Washington Whispers: Democrats Forced to Grin and Barrett
By Jessie Seigel/Washington, D.C.
President Trump has broadcast his desire to have a ninth Supreme Court justice who will keep him in the presidency—not to mention provide him with a vote to overturn the Affordable Care Act and Roe v. Wade.
Within hours of Ruth Bader Ginsburg’s death, Senate Majority Leader Mitch McConnell announced the Senate would rush to hold a hearing, vote and seat her replacement on the Court. This, while citizens are already in the process of voting, and despite McConnell having prevented even the consideration of President Obama’s Supreme Court nominee, Merritt Garland in January 2016, purportedly because it was “the beginning of an election year.” Hypocrisy lives.
McConnell’s plan includes a four-day Senate Judiciary Committee confirmation hearing that began October 12; a Committee vote on October 22; full Senate consideration beginning on October 23; a procedural vote of the full Senate on October 26, and a final confirmation vote the next day. Shotgun weddings have taken longer than that.
So this week, we were subjected, in the midst of the 2020 election, to the Senate Judiciary Committee’s hurried hearing on Trump’s Supreme Court nominee, Judge Amy Coney Barrett. Barrett is currently a judge on the U.S. Court of Appeals for the Seventh Circuit. Masochist that I am, I watched most of it. Here is the gist of Barrett’s responses to senators’ questions:
She can’t answer a question because it might come before her on the Court.
She can’t answer a question because it is a hypothetical and she would need to see the specifics in a case coming before her, read history to the beginning of time (or at least to the beginning of the nation), and consult with her judicial colleagues.
She can’t answer a question because it goes to policy and that is the purview of the legislative and executive branches. The courts only apply the law.
She can’t answer a question because it is “in the abstract,” and she can’t answer a question because it is in the particular.
If a senator asks a question that presumes her past articles and actions reveal her thinking, legal philosophy and positions on public matters, she simply claims a distinction between writing as an academic (she taught law at Notre Dame) and writing as a judge. Or she claims a distinction between her personal views and what she might do as a judge.
If a senator asks a question about a statement she made as a judge in a past dissent, she simply maintains that her questionable statement was not the subject of the decision, in legal terms, dictum and thus not relevant to the issue raised in the case.
Using the Code of Conduct for U. S. Judges as a shield, Barrett has claimed she cannot answer such questions, regardless of whether they are “hard” questions or “easy” questions, and that she would only answer on matters she has opined on in the past. But, of course, she has not really done even that.
For example, in Kantor v. Barr, the majority of the 7th Circuit judges upheld a prohibition against felons buying guns. Barrett dissented, claiming the prohibition should not apply to nonviolent felons. Barrett distinguished the Second Amendment right to bear arms from the denial of the right of felons—violent or nonviolent—to vote.
Various Democratic senators pointed out the absurdity of Barrett maintaining that nonviolent felons should be allowed to buy guns, but not be allowed to vote.
Barrett’s hair-splitting response? That her dissent was only noting that the Second Amendment right to bear arms is an individual right, while the right to vote is a right for the benefit of society. She added that voting by nonviolent felons was not an issue in the case.
But I would argue that Barrett chose to bring it up and to distinguish between the two situations. That suggests her philosophy: the way in which she would likely perceive and interpret laws depriving felons of their right to vote, if such a case comes before her. That was worthy of discussion beyond the evasive response Barrett gave.
A number of Democratic senators also asked Barrett whether she thought various Supreme Court decisions were correctly decided, or could be overturned. Barrett willingly gave her view on some cases while refusing to do so on others, claiming a distinction between precedent and “super-precedent.” Her definition of a super-precedent? A decision so widely accepted that no one challenges it.
Barrett said that Brown v. Board of Education, the landmark decision on school integration, is a super-precedent because it has been so long and widely accepted that no one seriously questions it. But she refused to comment on Roe v. Wade, claiming that it is not a super-precedent because there have been challenges to it. Ergo, though she would not say directly, this likely suggests that she considers Roe v. Wade a precedent that could be overturned.
Her comments sent a shiver through the liberal community. Alexis McGill Johnson, president of the Planned Parenthood Action Fund, told the Washington Post, "By saying that a 47-year-old decision is not 'well settled' law, simply because there have been calls for it to be overruled by a dogged and vocal minority, Amy Coney Barrett makes it perfectly clear that her addition to the Supreme Court would put the right to access safe, legal abortion, at risk.”
The number of items on which Barrett refused to express any opinion—even on established fact or law—was enormous. Senator Amy Klobuchar asked Barrett her view on the legality of armed people intimidating voters at the polls—something occurring now in Klobuchar’s state, Minnesota. Barrett gave her standard reply; she refused to comment because a case could come before her.
Klobuchar struck back by noting that there is a specific federal statute—18 U.S.C. Section 594—that makes such intimidation a punishable crime. Barrett could easily have acknowledged this obvious prohibition in her initial response to Klobuchar. She made no response even after the senator noted the statute. That Barrett chose not to confirm that voter intimidation at the polls is illegal speaks volumes about her supposed fidelity to law, as opposed to fidelity to that person in the White House who nominated her and who currently is promoting violent interference with voters. On the other hand, if Barrett actually did not know about this very basic law protecting the vote, she does not belong on any court, much less the highest court in the land.
When pressed about whether a president is above the law, Barrett would only robotically recite, “No man is above the law,” but would not use the word president. To my mind, that raises the question of whether this sophist would consider the president a “man” for that purpose or find some distinction if a case came before her.
Barrett similarly evaded questions of whether a president can unilaterally delay an election, or deny women or black people the vote. Her pro forma reply: she can’t answer because it might come before her on the Court. The rights of black people and of women to vote are plainly stated in the Constitution’s amendments and in statutes. And no one but a dictator could unilaterally deny those rights. Yet Barrett would not even acknowledge that much.
And of course, she would not comment on the notion of peaceful transfer of power or whether the Supreme Court should be deciding election results. (It should be noted that she worked briefly, on the Bush side of the Bush v. Gore case; there, the Supreme Court handed the 2000 election to George W. Bush).
Amy Coney Barrett is personable, self-possessed and does the Republican-sponsored Razzle-Dazzle dance well (apologies to Richard Gere in Chicago). But we, the people, should not be taken in by her manner and appearance of legal ability. We should understand what we are getting.
Barrett has stated numerous times that she will “have an open mind,” and that her legal judgments would not be ruled by her personal views. Such protestation of detachment is in itself a lie because every person has their unspoken side. All judges are human beings who bring their personal experiences, as well as their biases, to their decisions. Exploration of what has formed their judicial philosophy or the philosophy itself, should not be off-limits, as Barrett has tried to make it here.
As Senator Klobuchar noted, she could only follow Barrett’s tracks. Those tracks, as well as Barrett’s disingenuous, evasive, and obstructive nonanswers give us a strong idea of what to expect. Despite Barrett’s protestations, an open mind is not it.
Jessie Seigel is a fiction writer, an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. She has twice received an Artist’s Fellowship from the DC Commission on the Arts and Humanities for her work. But, Seigel also had a long career as a government attorney, in which she honed her analytic skills. Of this double career, Seigel would say, “I guess my right and left brains are well balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.