Jurisprudence

Don’t Expect a “Gotcha” Moment in the Barrett Hearings

We are witnessing the erosion of representative democracy itself. That can’t be captured in a viral video.

In profile, Amy Coney Barrett sits at a desk and reads a paper.
Amy Coney Barrett delivers her opening statement. LEAH MILLIS/Getty Images

The Senate Judiciary Committee began hearings this morning for Judge Amy Coney Barrett and it’s clear both sides are hoping for some kind of “gotcha” revelation that will never come.

Judge Barrett is not going to baited into blurting out that she will strike down Roe v. Wade and criminalize abortion, having spent a lifetime opposing reproductive freedom and three years on the federal bench determinedly limiting it. And Senate Democrats will not be baited into evincing open anti-Catholic animus, GOP gaslighting notwithstanding. Neither side is likely to get their viral fireworks moment. But the real stakes of this change to the court simply cannot be captured in a 30-second soundbite. There is a rumbling subterranean shift going on that is far more consequential than the stakes as laid out.

Judge Barrett will be nice and her family will be nice. There will be a copious wellspring of niceness alongside abundant warnings about how the public will be put off by failures of niceness. Because Democrats probably can’t be tempted into acts of rank sexism or religious warfare, Senate Republicans will try to goad them into pledging to “pack the court” to justify the nihilism Republicans have displayed for the past four years. In a kind of preemptive “stand your ground” performance of constitutional maximalism, Senate Republicans claim that Democrats of the future forced them into shattering democratic norms today and also four years ago. (As Jamal Greene has noted, what the GOP Senate did to pack the court in 2017 was far sleazier and less transparent than constitutionally permissible court expansion.)

So what then is the point of tuning in, this week, if it’s just the empty theater of a conservative majority flexing its muscle “because we can,” with a side salad of “democracy is overrated?” I’d suggest that what we are really witnessing this week is not the vetting of Amy Coney Barrett, who failed to turn over relevant documents and speeches, because proper vetting cannot and will not be done in this rushed and imperfect forum. What we are witnessing is the erosion of democracy itself by a minority party, and that is just not something that lends itself to viral videos. And asking Senate Democrats to sound the alarm on the illegitimacy of the Senate itself is a lot like asking federal judges to opine to the decline of the judicial branch.

The problem is that the story of how we got to this point is hard to boil down to a pithy declarative statement. (Here is Heather Cox Richardson in a creditable history-based attempt.) What is playing out this week is the culmination of a slow-rolling project, with millions of dollars in funding, that has been decades in the making. That’s why a president granted five years’ worth of Supreme Court nominations in a four-year term isn’t a salient talking point. Monday’s focus on religious liberty and the Affordable Care Act obscures the truth that a tiny group of kleptocrats and religious extremists have captured this third branch of government and intend to use it to subvert democracy itself. Conservative activists have failed to accomplish their agenda through popular and legislative means, but have managed nonetheless to push their priorities through favorable courts. It is an attack on healthcare, yes, and workers and consumers and women and taxes and regulations. But even that isn’t the whole object. This capture of the federal judiciary, financed largely by a clutch of anti-government billionaires, has also enabled a steady erosion of even the illusion of majority rule. Under this rumbling subterranean movement, we’ve seen government sidelined, yes, but majority rule sidelined as well. The captured courts have aided and abetted this project by pruning back the Voting Rights Act, by the blessing of vote suppression and political gerrymanders, and by opening the spigot to these same groups of billionaires to buy and sell elections for their own purposes.

The American public may see these confirmation hearings as business as usual for a polarized deliberative body, where Democrats talk about healthcare and Republicans talk about faith. Maybe they even see them as an important aspect of democratic governance. But that is missing the central purpose of this particular confirmation. This particular hearing actually exists to hasten the decline of democratic governance itself.

These hearings, if properly contextualized, expose what happens when a Senate that structurally privileges white patriarchal power over majority rule, works to entrench the will of a president who lost the popular vote, yet stands poised to seat one-third of the Supreme Court. If we were to stand back and take it all in, it’s not much more complicated that this: The GOP is manic about packing the court (and terrified about future Democrats’ threats to pack the court) because, increasingly, the courts offer the best avenue to preserving and entrenching minority rule over a country that by and large does not share its political and social priorities.

Now, the GOP hopes to lock in minority power before they are likely clobbered in a federal election. Judge Barrett was selected to help get done what cannot be done legislatively, even in a minority-rule Senate with a president who lost the popular vote: End Obamacare in a pandemic, and curb abortion rights, civil rights, worker protections environmental protection and LBGTQ equality. She was selected for this seat to enshrine gun freedoms that are wildly unpopular. She was selected for this seat because under the thin cover of “feminism” she can reverse decades of women’s progress. These are not the policy outcomes voters want, and this is precisely why voters have been altogether carved out of the decision-making. It’s also why we’ve started to hear Senate Republicans murmur about how America is not, in fact, a “democracy.”

Americans aren’t clueless: Polls suggest significant majorities support the ACA and reproductive freedom, and they want to wait to fill this seat until after the election. The effort to force an unpopular agenda down the throats of a country already in turmoil, while pretending this is an ordinary Senate proceeding about a handful of policy questions, won’t just harm the Senate’s long-term credibility. It also damages the legitimacy of the court and democracy itself. That harm, too, is a phenomenon that cannot be easily captured in soundbites or tweets. When public confidence in democracy is gone, it doesn’t always come with an audible snap. What’s about to be lost won’t come in the form of a viral video this week. We may miss it as it happens on the Senate floor, but it will become the real story of these hearings. Whether the press can capture the enormity of what’s at stake is almost irrelevant. The public already knows the magnitude of the losses it faces, even if its representatives won’t tell them.