Bench Memos

Law & the Courts

Amid the Celebration, a Cautionary Note About the Democratic Playbook

Ranking Member Sen. Dianne Feinstein (D-CA) questions Supreme Court nominee Judge Amy Coney Barrett during her confirmation hearing on Capitol Hill, October 14, 2020. (Bonnie Cash/Pool via Reuters)

It has been a long month since President Trump announced Amy Coney Barrett’s nomination to the Supreme Court. Her confirmation should be celebrated as a victory for constitutionalism and the rule of law. But we should keep in mind a cautionary note about the Democrats’ Supreme Court playbook.

From the moment Justice Ruth Bader Ginsburg died, Senate Democrats kept throwing spaghetti at the wall to see what would stick and keep the seat on the Supreme Court open. Of course, their entire M.O. when it comes to the third branch of government is to use courts as vehicles for policy, so when they were not making scurrilous procedural arguments against filling the seat, they saw no reason not to double down and talk policy. During the Senate Judiciary Committee’s hearings, they asked and repeated innumerable questions that the nominee, under longstanding tradition that prominently includes Justice Ginsburg’s hearings in 1993, should not have been expected to answer about issues that may come before the Court.

Barrett’s hostile questioners veered far off her actual record in an attempt to depict her as a threat to healthcare, racial equality, voting rights, and democracy itself. That fell flat, as was especially clear when Senator Richard Durbin’s questioning on police brutality and race evoked the nominee’s story of how she “wept together” with her black daughter in reaction to the news of George Floyd’s death.

As bad as the innuendo and barrage of loaded policy questions were, however, the hearings did not sink to the level of abuse the nation witnessed during the Brett Kavanaugh nomination. Nor did Senators Dianne Feinstein, the Judiciary Committee’s ranking member, or Durbin reprise their notorious questioning of Barrett’s faith during her 2017 hearings for the Seventh Circuit.

In fact, at the end of the hearings, Feinstein thanked Chairman Lindsey Graham for “one of the best set of hearings that I’ve participated in” and praised his “fairness,” which left her with “a lot of hopes.” And just before leaving the hearing room, still unmasked, she hugged the chairman. Covid, shmovid.

For much of the Left, such civility and all it represented is inexcusable. (Perhaps they find such kindness as unacceptable as conservatives found slandering Brett Kavanaugh as a gang rapist.) Demand Justice and other groups called for Feinstein’s removal as the lead Democrat on the Judiciary Committee. Senate Democratic leadership listened. Minority Leader Chuck Schumer had what he described as “a long and serious talk with Senator Feinstein.”

We shall see what that means for Feinstein’s future. For now, Democratic numbers could not prevent Barrett’s nomination from advancing to a confirmation vote. What is clear is that going forward, the Democratic playbook will regress from today’s grandstanding to the even more sordid past. The Judiciary Democrats’ boycott of the committee vote and Schumer’s apocalyptic rhetoric against the legitimacy of what he called a “sham vote” lay out the beginning of the argument for packing the Court in the future.

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