NUNZIATA: The Democrats’ Attacks On Originalism Fell Flat During The Barrett Confirmation

Gregg Nunziata Contributor
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When President Trump announced his intention to swiftly fill the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg, commentators fretted that a Supreme Court confirmation fight in a heated election season would plunge the nation into more vitriol and conflict than it could bear.

Yet, less than two months later, the Senate has voted to confirm Judge Amy Coney Barrett — to become Justice Barrett — and it hardly feels like the confirmation process has been the dominant news story of the season. Rather than the high drama, conflict and chaos of the Kavanaugh hearings and other recent judicial nominations fights, this historic confirmation has played out (relatively) quietly, orderly, almost even respectfully.

Democrats, of course, objected to the idea of filling the vacancy. Given the fact that they have been aggressive belligerents in the judicial wars for decades, it’s hardly credible that they are truly scandalized by the timing, or that they would have behaved differently if the shoe were on the other foot. Nonetheless, largely on this objection, they’ve managed some half-hearted actions designed to display their displeasure but powerless to delay the inevitable. They’ve engaged in irresponsible rhetoric suggesting there’s something illegitimate about the president and the Senate performing core Constitutional functions. What they conspicuously failed to do, however, is to make a case that Judge Barrett was not worthy of confirmation.

If the Senate judged nominees on qualifications, character and fitness alone — which it largely did until Joe Biden led Senate Democrats in applying ideological litmus tests to Judge Robert Bork — there could be no question that Judge Barrett deserved confirmation. Democrats did not try to make the impossible case. No doubt, the danger that any seeming personal attacks on Judge Barrett could have a negative electoral impact in the looming election played a role.

What is remarkable, though, is how tepid the criticisms of Judge Barrett’s legal philosophy ultimately were. Over three decades since the Bork experience taught Republicans that their judicial nominees best have limited paper trails, the Senate is confirming a judge who has been explicit about her originalist judicial philosophy inspired by her former boss, Justice Antonin Scalia. She has made it clear that she stands with millions of Americans who oppose abortion as a matter of her personal policy preference and conscience. Policy preferences should not drive judicial philosophy, as Judge Barrett clearly testified at her hearings, but not long ago we might have thought that either her explicit originalism or her personal political preferences would trigger vicious opposition.

The fact that a nominee with the judicial philosophy and apparent personal views of Judge Barrett can today be confirmed without apology is a tribute to the success of the conservative legal movement. Largely caught blindsided in the Bork fight, conservatives have spent decades building to this confirmation by, among other things, making their case. The central proposition they have put before the public is that it is the duty of a judge to apply the law as written, not to serve as philosopher kings pursuing their own vision of what is best for Americans by legislating from the bench. Judges play an important, but sharply limited role in our system.

In the years since Bork’s defeat, not only has conservative legal philosophy won a seat at the table, it has won the public debate. Of course, originalism still has its critics on the bench and in the academy. Progressive politicians and celebrities can disparage it in bad faith or ignorant tweets. But Democrats still do not have an answer to it, much less an alternative vision. They have no principled case for an activist judiciary, or at least not one they are willing to offer in public.

When Senate Judiciary Democrats attempted to engage in the debate over judicial philosophy with Judge Barrett, what emerged from the dais was an incoherent amalgam of appropriated conservative talking points and liberal policy preferences. They thundered about the importance of stare decisis — the practice of respecting past precedents — but in the next breath, celebrated cases where the progressive wing of the Supreme Court showed no such respect. They pressed Judge Barrett to hold sacrosanct court decisions cherished by progressives; but also heaped contempt on decisions they disliked, such as those to do with Second Amendment rights and political spending. They tried to repurpose Republican language, expressing concern about “activist judges”, “legislating from the bench” and pushing policies through the courts which could not win legislative majorities. (This is an apt description of the Left’s decade’s long campaign in the courts, particularly on social issues, not anything reflected by Judge Barrett.)

One simply cannot distill this into anything representing an understanding of the role of judges in our government. At most, it amounted to a vague sense that the courts should produce policy results progressives like. Indeed, Senate Democrats revealed themselves by repeatedly peppering Judge Barrett with naked policy questions, particularly regarding healthcare. As she responded to one of her interlocutors: “I can’t take policy positions or express my personal views before the committee, because my personal views don’t have anything to do with how I would decide cases.”

This is a clear vision of the proper role of the judiciary. It is what Justice Antonin Scalia and other judicial conservatives have argued for decades. It’s succinct, understandable, and in harmony with our Constitution. It’s why Americans supported Judge Barrett’s confirmation by a wide margin.

In the end, it is perhaps not surprising that Democrats chose to boycott the committee vote on Judge Barrett. Instead of attending to debate the merits of the nomination, they sent in their place cardboard photos of sympathetic Americans with preexisting health conditions. When you don’t have an answer, sometimes the best political options you have are to walk away or change the subject.

Gregg Nunziata is an attorney in Washington and former Chief Nominations Counsel to the Senate Judiciary Committee.