DS:  I appreciate your answers and time, Judge Barrett.  Because, you see, I think it’s interesting for the American public to hear from a judge about the importance of what it means to be ‘reasonable’ and to use common sense in her judicial decision-making.  And so I think the public would like to know, we would like to know:  if your exercise of judgment could be so different from what common sense, reason and the facts would tell most of us who understand how infectious and potentially deadly this disease is, then how are we supposed to assume that you will exercise sound reason and common sense in your judicial decision-making?  And of course, what you say as a Supreme Court Justice ‘goes’, assuming you’re in the majority on any case decision, and will affect millions of Americans. 

JB:  Well, Senator, that’s very general and as I’ve said a number of times in response to questions about how I would judge, that would be hypothetical and so I can’t answer that sitting here before you today.

DS:  Yes, indeed, Judge Barrett.  You’ve been very helpful.  We understand, completely.  And now I hope the American public does, too.  And we’re sure glad to hear that you think independently, that you’re no one’s pawn, and that you will exercise reason and common sense in your decision-making on the bench, as you’ve told us.  That is very reassuring.  [‘Heflin’ drawl dripping with irony.] I have no further questions, Mr. Chairman.

**

Would this line of questioning have stopped the train?  No.  Would it have educated the public, exposed the holes in Judge Barrett’s Teflon and, so, given the lie to her assurances?  Maybe, just maybe. – And they don’t call them goal-line stands for nothing.