Democrats Failed the Barrett Hearings

And we will not understand the gravity of that failure until it is too late.

A white woman in a red sweater holds up a blank notepad and smirks.
Supreme Court nominee Judge Amy Coney Barrett holds up her empty notepad on the second day of her confirmation hearing on Capitol Hill on Tuesday. Susan Walsh-Pool/Getty Images

How do you brace for a foregone conclusion? Specifically, how do you metabolize a choreographed takeover masquerading as a legitimate proceeding? This week, each American dealt with the Amy Coney Barrett event in their own way. For those who are pleased the judge is ascending to the bench, there was smug celebration. Fox News rhapsodized over the judge’s motherhood and allegedly “angelic” voice. Many Democrats and progressives, sensibly realizing that Brett Kavanaugh’s confirmation had been horrifying enough, avoided watching entirely. If even that performance didn’t disqualify a nominee and change the outcome, why subject oneself to sitting through another? We all know what this hearing was: a sham from beginning to end. Amy Coney Barrett’s nomination to a stolen Supreme Court seat began with a superspreader event at which Republicans gleefully celebrated before falling ill. It consisted largely of the nominee refusing to answer questions as basic as “can the president unilaterally deny women the right to vote” and concluded with Democratic Sen. Dianne Feinstein hugging a maskless Republican Sen. Lindsey Graham (who’d just illegally solicited campaign donations in a federal building, trashed committee rules to fast-track a nominee with three years of experience as a judge, and refused to get tested for COVID-19). For the people who had tuned in anyway, it felt like the masochistic finale we deserved: Graham literally endangered her life, but Feinstein ended things by praising him for presiding over “one of the best set of hearings that I’ve participated in.”

Feinstein’s pronouncement was a final, and jaw-dropping, demonstration of how little this hearing mattered. For those who had the self-respect to tune out, maybe it was another justification for that choice. For those watching, the hug crystalized that there is a difference between Democrats saying the process was illegitimate and doing anything about it. Many senators used their time to say that the hearing was a joke. Sen. Richard Blumenthal said, “I believe that this rushed, sham process is a disservice to our committee,” adding that Barrett “has been rushed in a way that is historically unprecedented.” Sen. Cory Booker gave an impassioned speech noting the same. Sen. Dick Durbin spoke eloquently to the nihilistic pointlessness not just of this proceeding but of the hearing generally. He lamented the “denigration of the process to the point where it’s almost useless. We’ve reached the point now where gifted, experienced jurists, legal scholars take that seat behind the table and then deny everything. Refuse to answer anything. When Sen. Feinstein asked the nominee if a president could delay an election, she couldn’t answer. Too political. Too political? Three express provisions in the Constitution that spell out that that is the standard for the United States of America?”

This is what Feinstein called “one of the best” hearings she’s participated in. And while there has been reporting on the senior senator’s declining state, she’s far from alone. Some Democrats are still—as a literal Republican supermajority is installed at the expense of the American voters who are even now waiting hours in line to make their wishes known—unable to acknowledge the gravity of what happened this week. The Democrats in power don’t seem to realize that even if they can’t do anything to stop the outcome, they could at the very least appoint a committee leader who would correctly channel some of their constituents’ entirely justified rage. They did not. Democrats failed: They are not adequately messaging that this power grab is massively consequential, that any legislation a Democratic majority might pass—not just the Affordable Care Act—could be easily struck down by a 6–3 court as a result. And so a small but growing sliver of Democratic voters have conceded, exhausted, that Barrett should be confirmed. Perhaps they did so after witnessing the “normal” features of an abnormal process. Perhaps they did so because they realize there is no alternative. Foregone conclusions aren’t great for democracy.

As for Barrett, she was a cipher by her own choice. She was calm, undramatic, and astonishingly uncooperative. This last one is bad! Americans have a right to know about a person who will wield extraordinary power over them for the rest of her life! It no longer qualifies as bad conduct for a prospective justice, however—having managed not to scream that her ideological opponents would “reap the whirlwind” for daring to question her, she cleared a very low bar. And, having failed to shock an America that has acclimated to Trumpian cattle prods, she will take the bench and begin a new era in conservative jurisprudence, the gravity of which Americans will not understand until it is too late.

This is a hard problem to make clear; it isn’t easy to make a woman’s claims that offering her opinion is “inappropriate” legible as the aggression it is. Durbin tried: “What are we dealing with here? We’re not dealing with the reality of who this person is and what she believes but some of artifice we have constructed between the nominee and our questions. I’d be afraid to ask her about the presence of gravity on earth.” But it made little difference.

The best symbol of Barrett’s nomination is the blank sheet of paper she held up, in lieu of notes, to Republican acclaim. Some found it impressive that the nominee to a lifetime appointment to the highest court in the land hadn’t prepared adequate notes—perhaps they found Barrett’s inability to name the five freedoms listed in the First Amendment charming too. But the gesture reflected Barrett’s effort to present herself as a kind of tabula rasa. She’s only been a judge for three years (three years!), so her record is conveniently slim, and as she refused to answer question after question, her one refrain was “I have no agenda.” She insisted, sometimes quite bizarrely, on blankness when there was perfect evidence of her actual views—sometimes even evidence that she had failed to disclose.

Ultimately, Amy Coney Barrett is a blank check Republicans have written to themselves—backed by an extraordinary amount of dark money, as Sen. Sheldon Whitehouse pointed out. Barrett’s blank expression belongs to a politics of blankness that extends to the GOP’s shameful surrender to Trump. They didn’t even bother articulating a 2020 platform, saying it would be whatever Trump wants. But all those blanks add up to a pretty knowable plan. After all, Amy Coney Barrett worked on the Republican side of Bush v. Gore (along with Kavanaugh). We know precisely how she feels about courts deciding the presidency, and in whose favor. We know how she feels about abortion and access to health care and workers’ rights and immigrants’ rights and everything else. Her views are precisely the views that unidentified billionaire donors have paid millions of dollars to install on the court and inflict on everyone else.

The cost of her nomination ought to be extremely high. As Durbin put it, Republicans “are going for this nominee at any price, at any cost, and one of them is the integrity of this committee.” It might not turn out to be high at all. A lot of people are too focused on the election to pay attention to this scripted play of a proceeding, and Democrats did very little to upend that script in ways that would spark enough political resolve among Democrats to undo what Mitch McConnell has just done. Barrett did her part: She sat there and stayed calm and politely explained why she could not offer an opinion as to whether (for example) the president can unilaterally deprive women of the right to vote. She did what she needed to do: She failed to stand out. And Feinstein, in whose interest it was to do otherwise—to flag, constantly and unerringly, that this proceeding was illegitimate—did the opposite. She called it one of the best hearings, broke social distancing guidelines, and closed a nomination that began with a superspreader event by hugging the opposition maskless. She couldn’t have done more to normalize a hostile takeover. Perhaps it’s fortunate that not many people tuned in to watch a proceeding whose outcome was obvious before it even began. But that—for the GOP, in whose interest it is that this happen swiftly and quietly—is a win too.

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