In confirmation hearings for Amy Coney Barrett’s appointment to the SCOTUS, the line of questioning pursued by Democrats on the Senate Judiciary Committee was a combination of a university philosophy professor’s hypothetical quizzing of students, along with some of the most embarrassing questions from the old TV game show, The Dating Game.
Despite the efforts of Democrats to “trap” Barrett during two days of Q&A, the likely successor to Ruth Bader Ginsburg’s seat on the high court consistently relied upon the “Ginsburg Rule” in handling the onslaught. “Justice Ginsburg, with her characteristic pithiness, used this to describe how a nominee should comport herself at a hearing: ‘No hints, no previews, no forecasts’,’’ said Barrett. She cited this quote repeatedly throughout the trial, as Senate Democrats pushed her to answer questions on the Constitutionality of various real and hypothetical rulings.
“That had been the practice of nominees before her, but everybody calls it the Ginsburg Rule because she stated it so concisely, and it’s been the practice of every nominee since,” she added.
When Senator Richard Blumenthal (D-CT) asked Barrett if she believed it would be constitutional to criminalize IVF procedures, she reposed by saying “Senator I’ve repeatedly said, as has every other nominee who sat in this seat, that we can’t answer questions in the abstract that would have to be decided in the course of the judicial process with a case. Some legislature would actually have to do that. And then litigants would have to come to court. There would have to be briefs, and arguments, and consultation with colleagues, and opinion writing, and consideration of precedent. So, an off-the-cuff reaction to that would just circumvent the judicial process,”
Hypothetical questions like Blumenthal’s were repeated numerous times throughout the hearing.
Senator Diane Feinstein (D-CA) tried to have her “gotcha” moment with Barret by confronting her with “do you agree with Justice Scalia’s view that Roe was wrongly decided?”
Barrett responded by saying that she could not give “a thumbs up or thumbs down” to individual cases, saying “it would actually be wrong and a violation of the canons for me to do that as a sitting judge. So if I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another in a pending case.”
This pattern remained consistent throughout all three days.
Judge Barrett is not Justice Antonin Scalia, no matter how much the Senate Dems want her to be
Barrett finally snapped back on day three of the hearing after repeated suggestions from Senate democrats that she was a female clone of her mentor, the late Justice Antonin Scalia, responding to Sen. Chris Coons’ (D-DE) allegation of such by saying “I have already said, and I hope that you aren’t suggesting that I don’t have my own mind or that I couldn’t think independently… I assure you I have my own mind.”
Barrett also repeatedly assured the Committee that “if I were confirmed, you would be getting Justice Barrett, not Justice Scalia.”
She emphasized this point when Senator Feinstein asked her if she agreed with Justice Scalia that the US Constitution does not afford gay people the fundamental right to marry. “So I don’t think that anybody should assume that just because justice Scalia decided a decision a certain way, that I would too, but I’m not going to express a view on whether I agree or disagree with Justice Scalia, for the same reasons that I’ve been giving,”
This is about Trump
Senate Democrats openly acknowledged that their real concern is with the fact that Barrett was selected by Trump, not with Barrett herself, one even going so far as to suggest that Trump’s intentional selection of Barrett somehow disqualifies her.
“So I’m not suggesting that you’re callous or indifferent to the consequences if the Affordable Care Act is overturned, you know that these are real cases and I think you’re a sympathetic person,” said Leahy. “But I do believe that the President selected you because he wanted somebody with your philosophy, and he had a reason for it.”
Sen. Amy Klobuchar (D-NY) peppered Barrett with questions about her knowledge of Trump’s feelings surrounding Obamacare.
“Did you have then a general understanding that one of the President’s campaign promises was to repeal the Affordable Care Act when you were nominated?” Klobuchar asked.
When Barrett answered that this was common knowledge, Klobuchar asked “So is the answer yes, then?”
“You’re suggesting that I have animus, or that I cut a deal with the President. I was very clear yesterday that that isn’t what happened,” Barrett answered.
People and anecdotes as “legal arguments”
Barrett was quick to note the sheer foolishness of at least one question that had seemed to escape the slightly less intellectual Senator doing the asking.
“Judge Barrett, so are you saying that all of the stories that we brought forth yesterday and the millions of people who are relying on the Affordable Care Act can rely upon you that those impacts would be considered by you, that you would consider those to be legal arguments that you would consider?” asked Sen. Mazie Hirono (D-HI). “Because when you say that you’re going to make a decision based on the law, the real-life stories that we’ve been talking about, you would consider those to be part of the law?”
Barrett was succinct and rational in her response that left the Senator’s question for dead, lying on the chamber floor. “As I was saying earlier, no case comes before a court unless it involves real life people who’ve had a real life dispute, and it is the job of a judge deciding every case to take into account the real world consequences of the parties before it.”
It was Senator Hirono who also asked Barrett during Tuesday’s hearing the ridiculous questions about her sexual conduct in the workplace.
Overall, the first three days of the Barrett hearings had the general feel of an adult being forced to play student in front of a class of grade schoolers. Nothing took place to derail the likely confirmation of Barrett to the SCOTUS.
A Judiciary Committee vote is scheduled for October 22, with the Senate schedule to act on the nomination October 23.