If Supreme Court nomination hearings are thought of as quasi-judicial proceedings to determine whether someone deserves to spend decades on the nation’s highest legal bench, it was clear well before Tuesday morning, when Amy Coney Barrett started taking questions from the members of the Senate Judiciary Committee, that this hearing would be a “sham”—the term that Senator Amy Klobuchar, Democrat of Minnesota, used to describe it on Monday. In this era of permanent political warfare, loyalty to party and President long ago trumped the “advice and consent” clause in Article II of the Constitution, which granted the U.S. Senate the exclusive right to approve or reject treaties and judicial nominations.
Absent some sensational new revelation, such as the allegations of sexual assault that Christine Blasey Ford levelled at Brett Kavanaugh, in October, 2018, nomination hearings these days tend to be bloodless affairs. Citing the need to preserve their independence and maintain an open mind, the nominees point-blank refuse to say anything about the most consequential cases that they are likely to be called upon to decide, and the senators, robbed of any real judicial function, resort to giving political speeches. Some of Tuesday’s hearing fell into this depressing pattern. And with Mitch McConnell, the Senate Majority Leader, seemingly having the fifty-one votes needed for Barrett’s confirmation in his pocket, it was robbed of political tension. Make no mistake, the rushing through of Barrett’s nomination four years after McConnell denied even a hearing to Barack Obama’s nominee Merrick Garland is an antidemocratic heist of historic dimensions—a point I emphasized when the news of her nomination broke. But this is a crime that the cops—McConnell and his Republican colleagues—aren’t merely in on: they are planning and executing it. Success is virtually guaranteed.
This being so, the main point of interest on Tuesday was Barrett’s performance, and whether she would be able to maintain the convenient fiction that, if elevated to the Supreme Court, she will behave like a baseball umpire, calling balls and strikes without any regard to her personal feelings. “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try,” she said in her opening statement on Monday. If the former Notre Dame law professor had donned a black polo shirt and M.L.B. hat, the messaging couldn’t have been more plain.
She adopted the same stance on Tuesday morning. “Let me be clear, I have made no commitment to anyone—not in this Senate, not over at the White House—about how I would decide any case,” she told Senator Patrick Leahy, the octogenarian Democratic warhorse of Vermont, who had the temerity to suggest that Donald Trump would be counting on her vote to strike down the Affordable Care Act in a case that is scheduled to come before the Court a week after the election. During a cordial back-and-forth, Senator John Cornyn, Republican of Texas, asked Barrett if she agreed with the late Antonin Scalia, whom she clerked for and has cited as her role model, that good judges, in their faithfulness to the letter of the law and its original intent, sometimes reach decisions that they don’t like. “I do agree with that,” Barrett replied. “That has been my experience on the Seventh Circuit so far.”
Despite Barrett’s evasiveness, her Democratic interlocutors did highlight some of the prior associations and expressions of belief that she was so keen to downplay. Leahy got her to acknowledge that, in 2006, she signed a public letter from St. Joseph County Right to Life, an Indiana anti-abortion group, which, in some of its other literature, had taken the position that in-vitro fertilization is equivalent to manslaughter. Barrett said that she signed the letter, which she had failed to disclose in the materials she sent to the committee, “almost fifteen years ago quickly on my way out of church” and hadn’t been aware of the group’s other materials, a point she repeated later in the hearing. Leahy also quizzed Barrett about a lecture she gave to the Blackstone Legal Fellowship, a Christian program run by an ultraconservative organization called Alliance Defending Freedom. “Were you aware of the A.D.F.’s decades-long efforts to recriminalize homosexuality?” Leahy asked. Barrett replied, “I am not aware of those efforts, no.” These expressions of ignorance were jarringly at odds with the voluminous knowledge and instant recall she displayed in many of her other answers.
It was Senator Dick Durbin, the veteran Democrat of Illinois, who got to the crux of the matter, which is that Barrett’s legal opinions are much more closely tied to her conservative political beliefs than she lets on. After grilling the judge about her attitude toward the A.C.A., and not getting very far, Durbin brought up the brutal police killing of George Floyd. Initially, it seemed like he had made a political error. Referring to the horrible video of a Minneapolis police officer kneeling on Floyd’s neck until he lost consciousness, Barrett, who has two adopted Black children, said, “Senator, as you might imagine . . . that was very, very personal for my family.” She went on to say that “racism persists in our country,” before adding that how to remedy it was a policy matter.
Durbin then changed tack, or so it seemed, and asked Barrett about a lengthy dissent she wrote in a 2019 case, Kanter v. Barr, in which she argued that the state of Wisconsin didn’t necessarily have the right to issue a law banning someone who has committed a nonviolent felony from buying firearms: it needed to show that such laws help keep the public safe, and that the individual concerned—in this case, Rickey Kanter, an entrepreneur who had been convicted of mail fraud for bilking Medicare out of millions of dollars—had a proclivity for violence. “Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment,” Barrett wrote.
In bringing up this dissent, Durbin pointed out that even Scalia himself, in District of Columbia v. Heller, a landmark Supreme Court Case on gun rights from 2008, had said the Second Amendment didn’t preclude the government from preventing felons and mental patients from purchasing firearms. (“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” Scalia wrote, in the majority opinion.) Addressing the empirical basis of Barrett’s dissent, Durbin also brought up a study which found that many nonviolent offenders are subsequently arrested for violent felonies. “The evidence is there,” he said. “You ignored it.” Barrett, momentarily appearing to lose a bit of her sangfroid, replied, “Senator, I didn’t ignore it.”
Durbin then brought the conversation back to race. In Barrett’s 2019 dissent, he pointed out, she had also drawn a distinction between the “individual right” to own a gun under the Second Amendment—a deeply dubious interpretation in itself—and the “civic right” to vote, which, toward the end of the Reconstruction era, and indeed up to this day, many southern states had systematically undermined as it applied to African-Americans by, among other things, banning felons from voting for their entire lives. “So you are saying that a felony should not disqualify Rickey from buying an AK-47, but using a felony conviction from someone’s past to deny them the right to vote is all right?” Durbin asked Barrett.
Barrett repeatedly sought to parry Durbin’s thrusts. The Constitution “contemplates” the option for states to ban felons from voting, she said. “But I expressed no view on whether that was a good idea, whether states should do that.” In noting a difference between individual rights under the Second Amendment and the civic right to vote, she was merely making a distinction that was consistent with the language used in earlier cases, including the Heller case, she insisted. Durbin pressed her further, though. He suggested that the very act of countenancing a distinction between the right to vote and the right to bear arms “goes back to the original George Floyd question” about systemic racism. Barrett blinked and said, “Senator, the Supreme Court has repeatedly said that voting is a fundamental right, and I fear that you might be taking my statement in Kanter out of context.”
As the hearing proceeded, there were other interesting exchanges between Barrett and the Democratic senators, but the one with Durbin was the most telling of all. Although the Illinois senator didn’t fully penetrate the judge’s armor, he did succeed in illuminating the deeply conservative legal philosophy that lies behind her aw-shucks demeanor. In the Kanter v. Barr case, she substituted a tendentious reading of the Constitution for a straightforward reliance on the need to keep guns out of the hands of criminals. And instead of simply applying the Heller precedent law, like the good textualist she claims to be, she came up with a new distinction between felons and violent felons. “It’s saying, when we say felony, we just mean ‘violent felony.’ Well the word violent isn’t in there, but you found, or at least found reference to it,” Durbin pointed out.
That’s what activist judges do. Given Barrett’s background, and her fealty to the legacy of Scalia—“His philosophy is mine, too,” she told Senator Mike Lee, Republican of Utah—there is every reason to believe that she will turn out to be a conservative activist on the Court. Not that she will ever admit to this, of course. Deciding cases is sometimes hard and complicated, she said toward the end of her questioning by Durbin. “But to the extent, Senator Durbin, that you’re suggesting I have some sort of agenda on felon voting rights, or guns, or campaign finance, or anything else, I can assure you, and the whole committee, that I do not.”