Let’s stipulate, as they say in the law biz, that Amy Coney Barrett is a fine person. That she’s a smart person. That she has a beautiful family. And that if the standard for being a Supreme Court justice is a good working knowledge of the Constitution and constitutional law, then she’s certainly qualified.
Now let’s also stipulate that none of that matters.
If you’re watching the hearings, you’ve seen Barrett present herself as a neutral party in considering any case, not unlike Chief Justice John Roberts, who famously said in his confirmation hearing that he would call only balls and strikes. There’s a difference, of course. Umpires have a strike zone to deal with. Supreme Court justices do not.
But everyone watching — and everyone not watching — understands that Republicans are desperate to ram through Barrett’s nomination, during a pandemic and during the final weeks of an election, because they fully expect the 48-year-old federal judge would be a reliable, longstanding vote on their side. (And, yes, Democrats also pick like-minded jurists when nominating a Supreme Court justice, if they ever get to nominate another one.)
Democratic Sen. Sheldon Whitehouse made a more-than-convincing argument that if you look at Trump’s statements, if you look at the Republican Party platform, if you track the dark money behind Trump’s Supreme Court nominees, if you know the Federalist Society that vets Trump’s court selections, there is no one who can reasonably deny that the reason Barrett was selected was because they expected her to overturn Roe v. Wade. As Whitehouse said, it’s not him saying that. It’s Trump and the Republican Party saying it. Same for Obergefell. Same for Obamacare, which gets a Supreme Court hearing a week after Election Day in yet another attempt to gut or even strike down the law.
That’s the issue. Don’t expect any Kavanaugh-like drama from these hearings. Despite Republican insistence on accusing Democrats of religious bigotry, you can bet that Barrett’s faith will never come up. There was some tough questioning, but Barrett was never rattled.
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Before the hearings began, we already knew the stakes. And we already knew the likely outcome. Donald Trump has made clear that he believes the election results will eventually end up before the Supreme Court, which, of course, had stained its reputation forevermore with its embarrassing 5-4 Bush v. Gore ruling — one that, in effect, ended the triple overtime election fight. He’s appointing Barrett because, in Trump’s transactional view of the world, he believes she will owe it to Trump to defend him. He has said as much. He also said he would appoint justices who would overturn Roe v. Wade.
Barrett may be silent on these matters and may insist that she has never discussed them with Trump or with any senator and that, whatever else, she would not be Trump’s “pawn,” but we know Trump is never silent and that he has set the terms, in a matter of a few tweets, for the entire hearing.
In those hearings, Democrats are arguing that Barrett should recuse herself if, in fact, this election does go before the courts, which is not a bad bet. They also asked if she would recuse herself in the Affordable Care Act case, given that Trump has basically promised that anyone he nominated would strike down Obamacare. She said she would consider it, but that’s as far as she went, which is hardly surprising. She spent much of her day not saying much of what she’d do about anything. This is not new. We’ve seen nominees take this stance for decades.
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Though Trump is almost certainly the least ideological president of the modern era, and maybe ever, he has made the politics of the judiciary central to his presidency, for reasons both personal and political. Trump has repeatedly said that because of Article Two of the Constitution, he can do whatever the hell he wants to do. Which is an interesting reading, if, in fact, he has read it. (A show of hands here will do if you think he has read it. My guess is he’s got a better understanding of Two Corinthians.)
But this conservative project has been decades in the making — and embraced by many Republican voters — to build a court that would either overturn Roe v. Wade or, at minimum, sufficiently weaken it. One that would strengthen gun rights protection. One that would favor industry vs. climate change. One that would reinforce Citizens United and all the dark money that comes with it. One that would overturn Obamacare. One that would favor deregulation. One that, as in the days of Franklin Roosevelt and a Supreme Court that was overturning much of the New Deal, prefacing Roosevelt’s proposal to pack the court, would play a similar role if Democrats control the presidency and Congress this November.
A 6-3 conservative majority — which could take away Roberts’ role as a sometimes swing vote — could also block, conceivably for generations, progressive change in an ever-changing country in which the majority may not agree with “originalism” or that 18th-century musketry or militias has much to tell us about gun violence today or, for that matter, militias today.
Which is why, beyond the simple matter of fairness, Democrats are so angry about Mitch McConnell’s heist — yet another heist — of a Supreme Court selection. As many have pointed out, McConnell’s unashamed decision to block Barack Obama’s nominee, Merrick Garland, in an election year and, four years later, champion Donald Trump’s nominee for hearings in the final few weeks before an election, is a breathtaking case of hypocrisy.
As a reminder, here’s what McConnell said in 2016, eight months before the presidential election: “Given that we are in the midst of the presidential election process. We believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court.”
Republicans explain their turnaround by uttering inanities. But the point is McConnell wins. The hearings themselves are of little consequence, other than to score political points. There is, as you might have heard, an election upcoming. As committee chair Lindsey Graham said in his opening statement, nothing you’ll hear will change the fact that Republicans have a 12-10 majority on the committee or that the final vote will be, yes, 12-10.
But Republicans know what they’re risking. If they jam through a 6-3 majority, many liberal Democrats will insist on packing the court, saying that’s what McConnell has, in effect, done. After dithering for a while, Joe Biden has finally said he’s “not a fan” of court packing, but that he doesn’t want to take the bait. Personally, I’m a fan of court reform, meaning some way to get rid of lifetime appointments. I don’t think the court was ever particularly apolitical. But if we get anything out of these hearings, it will be that, when it comes to the court, as it does nearly everything else, politics comes first, last and always.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow.
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