The Corner

Law & the Courts

Sheldon Whitehouse Again Abuses the Judicial Confirmation Process

Senator Sheldon Whitehouse (D., R.I.) questions judicial nominees during a hearing before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., December 4, 2019. (Joshua Roberts/Reuters)

At Vanity Fair, Bess Levin pretends that she believes that Amy Coney Barrett is in favor of executing women who get abortions. Levin writes:

All of which makes one of her nonanswers to a written follow-up question from Senator Sheldon Whitehouse extremely chilling. Specifically, the one in which she says, “As a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals” in response to the question “Under an originalist theory of interpretation, would there be any constitutional problem with a state making abortion a capital crime, thus subjecting women who get abortions to the death penalty?”

Obviously, claiming that she can’t answer hypothetical questions has been Barrett’s schtick throughout this entire process and, in some instances, it might actually be appropriate to say as much. But not when the question is “can a state sentence a woman to death for getting an abortion,” unless of course she thinks there might somehow be a scenario in which the answer is yes!

This is enormously dishonest, and Levin knows it. Barrett adopted the same approach in her hearing as did Ruth Bader Ginsburg in 1993: She refused to answer hypotheticals or to speculate as to how she would rule in future cases. Barrett took this approach seriously, not least because she is obliged to by the rules that govern her conduct as a sitting judge on the Seventh Circuit Court of Appeals. As such, she refused to answer hypotheticals that were pleasant in nature and hypotheticals that were not.

Knowing this, the Democrats chose to play some appalling games with Barrett. The question that Levin cites here — from Sheldon Whitehouse, naturally — is a great example. Whitehouse knew full well that Barrett wouldn’t answer a hypothetical question, and so he contrived to ask her an absolutely ridiculous one so that he and his friends in the press could pretend that her silence amounted to consent. And it worked. The headline on Levin’s piece is “Amy Coney Barrett Sees a Scenario in Which Abortion Should Be Punishable by Death.” This is a lie, but many people will see it and believe it. Which, of course, is the point.

Had he so wished, Whitehouse could have asked Barrett if she believed that “Under an originalist theory of interpretation, would there be any constitutional problem with a state inviting sadistic aliens down to torture puppies?” and then, when she refused to answer, relied upon his friends in the media to scream, “Amy Coney Barrett Sees a Scenario in Which Aliens Should Torture Puppies.” And they wonder why the justices don’t want cameras in the courtroom.

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