MALCOLM: Reflections On The Amy Coney Barrett Confirmation Hearings

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John Malcolm Contributor
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After four comparatively civil and calm days, the Supreme Court confirmation hearing for Judge Amy Coney Barrett is over. Barring some last minute revelation, her confirmation seems inevitable.

First, the obvious. The Democratic senators could not lay a glove on Barrett regarding her legal acumen, qualifications or character; they didn’t even try.

In her opening remarks, Barrett stated: “I try to remain mindful that, while my court decides thousands of cases a year, each case is the most important one to the parties involved. After all, cases are not like statutes, which are often named for their authors. Cases are named for the parties who stand to gain or lose in the real world, often through their liberty or livelihood.”

This says much about her character. In both her judicial opinions and in her personal life — as colleagues and law clerks attested in Thursday’s session — Barrett is thorough, reasoned and sensitive.

Some senators tried mightily to box in Barrett by getting her to comment on which Supreme Court precedents she likes (and would presumably uphold) and which ones she doesn’t (and would presumably seek to overturn). As expected, Barrett did not bite. Instead, she cited prior statements by Democratic nominees at their confirmation hearings.

There was Elena Kagan’s statement: It would be “inappropriate for a nominee to ever give any indication of how she would rule in a case that would come before the Court. And I think, too, it would be inappropriate to do so in a somewhat veiled manner by essentially grading past cases.”

She also quoted Ruth Bader Ginsburg: “It would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. … A judge sworn to decide impartially can offer no forecasts, no hints, for that would not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

Frustrated by such responses, Democratic senators expressed dismay and their belief that Barrett poses an existential threat to precedents they like, such as Roe v. WadeObergefell v. Hodges and even (improbable as it may seem) Griswold v. Connecticut.

In stark contrast to Barrett’s 2017 confirmation hearing, the Democratic senators avoided the pitfalls of talking about Barrett’s faith. Realizing that they could not stop the process or derail her ultimate confirmation, they instead stressed the themes they wanted to stress — threats to the Affordable Care Act, abortion rights, gun control and the influence of “dark money” in politics — both for purposes of this hearing and in light of the forthcoming election.

Using past tweets by President Trump about his desire to overturn Roe, invalidate the Affordable Care Act and have a full complement of Justices on hand in case there is an election dispute, the Democrats also sought to suggest that the fix is in. Barrett rejected that narrative, repeatedly assuring the senators that she had not been asked, nor did she promise, how she would rule in any particular case.

Regarding the upcoming election, Sen. Amy Klobuchar, D-Minn., went so far as to suggest that it seemed more than coincidental to her that Trump had nominated three justices who had worked on behalf of President Bush during the Bush v. Gore litigation. This prompted a rare look of surprise by Barrett, who replied, “Senator Klobuchar, if you’re asking me whether I was nominated for this seat because I worked on Bush v. Gore for a very brief period of time as a young associate, that doesn’t make sense to me.”

Klobuchar’s insinuation struck me as far fetched, too. I thought of Warren Burger, Harry Blackmun, Lewis Powell, Stephen Breyer, Ruth Bader Ginsburg, Neil Gorsuch and Brett Kavanaugh – all of whom ruled against the president who had appointed them in cases involving whether a president was immune from civil suit while in office (Clinton v. Jones, 1997) and whether a president could be compelled to produce White House tapes (U.S. v. Nixon, 1974) and his financial records (Trump v. Vance, 2020).

For those interested in learning something about constitutional law and the judicial process, the hearing offered some enlightening exchanges about originalism, living constitutionalism, textualism, stare decisis, severability, substantive due process, the Second Amendment and a whole lot more. These discussions provided clear insights into how Barrett has performed as a judge on the 7th Circuit and how she would perform as an Associate Justice on the Supreme Court.

We also learned a lot about the character of the nominee not only from the myriad supporters who sent letters and who testified on her behalf, but from the nominee herself. Barrett testified poignantly about the tears that were shed and ongoing discussions she is having with her mixed-race family after the killing of George Floyd.

In describing her life, she stated: “I’ve made distinct choices. I decided to pursue a career and have a large family. I have a multiracial family. Our faith is important to us. All of those things are important to us, but they are my choices. … I have a life brimming with people who have made different choices, and I have never tried in my personal life to impose my choices on them, and the same is true professionally. I apply the law.”

When asked why she – or anybody, really – would put herself and her family through such an ordeal, Barrett replied:

“I’m committed to the rule of law and the role of the Supreme Court in dispensing equal justice for all. I’m not the only person who could do this job, but I was asked, and it would be difficult for anyone. So why should I say someone else should do the difficulty? If the difficulty is the only reason to say no, I should serve my country. And my family is all in on that, because they share my belief in the rule of law.”

For that, we owe a debt of gratitude to Judge Barrett and to her family.

Throughout the entire process, Judge Barrett was patient and poised — a model of judicial temperament — and her answers were thoughtful, scholarly, and informative. After her first day of questioning, she said, “I did have a glass of wine, I will tell you that I needed that at the end of the day.” After watching her performance over the past several days, all I can say to that is, “I’ll have what she’s having.”

A Heritage Foundation vice president, John Malcolm leads the think tank’s Institute for Constitutional Government.