Barrett: What her cagey responses revealed
Amy Coney Barrett’s Supreme Court confirmation hearings “were a frustrating charade,” said Ruth Marcus in WashingtonPost.com. With Senate Republicans certain to secure an overpowering 6-3 conservative majority on the court, Barrett dodged every substantive question Democratic senators asked. Still, even in Barrett’s evasions, she provided some “chilling” insights into how she will rule on the court. Tellingly, she refused to say whether landmark cases on same-sex marriage, contraception, and abortion had been decided correctly, declining to classify them as “super-precedents” like Brown v. Board of Education. Barrett wouldn’t even say whether she agreed with the 1965 Griswold ruling that established that married couples have a right to privacy that includes obtaining contraception. Asked about climate change, said Jack Holmes in Esquire.com, Barrett replied, “I would not say I have firm views on it.” What? That is the response of someone neck-deep in rightwing skepticism of the overwhelming evidence that man-made emissions are changing the climate. Despite her cagey responses, Barrett revealed herself to be a far-right conservative whose path to the court was paved by the Federalist Society and “hundreds of millions of dollars in dark money,” as Sen. Sheldon Whitehouse (D-R.I.) put it. Conservatives know exactly what they’re getting by putting Barrett, 48, on the court for life.
Barrett “played the game” as liberals designed it, said Rich Lowry in NationalReview.com. Since Senate Democrats rejected Ronald Reagan’s nominee Robert Bork in 1987 after he testified as his “brilliant and provocative” self, nominees have understood the price of candor. Ruth Bader Ginsburg, whose seat Barrett will fill, “set the standard” in 1993, refusing to “comment on matters that might come before the court.” Although Barrett wouldn’t discuss hypothetical cases, said Jonathan Turley in The Wall Street Journal, she very openly explained how she’d decide them—by adhering to originalist judicial philosophy. The Constitution should be interpreted by examining what it was originally understood to mean, she said. “That meaning,” she said, “doesn’t change over time, and it isn’t up to me to update or infuse my own policy views into it.” Other conservative justices call themselves originalists, but the “unabashedly conservative” Barrett could become the most devoted practitioner since her mentor, Justice Antonin Scalia.
In her brief tenure as a federal appeals court judge, said Dahlia Lithwick in Slate.com, Barrett used originalism “to expand gun rights, limit abortion protections, and undermine the rights of workers, asylum seekers, and immigrants.” Despite its claim to political neutrality, originalism inevitably produces “profoundly conservative legal outcomes.” It benefits those in power: white, wealthy, Christian men. “Ginsburg’s constitutional approach,” in contrast, sought to “broaden the notion of equality to include marginalized, powerless, forgotten” groups. Stacking the federal judiciary with originalists, said Ronald Brownstein in TheAtlantic.com, creates a “firewall” against “the diverse, urbanized Democratic coalition that will make it very difficult for the GOP to win majority support in elections through the 2020s.” Joe Biden will likely win the popular vote this year, meaning “Democrats will have captured the most votes in seven of the past eight presidential elections,” but the Supreme Court’s six conservatives likely will control the court—and negate Democratic initiatives—for a decade or more.
The only way for Democrats “to win this game is, in fact, to play it,” said Jamelle Bouie in The New York Times. The Constitution gives Congress the power to add as many seats to the Supreme Court as it wants, and if Democrats take the Senate and the White House, they should make use of their power to rebalance the court in their favor. Since Barack Obama was elected president, Republicans have “torched” norms to secure the federal courts: filibustering dozens of Obama’s nominees, refusing to hold hearings for Obama’s pick to replace Scalia, and now confirming Barrett weeks before Election Day. And how did the GOP justify this ruthless gamesmanship? By pointing out that the Constitution allowed it. Fine. For Democrats to hold themselves to a higher standard “would be to accept defeat.”
History suggests packing the court would backfire spectacularly, said Steve Chapman in the Chicago Tribune. After President Franklin Roosevelt tried in 1937 to add justices who would approve his New Deal programs, an outraged American public voted out 72 Democratic House members and seven senators in 1938. Even if Democrats win a narrow Senate majority this year, moderate Democratic senators “would refuse to go along” with court packing, embarrassing the Biden administration while leaving the court untouched—and likely “more hostile.” To regain control of the Supreme Court, Democrats must win election after election. “If they’re not ready for a long game, they have no business playing.”