The full day of endless verbiage was not so much about Barrett as it was about how fetid the exercise has become.
Trump has devoted significant energy to blustering and tweeting about the sorts of judges he would nominate as president, and he has been forceful in his certainty that his choices would abide by his will. His desires include dismantling the Affordable Care Act, defending gun ownership as a right essentially without limits and overturning Roe v. Wade. Just recently, he has added another job to his wish list, one that helps to explain the urgency of these hearings: having a ninth justice on the bench in time to rule in Trump’s favor on any lawsuits that might arise from an election in which polls have him trailing and in which people have already begun voting.
As Sen. Richard J. Durbin (D-Ill.) said to Barrett in his opening statement, “Your nomination comes under a cloud.”
It was more like a thick layer of smog, and the stink was fierce.
“You condemn white supremacy, correct?” said Sen. Cory Booker (D-N.J.), as he began his questions.
“Yes,” Barrett responded. And Booker looked relieved.
This hearing was not normal. The nomination smelled. Barrett had to explain to the committee that she had made “no commitment” to the White House about how she would rule on Trump’s pet subjects. She had made no illicit bargain in exchange for the nomination, she said. She was not there to impose her personal will — or Trump’s — on the court. “I’ll follow the law,” she said. And she described herself as all about process, collegial conversation and digging into the details of disputes. Yes, all that sounds good, but … will you commit to recusal from any disputes arising from the presidential election, asked Sen. Christopher A. Coons (D-Del.)? Even where there is the appearance of bias, Coons pressed. “I will consider all factors that are relevant to that question,” Barrett responded. Coons looked unsatisfied.
Barrett comported herself with calm and focus and answered the day’s questions without binders or folders full of files. She spoke in flat tones and refrained from clogging her answers with legal jargon — speaking more to the home audience than the men and women in the room. She wore a raspberry-colored jacket with a jewel neckline with a matching skirt — or perhaps it was a dress. The point is that she looked professional and modern, studiously rejecting any aesthetic attempt to blend into the drab, masculine landscape.
Her self-control was on display as she refrained from any wayward glances or expressions of exasperation as some on the committee used their first 30-minute round of questioning to offer a soliloquy on the right to the freedom of religion or the sanctity of the Second Amendment. Sen. Mike Lee (R-Utah) spent the bulk of his time railing against the fearmongering of Democrats who have warned that Barrett’s confirmation poses a risk to abortion rights and the Affordable Care Act. And yet, it’s the Republicans very opposition to those things that has them racing to confirm Barrett before the election.
Sen. Ted Cruz (R-Tex.), fresh from self-quarantine for exposure to the novel coronavirus, used the bulk of his time to decry “radical” Democrats. Once he had blown through the deep cauldron of righteous indignation he’d brought for the occasion, he reassured Barrett that she didn’t need to respond to his diatribe. Instead, he ran down the clock and asked her if she spoke any foreign languages. (French, she said, but not well.) Did she play any musical instruments? (The piano.) What was it like staying at home during the pandemic with seven children? (Challenging.) Why did she and her husband adopt two children from Haiti? (A long story.)
Barrett’s reserve was a notable contrast from Trump’s last nominee, Brett M. Kavanaugh, who, in the face of an accusation of sexual assault, shouted out a statement in his own defense with such vigor that there was actual spittle visible on his lips. Barrett was questioned on her public antiabortion statements, her criticism of Chief Justice John G. Roberts Jr.’s logic in upholding the ACA in 2012 and her writings on gun control. She remained unflustered. Republicans opted to be outraged on her behalf.
Indeed, it was mostly the Republicans on the committee who raised their voices in anger, even though they hold the majority of the votes. Barring some bombshell, Barrett is likely to be confirmed. Even when Republicans are winning, they’re mad.
They can’t leave well enough alone. They couldn’t stop spotlighting her personal life as evidence of the sort of justice she would be, even as they stood ready to attack any liberal who suggested that her personal life choices — such as her religion — are evidence of the sort of justice she would be.
Sen. Josh Hawley (R-Mo.) tried to get her to wax warm and fuzzy about what it means to be the White parent of Black children. She demurred, reminding him that her life experiences and beliefs “don’t dictate how I decide cases.”
Barrett was bipartisan in her refusal to connect the dots from her family to bigger social issues that come with policy proposals attached to them. When Durbin asked her how she personally reacted to George Floyd’s death, she evoked her status as the parent of Black children and described shedding tears and struggling to explain what happened to him to her younger children. But she would not say whether she believed in the existence of systemic racism when the question was posed by Durbin. Barrett was only willing to acknowledge that racism exists; discrimination is bad.
Several senators have voiced nostalgia for the days when justices with as wildly differing legal philosophies as Antonin Scalia and Ruth Bader Ginsburg were confirmed with overwhelming bipartisan support. It might be noted that Ginsburg was forthright in responding to the committee’s questions. She was notably clear about her support of abortion rights. Barrett hopped around the subject like she was dancing on hot coals.
No one really expected her to explain her thinking on Roe v. Wade — or race or the peaceful transfer of power. Certainly not the Democrats. Their questions were not exactly perfunctory, but they were asked with only the thinnest wisp of optimism that they might be answered. And a stubborn hope that the stink could be blown out of the room.