By Neera Kuckreja Sohoni
If the Senate Judiciary Committee hearing of Supreme Court nominee Judge Amy Coney Barrett indicates anything, it is how a subject specialist can easily prevail over less informed elected representatives. Time after time, answering question after question, what came through was Barrett’s scholarly brilliance, her mastery of her field of jurisprudence, along with her clear, fluent articulation. To lay observers such as this writer, she appeared to rattle off legal cases and contexts with an ease with which a precocious two year old recites numbers from one to ten. Unlike Senators who mainly spoke from prepared written scripts, she had no papers to consult and no congressional aide to jolt her memory. Absent any notes to which all but her seemed to be referring, when an overawed Senator Cornyn asked her to show her notepad, all it exposed was a blank screen except for the date and venue of her hearing!
Her mastery over facts was as evident as over her emotions. Almost throughout she kept a steady gaze and a calm, collected demeanor listening patiently to whatever was being hurled at her and responding without condescension, derision or sarcasm. To their credit, the Senators mostly remained civil, barring some unprofessional encounters such as Senator Hirono’s disgusting query probing the nominee about sexual misconduct. “Since you became a legal adult,” Hirono pompously asked, “have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature?” That Barrett remained unprovoked speaks more to her grace as to the sheer absence of it in the Senator posing that question. Hirono by the way has a history of indecorous conduct as seen in a press conference during the infamous Judge Kavanaugh hearings, in which she felt comfortable barking out an order to men to “just shut up and step up”. Falsely assuming the high moral ground, she added, “Do the right thing for a change”, a plea apparently for her to make to others but never good enough for her to follow.
In another instance, Senator Klobuchar proceeded to grill Barrett over her criticism of Chief Justice Roberts for his majority decision in 2012 that deemed the Affordable Care Act’s individual mandate as constitutional. She asked if Barrett had criticized Roberts for pushing “the Affordable Care Act beyond its plausible meaning to save the statute”, to which Barrett’s cool rejoinder was that she does not “attack people, just ideas”.
In a telling moment, when Senator Feinstein poked her implying she had some kind of agenda to overrule one or the other cases on which the Court had ruled, Barrett replied she has no other agenda than “to stick to the rule of law and decide cases as they come.” Later, expanding on her understanding of her role as a judge, Barrett emphasized to Senator Graham, “Judges cannot just wake up one day and say, ‘I have an agenda — I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world.” Repeatedly, she drew on the constitutionally mandated separation of powers whereby laws are made by Congress, implemented by the Executive, and interpreted by the Courts.
There were similar ‘passive-aggressive’ questions posed by men and women Democrat Senators, with Senator Booker using the least acceptable line of attack – the race card. Following the overwhelming impact of Black Lives Matter and resulting protests both peaceful and violent, racial injustice and racial bias have become legitimate concerns. (That Booker was assigned this task or volunteered to do so in itself could be deemed questionable as possibly a race-based choice). Starting right off the bat with his offensive question asking Barrett if she condemned White Supremacists, and hearing her say yes, Booker regretted that Trump was unable to say so in equally resolute terms, a bewildering backhanded way to compliment or implicate the nominee depending on how one views it. The last one to fire a volley was Senator Kamala Harris, Democratic nominee for vice president, but her questions, much like her presence in a separate chamber where she chose to sit so as to remain protected from the Coronavirus, created no ripples. That she used the majority of her allotted time to present the Biden-Harris campaign stump speech that had little to do with the nominee made her input at once dull and negligible.
Regardless of the questions posed, friendly or unfriendly, Barrett fielded them with equanimity and patience. Her intellect and ability to articulate give her confidence, which thankfully does not appear to make her haughty or condescending towards the less informed and gifted.
Like all nominees before and possibly after her, she determinedly stayed away from answering specifics on how she would view or rule over hypothetical cases, or speak to the fairness or lack of it of rulings in past cases. That Barrett’s steady refusal to be entrapped into substantive issues, delve into past or current or prospective cases and rulings, or forecast how she would rule in any or all of them, expectedly caused much heartburn among Democrat Senators. Their impatience over Barrett’s heavy reliance on the Ginsburg approach seemed more peevish than substantive. It is a natural outcome and manifestation of the duplicity inherent in party politics, which leaves us wondering how either party deems their nominee to be honorable for the same conduct as they deem the opposing party’s nominee dishonorable.
It is the job of Senators to probe how judicial nominees feel and get them to commit to stating opinions they can then use against their confirmation, but this is an old ball game at which both parties have become seasoned players. The more pointed the question, the less specific the response. This practice of ducking of which Senators accuse Barrett may be and is frustrating but it is integral to the politics of every nominee’s confirmation. Nominees hardly ever project their future judicial conduct and what one has to rely on is only their past jurisprudence. The best defense in Barrett’s favor and what she readily used was what the holder of the seat which she is seeking to fill – Justice Ruth Ginsburg – succinctly said in her own confirmation hearings, “No hints, no previews, no forecasts”. Known as the Ginsburg rule, this has since been invoked by subsequent judicial nominees to the Supreme Court to their advantage.
Though unable to go aggressively after Barrett’s religious beliefs, unlike what they did during her last hearings when Senator Feinstein openly accused Barrett that “the dogma lives loudly within you” and “that is a concern”, this time around, Democrats are being cautious and choosing to lay off frontal attack on religion. Instead, they went after her judicial autonomy, based on their perception of her as a prisoner of her faith and therefore opposed to birth control, abortion, and detrimental to women’s and LGBTQIA (Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual) rights.
In this latter line of attack, more than her Catholic bias, they tended to charge her with some kind of political commitment made to President Trump as a quid pro quo for her nomination to the highest court in the land. Repeatedly, through their questions and lengthy prefaces, Democrat Senators established that being appointed by a Republican president is what is causing them their ulcers. Democrats inferred that her nomination by Trump was to use her as a nuclear option for torpedoing the Affordable Care Act – a beloved legacy of Obama. They sought specific commitments from Barrett on how she would vote or if she would commit to recuse herself from a case scheduled to be heard by the Supreme Court in early November where her participation they felt would be damning, given that her views are pre-known and likely to be prejudicial. In response, she firmly informed Feinstein,”I can’t pre-commit or say yes, I’m going in with some agenda, because I’m not.” “I have an agenda to stick to the rule of law and decide cases as they come.” Making no promises to rule one way or another, she defended her integrity in no uncertain terms when she answered, “I’m not willing to make a deal — not with the committee, not with the President,” and the clincher, “I’m independent.”
Barring any major handicapping judicial opinions and academic writing, or other prejudicial facts as may surface in the next few days, Judge Barrett is on her way to being approved later this month for a lifelong tenure at the highest court. She should know that as many as oppose her confirmation, those who support it are in greater numbers.
Neera Kuckreja Sohoni
Ms Sohoni is a freelance writer and published author.