Amy Coney Barrett Hearings: Grandstanding at Its Worse

Pundits and Democratic strategists considered advising Democratic senators to boycott the confirmation hearings as a means of protesting the nomination of Judge Barrett to the Supreme Court. I never thought for a second a boycott would happen and it did not. Hams at heart, the senators could not turn down an opportunity to grandstand and make campaign speeches on national television.

Confirmations hearings have little or no purpose other than to offer free media time for politicians and to indulge hopes that the nominee will stumble and say something silly. Sen. Amy Klobuchar (D-Minn.) admitted as much in her remarks: “Let me tell you a political secret: I doubt that it will be a brilliant cross-examination that’s going to change this judge’s trajectory this week.” In other words, Barrett is qualified for the position, the chance of her tripping is unlikely (she didn’t), and the hearings won’t reveal much of value (they didn’t).

One of the low points came when Sen. Cory Booker (D-N.J.) demanded that the nominee (and mother of two black children) denounce white supremacy. Booker was working to keep up the narrative of the current cultural revolution: it’s not the leftist radicals burning and looting in the streets that endangers the country, but “institutional” or “systemic” racism of the media, police departments, and colleges. Booker also tried to spin the tale that the president refuses to denounce white supremacy. Of course, Trump has. After Charlottesville, Trump unequivocally stated: “Racism is evil. And those who cause violence in its name are criminals and thugs, including the KKK, neo-Nazis, white supremacists, and other hate groups that are repugnant to everything we hold dear as Americans.”

Sen. Mazie Hirono (D-Hawaii) tried to outdo Booker by asking Barrett if she had ever sexually assaulted someone. Of course, there was no good faith basis for such a question–no one has ever alleged that Barrett has.

Sen. Sheldon Whitehouse (D-R.I.) used his 30 minutes to preen for the cameras and use slides to protest against the vast right-wing conspiracy that is the Federalist Society and associated conservative groups. He never asked Barrett one question.

In some respects, the Sheldon Whitehouse strategy was smart. The less time Barrett had to speak to issues of judicial philosophy and the role of the courts, the better off the Dems were. For example, here is some commonsense from Judge Barrett’s opening statement:

Courts have a vital responsibility to enforce the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try.

This is heresy to progressives who view the courts as an end run around the political process. It is much easier to convince five Platonic Guardians of a desired policy result than do the hard work to persuade the people and legislators.

Of course, there are times when courts must strike a popular legislative program because it is alien to the Constitution. In a 2017 law review article, Judge Barrett rightly criticized the legerdemain of Chief Justice Roberts in saving Obamacare:

Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power.

(For those needing a refresher on the constitutional issues surrounding Obamacare, here is a short piece I did in 2015.)

If Barrett is confirmed, she will participate in arguments on November 10 about the constitutionality of the Affordable Care Act. Since the 2017 Tax Cut and Jobs Act (TCJA) went into effect in January 2019, the “penalty” (or “tax,” if you are Chief Justice Roberts) has been waived and the government is receiving zero revenue from it. Hence, multiple states are arguing that the ACA is unconstitutional since the taxing power cannot save it.

As the ACA case demonstrates, Judge Barrett could have an immediate impact on high-profile cases once she takes her seat. The coming days, and the move to a vote of the entire Senate, will be interesting to watch.