Jurisprudence

Did Democrats Blow the First Day of Amy Coney Barrett’s Confirmation Hearings?

Supreme Court Justice nominee Judge Amy Coney Barrett is sworn in during the Senate Judiciary Committee confirmation hearing for Supreme Court Justice on Capitol Hill on October 12, 2020 in Washington, DC. With less than a month until the presidential election, President Donald Trump tapped Amy Coney Barrett to be his third Supreme Court nominee in just four years. If confirmed, Barrett would replace the late Associate Justice Ruth Bader Ginsburg. (Photo by Kevin Dietsch - Pool/Getty Images)
Supreme Court Justice nominee Judge Amy Coney Barrett is sworn in during the Senate Judiciary Committee confirmation hearing. Pool/Getty Images

Mark Joseph Stern: I turned on C-SPAN this morning hoping for fireworks from the Democrats. This confirmation process is a disgrace. We all know Republicans are blatantly violating their 2016 “rule” against Supreme Court confirmations in an election year. We all know Trump is ramming Barrett through at an unprecedented speed so she can throw him the election. We all know Barrett is a troll nominee designed to frustrate and humiliate Democrats who adored RBG. But I didn’t hear about any of that very much. I heard about the Affordable Care Act. Will holding up pictures of Americans helped by the ACA do anything?

Dahlia Lithwick: I think Democrats did better than expected. They stayed on message, they focused on an issue that polls strongly in their favor, and they didn’t step on any landmines. Every local TV broadcast will have a senator talking about losing healthcare in a pandemic. And any time you have Republicans bloviating about process instead of Dems sputtering about process is a win. Boycotting the hearings would have come across as a 15-minute stunt. This, coupled with Sen. Cory Booker’s “nothing about this is normal” speech, ceded no ground and left no vacuum.

Mark: I hear you. I agree that a boycott wouldn’t have worked. But if a normie American who doesn’t pay much attention to the news watched on Monday, would they understand, from Democrats’ comments, how egregious and hypocritical and dangerous and unprecedented these hearings are? Didn’t all this talk about the ACA just normalize a deeply abnormal process?

Dahlia: I agree the aperture felt narrow—why limit it to ACA when the whole administrative state is on the line? But I think the enormity of what is coming is hard to process; it’s hard for you and I to process and we live this. I don’t know how you say, “the Koch/Federalist Society project is about to detonate democracy! Goodnight and good luck.” So the ACA became the template. Sens. Klobuchar, Booker, and Harris were particularly good at straddling the “this process sucks but here we go” line.

Mark: Right. How do you explain to the American people in a few minutes that Barrett threatens the entire progressive project? That her confirmation will clinch a far-right majority on SCOTUS that will impose harsh, undemocratic GOP policies on the country for another half-century? How do you get regular people to grasp the horrors just around the corner—the total evisceration of the Voting Rights Act, the abolition of reproductive autonomy, the end of LGBTQ equality, the gutting of labor and environmental regulations. It’s too overwhelming, too abstract. So Democrats yoked themselves to the ACA.

Dahlia: I also find that when Republicans are howling about injustice heaped on the head of poor Brett Kavanaugh, they may be missing out on why they are losing women.

Mark: Poor Brett Kavanaugh! Whatever happened to that guy?

Dahlia: I get it’s the party line now, but really, “poor Brett Kavanaugh” plus “we weren’t lying in 2016, so much as we are lying now” doesn’t feel like a plan, does it? Which also raises the whole “down with democracy” line from Republican Sen. Mike Lee. I guess slagging democracy is the new Benghazi?

Mark: I see Republicans’ turn against democracy as a bet against the future. They can read the polls. They know there’s a real chance that Democrats win the presidency and both houses of Congress in November. If that happens and Democrats don’t expand the Supreme Court, we are going to see the federal judiciary stymying the Democratic agenda at every turn. Why? Because Trump installed a far-right justice at the last second. Republicans have now positioned themselves to defend this anti-democratic judicial domination by saying, who cares? We aren’t a democracy. It doesn’t matter that the minority party is still controlling the country through the courts. That’s how it’s supposed to be! Read the Federalist Papers, baby!

Anyway, we just wrapped day one. Tomorrow will be worse, especially when Republicans try to frame Barrett as a victim of rampant bigotry—a martyr, really. Josh Hawley already implied that merely bringing up Griswold v. Connecticut is anti-Catholic bias, right?

Dahlia: Yup. He said: “I just heard my colleague Sen. [Chris] Coons make a reference to an old case—the Griswold case—which I can only assume is another hit at Judge Barrett’s religious faith, referring to Catholic doctrinal beliefs. This is the kind of thing I’m talking about and this is the sort of attacks [sic] that must stop.”

Mark: In Griswold, the Supreme Court ruled that married couples have a constitutional right to access contraception. It’s a key constitutional foundation for Roe v. Wade; there’s no coherent constitutional theory that deems Griswold valid and Roe invalid. But Republicans know they’re much better off attacking abortion than contraception. They’re scared of that conversation. They’re scared to admit that if Roe falls, Griswold must fall, as well.

Hawley lives in a perpetual state of aggrieved victimhood. He claims that the United States has been overrun by evil, bigoted secularists out to strip faithful Christians of their constitutional rights. We saw him perform this act when he tanked a Trump-appointed judicial nominee for defending an LGBTQ nondiscrimination ordinance.

According to Josh Hawley, merely supporting equal rights for gay and lesbian Americans is anti-Catholic bigotry. So of course bringing up Griswold v. Connecticut is also anti-Catholic bigotry. Hawley accused Coons of anti-Catholic bigotry—which, lol, CHRIS COONS—because he needed to shut down that conversation. I guess calling somebody anti-Catholic is the right-wing version of saying “you’re cancelled, sweetie.”

Dahlia: Yes, a bit of protesteth too much. I was fascinated by all the ghosts of non-attacks. This proceeding was anti-Catholic, anti-feminist, anti-Scalia, and also anti-Kavanaugh. And the poor Dems were not doing more than asking for masks and protection for preexisting conditions. Don’t forget Judge Barrett had signed those letters about life starting at fertilization, which puts in vitro fertilization and surrogacy on the table as well.

Mark: Absolutely. And as you know, Sarah Pitlyk—whom Trump placed on a federal district court, then on his SCOTUS shortlist—fought IVF and surrogacy as a lawyer before becoming a judge. Barrett came up in the same legal circles as Pitlyk. The logical conclusion of the belief that life begins at fertilization is that fertilized eggs are people, which means IVF (which involves disposal of embryos) is murder. But again: Republicans know they’re much better off attacking abortion than IVF. There’s a lot of opposition to abortion in America. IVF? Not so much. But American families who depend on IVF should absolutely be frightened of a Justice Barrett.

Dahlia: I wonder what you thought of Barrett’s statement, about how she reads each of her opinions through the eyes of the losing party. As you have written, the losing party tends to be the prisoners, the Black worker, the teen seeking abortion, the asylum seeker. It reminded me of Justice Samuel Alito testifying at his hearings about his great solicitude for immigrants.

Mark: Barrett’s opening statement made me think about one of her worst decisions (so far), in which she approved the deportation of an asylum seeker because there were small, trivial variations in his account of persecution. Over a dissent, Barrett said, yep, this asylum seeker must be sent home to be tortured and murdered because tiny details in his story changed over time. Would a judge who views the case through the eyes of the asylum seeker really dismiss his claims so cavalierly? I doubt it.

Dahlia: Yes, I thought the same. So, will we hear more about Roe tomorrow do you think? So far it’s been 95 percent ACA. Or have the Dems been frightened off by Josh Hawley’s umbrage over even thinking the word “Griswold” in public spaces?

Mark: I think we will hear more about election stuff tomorrow. Democrats have decided to try to make Barrett promise she’ll recuse herself from election-related litigation since Trump has openly declared that he wants her to throw him the election. Of course, Barrett won’t do that, but Dems appear to think it’s effective messaging. On Roe, I really don’t know. Gorsuch and Kavanaugh both said they respected abortion precedent, including Whole Woman’s Health. Then in July they both voted to overrule Whole Woman’s Health. So what’s the point? These nominees just lie through their teeth to get what they believe they deserve.

Dahlia: I do think that tying Barrett to all the stupid crap Trump has promised is a good idea. Not just throwing him the election and ACA cases but she should also be asked: “Would you prosecute Joe Biden for treason?” “Do you think Trump was lying when he said you would overturn Roe automatically?” “Do you think the DOJ should be defending Trump’s slurring of a rape victim as part of his job description?” I know she can’t answer but why does she get to just swan away from Trump after he puts her in a box? Why not ask her legal opinion of whether Josh Hawley was right to promise he wouldn’t support her unless she overturns Roe? Abstract academic discussions are, as you say, places she can say whatever. But brazen political pledges from everyone in town about how her votes are in the bag? Make her explain.

Mark: Yes. I’d also like to see somebody just read Trump’s comments about SCOTUS throwing him the election and ask her what she thinks he meant. Dems can draw her away from the legal side of things, where every answer is just “I can’t say,” and force her to confront the harsh political truth that she was nominated by a corrupt criminal con man.

Dahlia: I will say that one reason I would wager that Americans may be receptive to arguments about a minority-majority Senate forcing through a minority-majority president’s handpicked nominee to foster yet more minority rule is one I just thought of. As you keep noting, Americans aren’t just already voting. They are standing in lines to vote. They are seeing fake drop boxes and drop boxes removed and precinct closures. It’s not just that we are 23 days from an election. Its that every day there is evidence that this party doesn’t want your vote to count, doesn’t see you and doesn’t care what you think. That’s not just standard-issue voter suppression, it’s crazy IRL minority rule. Maybe voters can already feel in their bones what the end game is here? Both at the court, in the Senate, and at the polls? Maybe they can see already that this isn’t an abstraction?

Mark: If voters can really see that this isn’t an abstraction, that Republicans have decided that they have a God-given right to rule the country no matter how few people actually vote for them, then that’s a good first step. But it won’t matter unless they understand how we got into this nightmare and how we get the hell out. Republicans played constitutional hardball. They suppressed the vote. They blocked Merrick Garland and scores of other Obama nominees. Then they stacked the court with hardcore partisan ideologues approved by the dark money network known as the Federalist Society.

Democrats cannot simply vote their way back to normalcy. You don’t defeat hardball with softball. And I’m worried that if Democrats run the table in November, they’ll think, OK, we’ve addressed Republicans’ despotic detestation for democracy, now everybody will follow the rules again. But that’s not how it works, because Republicans now control the judiciary, and they will keep changing the rules until they’ve hoisted Republicans back into power across the federal government. So if Democratic senators can get ONE point across in these hearings that doesn’t involve the ACA, I hope it is this: If Amy Coney Barrett is confirmed, it doesn’t matter how big Democrats win in November. They are doomed—democracy is doomed—if they do not respond with proportionate hardball.