Bench Memos

Law & the Courts

Once Again, Distortions and Sideshows Don’t Work for the Democrats

Supreme Court nominee Judge Amy Coney Barrett testifies on the third day of her U.S. Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, D.C., October 14, 2020. (Jonathan Ernst/Reuters)

Senate Democrats appear to realize that Judge Amy Coney Barrett’s credentials are impeccable and her record unimpeachable. So on day three of her hearings, they reverted to distorting the records of other judges, as well as lengthy tirades concerning a confusing hodgepodge of topics.  Senator Mazie Hirono even appeared to suggest that she opposes the constitutional separation of powers, criticizing as artificial the time-honored distinction between law and policy.

As Senators Ted Cruz and Joni Ernst noticed among others, the Democrats spent very little time on Judge Barrett’s actual record.  Instead, they projected onto her misrepresentations of Justice Scalia’s philosophy and attributed these to Judge Barrett as though she were the same person.  Senator Chris Coons, for instance, mentioned the 1996 dissent by Justice Scalia in United States v. Virginia to suggest that Barrett will oppose women serving in the military.  Multiple senators implied that because Scalia voted one way on an Obamacare case eight years ago, Barrett would decide any case on any issue relating to the ACA the same way today.  These attacks, made mostly by the Democratic men on the committee, were demeaning to Judge Barrett, who has consistently stressed her independence and her commitment to giving everyone a fair hearing.

When they weren’t using misrepresentations of Justice Scalia’s record to paint Judge Barrett as an extremist, Democrats returned to familiar talking points.  Senator Richard Durbin asked whether a president has the power to deny a person the right to vote on the basis of race.  Barrett responded that the Fourteenth and Fifteenth Amendments clearly prohibit such discrimination on the basis of race.  Barrett also repeatedly emphasized that the right to vote is a “fundamental” and “critical” right.

Yet bizarrely, Senator Durbin implied that Judge Barrett believed President Trump could suppress voting rights, saying that it “strains originalism” to “decline to acknowledge” the importance of the right to vote, even though the judge explicitly acknowledged it seconds earlier. Barrett calmly replied that it would “strain the [judicial] canons of conduct” and “would strain Article III” to “offer off-the-cuff reactions or any opinions outside of the judicial decision-making process.”

Senator Richard Blumenthal pressed Judge Barrett to pre-commit to rule on a litany of social issues.  When she declined, the senator from Connecticut baselessly claimed that Judge Barrett opposed a right to contraceptives and in vitro fertilization, warning that “millions of women, potential parents, would be horrified” by her responses. Senator Coons similarly suggested that “virtually every aspect of American life” is under threat if Judge Barrett is confirmed. Again, she showed her judicial temperament, politely and firmly responding to these wild attacks. She held to the Ginsburg standard and at one point flatly told Blumenthal, who was particularly aggressive in badgering her to violate it, “You’re pushing me to violate the judicial canons of ethics and to offer advisory opinions, and I won’t do that.”

Senator Sheldon Whitehouse returned to his favorite conspiracy theory: that a mysterious cabal of “dark money” donors were secretly remaking the judiciary to further their own special interests. “The Democratic dark money efforts dwarf the Republican dark money efforts,” Senator Cruz retorted, “which is why, without a twinge of hypocrisy, Democratic members make this charge repeatedly.” Cruz then told the story of Jack McConnell, who contributed about $500,000 to Democratic political causes, including $12,600 to Whitehouse’s campaigns, before becoming a judge thanks to Whitehouse’s influence. He made recent news sitting on the Committee on Codes of Conduct, which earlier this year made an abortive attempt to muzzle the Federalist Society with Whitehouse spearheading a group of senators supporting the effort.

But despite all such distractions, distortions, and melodramatically dire predictions of how a Justice Barrett will be an enemy of voting rights, minorities’ rights, healthcare, the climate, and the freedoms of the American people, the senators eventually acknowledged the truth. Senator Dianne Feinstein admitted that she was “really impressed” by Judge Barrett’s command of the law, while Senator Blumenthal noted that the judge stated “very well” that “nobody is above the law.” Indeed, no honest observer of these proceedings could conclude anything other than that Judge Barrett is a remarkably capable, independent, and competent jurist. Not to mention an exceedingly patient Senate witness.


The Latest