There are two kinds of judicial confirmation hearings. One kind involves the nominee giving eloquent yet evanescent answers designed to sound like they’re saying something profound when they’re really saying nothing at all. The other kind involves the nominee going out of their way to say nothing, offering terse and combative non-responses and thereby unintentionally telling the Senate Judiciary Committee everything it needs to know.
On Tuesday, Amy Coney Barrett put the country through the latter type of confirmation hearing. She refused to answer even basic questions about the rule of law, acted like her own articles and decisions were written by someone she had never met, and, instead of clarifying her positions, tried to gaslight the committee into thinking her positions do not exist.
It’s not unusual for a judicial nominee to be evasive about how they would rule in an upcoming case about a “hot button” culture war issue. But Barrett was evasive about things that should never be up for debate. Senator Cory Booker asked her whether a president should commit to the peaceful transfer of power—Barrett wouldn’t answer. Senator Diane Feinstein asked her if a president could unilaterally delay a general election—Barrett wouldn’t answer. Senator Amy Klobuchar asked her if voter intimidation was illegal—Barrett wouldn’t answer. And when Klobuchar followed up with the actual federal statute prohibiting voter intimidation, Barrett still wouldn’t say that voter intimidation is illegal.
These were softball questions. It takes nothing for a nominee to support the basic concept of the rule of law. It takes nothing for a judge to say, “That statute, which you just read to me, is good law, Senator.” The fact that Barrett wouldn’t do so is probably why Trump is so eager to put her on the Supreme Court before the current election. Even among the set of craven bigots and torture apologists Trump has nominated to the federal courts, finding someone who won’t demand the peaceful transfer of power is rare. I can see why Trump likes Barrett. She’s exactly the kind of person he needs to help him steal the election, and her confirmation should be opposed on the basis of those non-answers alone.
But Barrett’s election dodges weren’t the only disqualifying parts of her performance. Her non-answers on other issues were equally extreme—and terrifying. She simply did a slightly better job muddying the waters when refusing to talk about her other positions. When not being coy about whether democracy should exist, Barrett attempted a number of legal sleights of hand to hide her true beliefs.
Like a bad magician, though, she gives away her tricks if you slow down the act. Let’s go through Barrett’s three most important evasions during her hearing, so nobody is fooled about why Republicans want her on the court before the election.
The Affordable Care Act: In a 2017 law review article, Barrett questioned the constitutionality of the Affordable Care Act, specifically praising Justice Antonin Scalia’s dissent against the law and criticizing Chief Justice John Roberts’s decision arguing that the ACA’s individual mandate is a constitutional tax. The article, and Barrett’s views about the ACA, came up repeatedly during the hearings, in the context of California v. Texas, the fresh challenge to the ACA that is due to be argued in front of the Supreme Court on November 10. Democrats accused her of prejudging the case.
Barrett did the usual thing of refusing to make a statement about a case that she could potentially hear as a Supreme Court justice, which is fair. But to square her prior writing with her claimed impartiality about the current case, Barrett claimed that California v. Texas involved different issues than the ones she had written about previously. She said the new case primarily involved whether the individual mandate could be separated (the legal term is “severability”) from the rest of the ACA, in the event the mandate is ruled unconstitutional.
It’s true that the current case deals with the question of severability, but what Barrett didn’t want to tell the committee was that the issue of severability comes up only if the court rules that the individual mandate is unconstitutional in the first place. The constitutionality of the individual mandate is the first question the court will look at in the upcoming case; the issue of what can be done should it be ruled unconstitutional is the secondary question. And on that primary question, Barrett has already made up her mind. In fact, while trying to deflect from her article railing against the individual mandate, Barrett repeatedly referred to the individual mandate as if it was a thing that has already been ruled unconstitutional. Senator Chris Coons did a very good job of exposing this weakness in her logic during his time.
If Ginsburg had lived, there may have been five votes on the Supreme Court to uphold the constitutionality of the individual mandate. The only reason Barrett can act like the individual mandate is already dead is because she’s the one who has been sent to kill it.
If the Republicans had nominated somebody who is actually open-minded about the issue, it’s possible that the court would not even get to the severability question that Barrett claims to have an open mind about.
Under expert questioning from Senator Kamala Harris, Barrett admitted that she was nominated to her current job on the US Court of Appeals for the Seventh Circuit mere months after she wrote her article calling the individual mandate unconstitutional. I wonder why.
Roe v. Wade: Barrett is the nominee most hostile to Roe v. Wade since the decision was handed down, at least that I can remember seeing or reading about. She’s written about how abortion is wrong, criticized Roe, and tried to overturn pro-choice and abortion-access cases that have come into her circuit.
Those views, and that animosity, did not disappear at her confirmation hearing. Barrett came as close to saying she would overturn Roe as one can get without literally spelling it out. She was given numerous opportunities to defend the basic concept of a women’s right to choose, as Ruth Bader Ginsburg did at her confirmation hearings. She declined. She was given numerous opportunities to say that a woman’s right to choose was protected in the Constitution. She refused.
Instead, she tried to make Roe sound like it wasn’t an important precedent. She did this by referring, in contrast, to “super-precedents,” a class of cases that should never be overturned, and declined to put Roe on her list of such cases. Now, even in the world of legal jargon, where lawyers often use terms of art that are opaque to non-lawyers, super-precedent is a uniquely meaningless phrase. In legal scholarship, super-precedent is supposed to refer to some old case that has become so ingrained into our understanding of the law that no judge would think to overturn it, even if they actually disagreed with the old case.
In reality, precedents are good until they’re not. There’s no case that becomes inoculated from reversal simply by the passage of time. Plessy v. Ferguson, the case that invented the “separate but equal” doctrine allowing racial segregation, was “good law” for nearly 60 years. The systematic oppression of free Black people was the basis for the entirety of post–Civil War Southern society; it was relied upon by mediocre white man after mediocre white man to give them an unearned sense of pride; it was a “super-precedent,” until Brown v. Board of Ed. came along and threw it away.
There are no super-precedents. There are merely precedents. Some judges think that precedents have to be respected unless something has significantly changed in the law or in the society at large since the earlier case. Other judges, like Barrett, believe that precedents can be discarded if you simply don’t like them. Barrett has written that a judge who finds precedent to be in conflict with the Constitution should throw out the precedent.
At the hearing, Barrett referred to Brown as a super-precedent, something no judge would overturn, and no lawmaker would try to overcome. (I’ll note that Republicans acting like nobody would try to bring back segregation while their president talks about keeping the suburbs safe from “Cory Booker” is as offensive as it is ignorant.) But she refused to accord Roe the same made-up respect. Barrett argued that the mere fact that people keep trying to take down Roe was proof that Roe has not attained the same hallowed status as Brown.
By parsing that as a distinction, Barrett was simply laying the groundwork for her eventual opinion overturning Roe. She’s saying that she can overturn Roe merely because she doesn’t like it but wouldn’t overturn Brown, even if she disagreed with it. It’s like saying, “All animals should be protected, except the tasty ones. Sorry, cow.”
Barrett will overturn Roe v. Wade if she gets a chance. She wasn’t even really trying to hide it at her hearing. She was trying to justify it.
Recusal: Since Barrett was so obviously anti-Roe, anti–health care, and anti-free-and-fair-elections, multiple Democratic senators asked her if she would recuse herself from upcoming cases. It’s a reasonable request. Barrett wants to be confirmed after an election has already started, by a president who has openly said that he wants the Supreme Court to “look at the ballots” and is all but sure to sue should he lose that election. It makes all the sense in the world for his handpicked nominee to recuse herself from those immediate cases in which the man who nominated her has a vested interest.
Barrett refused to commit to recusing herself, and she tried to hide behind a law to justify that appearance of corruption. She cited 28 U.S.C. 455 as the statute governing recusals. She said she would consult with and comply with that law.
The problem is, as Barrett knows, Supreme Court justices cannot functionally be held accountable under that law. The recusal law applies to federal judges, which would seem to include Supreme Court justices, but nobody can actually force Supreme Court justices to recuse themselves. Nobody can force a Supreme Court justice to do pretty much anything. The justices serve for life and can be removed only through the impeachment process. Absent that, nothing can be done to force them to comply with any moral or ethical standard. We know this from the Brett Kavanaugh saga: A panel of judges threw out 83 ethics complaints against the alleged attempted rapist because no existing authority can punish a sitting Supreme Court judge.
Barrett knows that the only thing that can get justices to recuse themselves is their own conscience. Near the end of the hearing, Kamala Harris finally made her admit to it. Harris got Barrett to admit that it was in Barrett’s sole discretion whether to remove herself from a case.
Even after the admission, Barrett refused to commit to it. She said she’d have to go through a “process” to determine if she should recuse. That answer would seem fair-minded if calendars didn’t exist. It is the middle of October. Republicans are trying to rush through this process and have Barrett confirmed by the end of next week. After that there will be, at most, 10 days until the election. The legal process of contesting the election will likely start the next day. The ACA case will be argued a week after that.
Nobody is asking Barrett to make a far-off guess about what she might do in some theoretical future. They’re asking her what she’s going to do in three weeks. It’s simply not possible or credible for Barrett to have no answer about what she might do, in a situation that is left to her sole discretion, over the next three weeks.
Barrett, we were constantly reminded, is a mother of seven. As a parent myself, I can guarantee that she could tell us what she’s going to dress up as for Halloween. But she can’t tell us if she will engage in the corrupt process of deciding the outcome of the election involving the president who nominated her a few days later? Come on. Who honestly believes she doesn’t know what she’ll do?
Like I said, by refusing to answer these questions, Barrett has already told us everything we need to know. She won’t recuse herself, because she doesn’t think voter intimidation is illegal, and she won’t commit to asking the president to peaceably transfer power. She’s already decided to crush the ACA and Roe v. Wade should she get a chance.
Barrett is here to do a job. That job is not to be an impartial arbiter of cases and controversies. That job is to help Trump and the Republican Party push their antidemocratic agenda through the courts. And she admitted to all of it, right out in the open, to those who were listening closely.
The greatest trick the devil ever pulled was convincing the world he didn’t exist. Luckily, Amy Coney Barrett isn’t slick enough to pull that off.