Open Thread: Amy Coney Barrett Confirmation Hearings
It is time…the hearings for Amy Coney Barrett have begun.
The Senate Judiciary Committee begins up to four days of hearings Monday on President Trump’s nomination of Amy Coney Barrett to the U.S. Supreme Court.
If confirmed, Barrett, 48, would replace the late Ruth Bader Ginsburg on the high court.
The hearing Monday will be devoted to opening statements from members of the panel, followed by that of Barrett, who is currently a judge on the U.S. Court of Appeals for the 7th Circuit.
Questioning of the nominee will begin Tuesday and last through Wednesday. Outside witnesses testify for and against Barrett on Thursday.
So Recusal pundits want us to think that Barrett (or any justice) is somehow beholden to the President who appoints them… the moment after their appointment is confirmed and constitutionally protected? What an odd supposition. It requires us to ignore lived experience of the past, well, ever.
I have no idea what form a (possible) constitutional challenge in the upcoming might (hypothetically) take… but among the Federalist Society judges that you’d get, Barrett is probably a better bet *not* to go all-in for Trump.Report
As far as I can tell… the confirmation hearings are anything but.
Watching Senators petition the nominee as subjects would petition their rulers is illuminating on how exactly our particular disfunction works.Report
She’s being rushed through to be the fifth vote for Trump, since Roberts might do that “defend the reputation of the Court” thing; Ted Cruz has said as much. She might not be that vote, but I guess nominating Ivanka would be too much even for this crew.Report
Oh, according to Ted Cruz? Well then. 🙂
But yes, I’d say nominating one’s daughter who isn’t a lawyer would indeed signal something else.
Neither of us know what the hypothetical legal challenge might be… so I’m not making a statement on how all the justices would rule. But the idea that Trump (or any president) has some sort of leverage over the judges they nominate is just strange.
To be clear, the arguments aren’t that ACB has the sort of judicial philosophy that would favor a narrrow interpretation of X… just that she’s somehow going to vote in favor of Trump regardless of whatever judicial philosophy she might hold… because, and this is the important part, she ‘owes’ him.
The argument is literally since she was appointed by the president she has to recuse herself… proximity of time seems to be the only reason that the other two justices also appointed by Trump would not(?) have to recuse themselves. Practically speaking *every* justice was appointed by a President of one party or the other, so I’m not sure they even have standing to rule on the matter.Report
She’s a Republican and would presumably vote to have a Republican president regardless of the pretext, just as happened in 2000.Report
Maybe correct but Repub pols are out there saying they need her on the court for when the election will be decided by the Supremes. I’m sure that gives Roberts a massive stomach ache. But that ain’t helping anything and sure as hell sounds dirty.Report
The logical obverse of the campaign posturing… “see, we’re all that stands between you and anarchy – which is why you have to vote for us even though we already confirmed ACB and therefore you don’t… not really”
But yes feeding frenzy is indiscriminate.Report
“It requires us to ignore lived experience of the past, well, ever.”
Wasn’t the Bush v Gore recount challenge decided along strictly partisan lines?Report
I’ve looked at this again and again over the years and my opinion is no.
We usually overlook the 7-2 per curiam decision which found “the use of different standards of counting in different counties violated the Equal Protection Clause” and the tighter decision was with regards remedy and timing.
Given the first, I’d argue that the partisan stance was the remedy which would have jeopardized the functioning of the Electoral College. That is, by making the remedy vote closer than it was, it gave the appearance of partisanship that isn’t the fault of the consistent jurists.
So the partisan position is: You’re violating the due process clause in your methods, and cannot meet the deadlines in the code of the Electoral college… but do carry on.
Its certainly unfortunate that Florida FUBARed it’s electoral mechanics and we didn’t really have a plan or process in place to deal with such an event… but simple power politics of voting against the law to seat your guy? No, I really don’t see it.Report
“That is, by making the remedy vote closer than it was, it gave the appearance of partisanship that isn’t the fault of the consistent jurists.”
So the argument here is that by deciding to cast five votes upholding the initial but highly contested vote count favoring Bush the conservative justices were trying to *not* appear partisan. That’s a pretty weak argument, no? Now, if the justices were a mix of D and R appointees on each side of the issue the above argument would hold some water. But not as it actually went down.Report
Florida FUBARed the recount at the direction of the GOP secretary of state, with an assist from some GOP operative rioters. And the proper response to that is apparently to reward it.Report
The Democrats would be wise to realize and remember that there is no rule — obvious or otherwise, explicit or otherwise — that could be used to force Barrett to recuse herself in a case involving the election. As much as we may want there to be such a rule, there isn’t.
Of course, there also is no rule — obvious or otherwise, explicit or otherwise — that fixes the number of judges on the court at 9.Report
If the justices are as wacko-partisan as is claimed by those whoa re arguing ACB must recuse herself from any election issues, they should note that the current court would be 5-3 Trump. Prior to Ruth Bader Ginsburg’s death, the court was 5-4, and she was not on the conservative wing.Report
I took a drink every time her motherhood was referenced.
Was soused by noon.Report
Were they lauding it? Skeptical of it? Both?Report
Do we know that she’s the mother of *ALL* of her children? There were questions about Sarah Palin, remember.
(I’ve seen pictures of her family. Some of her kids are phenotypically different from the other kids she has. Are they adopted? Has she been running around on her husband? I’m just asking questions!)Report
Offspring are weird that way. Kamala Harris’s kids are Swedish-Jewish Americans. You just never know exactly what’s going to pop out.Report
Mentioned glowingly as though it is in itself a qualificationReport
Well, ACB does have more black children than RGB had black law clerks, so there’s that.Report
Interesting. I saw a Slate headline that referred to her a “shameless careerist” which I have to assume is rooted somewhat in how they perceive her handling of work and motherhood. Sigh.Report
So far the Dems have stayed away from her family and religion. Good on them, hope they’re able to toe the party line on that.Report
I finally figured it out. Pam Beasly. Not a lot but enough that it was bugging me, like, “why do I feel like I have a crush on her?”.Report
THANK YOU. Yes, especially in that video I watched of her lecture at Jacksonville.Report
You provide your thoughtful analysis, I provide mine.Report
Amy Comey Barrett, Brett Kavanaugh, and John Roberts all worked on the Bush 2000 legal team.
If we, as American’s, looked at another country, and noticed, that after holding power despite only winning a minority of the population, one party installed three judges on their Supreme Court who’d previously worked in a controversial partisan case that had previously gotten that party control of gov’t before, we’d have questions.Report
Elena Kagan was an Associate White House Counsel and then policy advisor to Bill Clinton, who was never elected by a majority of Americans. Then she became Obama’s Solicitor General – defending the Obama Administration, which had the worst record before the Supreme Court of an administration in modern history. She’d never served as a judge, and her only jobs had been as an activist Democrat, or a law professor creating more activists lawyers.Report
So Chuck Grassley vindicates my opinion of Barrett’s dissent in Uriarte. He was an author of the First Step Act and seemed perturbed by her interpretation of it.
https://ordinary-times.com/2020/10/01/amy-tell-me-what-youre-gonna-do-part-2/Report
Now that’s devastating.
If you’re an originalist, you pretty much are stuck with having to agree with the guy who wrote the dang Act.
Which makes me wonder… do legislators and judges ever get together to talk about stuff like “if I wanted to write a law that would get you to interpret it as me saying that X is illegal but Y is not illegal, how would I phrase it?”
I mean, if there’s no way to phrase it so that a lefty judge and a righty judge would agree that X is illegal and Y is not illegal, that’s, like, A HUGE PROBLEM.Report
It’s not as devastating as it might seem. There are two branches of originalism: original intent and textualism. Textualism looks at what the words of the law meant at the time. Original intent originalism (or whatever you want to call it; no one uses terminology consistently on this subject) looks at what the authors considered the words of the law to mean. Now, if you’ve ever signed a contract only to discover later that the lawyers wrote “thousands” instead of “millions”, you understand that law revolves around the actual words of a text. And if you’ve ever wanted to understand what the words of a text actually mean, it’d be reasonable to look at what the writers intended. So these variants of originalism aren’t always going to be opposed.
That said, your observation about clarity in law is valid. But a lot of legislation is deliberately written in order to provide wiggle room in order to get through committees, or written to give authority to an executive agency to clarify its meaning, and sometimes legislation is contradictory because it’s thrown together at the last minute and it’s 1000 pages. So I’m not sure that clarity is really a priority for legislators.Report
So I’m not sure that clarity is really a priority for legislators.
This rewards the clever at the expense of anything close to the arena of “justice”.Report
“Now, if you’ve ever signed a contract only to discover later that the lawyers wrote “thousands” instead of “millions”, you understand that law revolves around the actual words of a text. ”
You mean like when someone writes a law that says “state” and everyone tells us that what they actually meant was the government as a whole and not, like, individual states…Report
There are decisions including dicta that can be taken as instructional to legislators. There is also legislation written specifically to clarify or flat out change an outcome or interpretation in the case law. There are also researcher institutions, law professors, NPOs and any other number of people and organizations dedicated to resolving these types of questions.
But to your point that’s a feature of our system not a bug. It requires some consistency and respect of precedent. It also includes checks and balances, separate coequal branches of government, and a whole lot of sausage making in the political branches. Certain efficiencies are sacrificed to account for other principles and interests.Report
There is also legislation written specifically to clarify or flat out change an outcome or interpretation in the case law.
Is it possible to interpret this legislation as reinforcing the previous interpretation?Report
Sure. There are also statutes that codify principles in the case law. Not saying that’s the best interpretation here but it is far from unheard of in general.
To give a very simple example there are lots of jurisdictions where criminal statutes codify common law (i.e. judge-made) crimes in exactly the manner done in the case law that preceded the statute.Report
I’ve got no problem with laws being made to codify stuff that is already being done.
I may have a problem with it being done before the law codified it… but I complain about a lot of things and on the list, this is a few things down.
But the inability for lawmakers to write a law that says “STOP DOING THIS” strikes me as a fundamental problem.
It’s not *THAT* far to get from there to realizing that there’s no rule of law because the law cannot be counted on to say any particular thing. It’s beyond “laws are social constructs” to “meaning is a social construct”.
To, of course, in practice it being about power, holding it, maintaining it, and refusing to share it with anyone who doesn’t share your priors.Report
I think I hear what you’re saying with the context of your discussion below with CJ. If you’re asking whether it is possible to write a law in such a way that every judge everywhere would reach the exact same interpretation under a given set of facts the answer is no, probably not. Our system accounts for that through legislation, adherence to precedent, and the appellate process, with higher courts resolving conflicts between lower courts.
Is it perfect? No. Does it occasionally result in apparently unresolved conflicts in the law and interpretations that seem at odds with the intent of the legislature? Yes. Is that devastating? I would say no. It’s a work in progress that I think operates well enough much of the time under the constraints it’s under and in comparison to plausible alternatives, and generally speaking is consistent enough. I also think our media and political class really hone in on the toughest pieces of law for obvious reasons. But no one is questioning the entire system over the kinds of mundane contract disputes, landlord/tenant issues, or questions of real estate that run through the courts every day under a lot of the same principles. The politically charged stuff on the other hand is… well politically charged.
Law is never done. That’s just the nature of the thing.Report
How’s this for a compromise?
Instead of whether it’s possible for legislators to write it in such a ways that every judge everywhere would interpret it a certain way, I’d ask whether it’s possible to write it in such a way that non-malicious judges reached the same conclusions.
“Well, 2 + 2 is ambiguous. Sometimes it means 5!” Strikes me as a phrase that will undermine far more than it will build.Report
Then we’ve stopped playing “imagine the best possible law” and started playing “imagine the worst possible judge”.Report
Heh you sound like the engineers at my company. Law isn’t math and never will be! If that’s the standard then it will never be met.
I think the better and most
basic question is whether the system is consistent, reliable, respected, and trustworthy enough that people find it preferable to shooting each other or some other self help. Despite a few notable exceptions,* the answer to that has mostly in American history been yes. The second, and maybe equally important question, is are we committed to working through, and hopefully improving, that system, or do we intentionally undermine it until we have no choice but to do something worse?
*See Dred Scott v. Sandford.Report
One of the arguments I got into with a co-worker is what we should expect people to know.
We had a document that said “install program on the C: drive”. Let’s say it was Adobe because it doesn’t matter.
I said “people aren’t going to install it in C:\Program Files\Adobe… they’re going to install it in C:.”
And he told me “don’t be foolish. It auto-fills C:\Program Files\Adobe! Are you going to tell me that they’re going to delete everything after the colon?”
Well, after two weeks, he said “yeah, we should make the instructions as explicit as possible. Three people deleted everything after the colon.”
Eventually we got rid of “install Adobe”. We changed it to “run this program” “confirm installation window comes up and click the ‘next’ button”, confirm “installation location window comes up and location autofills to C:\Program Files\Adobe and click the ‘next’ button”.
The goal was to make something as explicit as possible.
While it’s certainly possible to come up with someone who screws up install instructions (because people certainly did!), we reached the point where we knew that the installation was good and we shouldn’t have these two specific persons try to follow instructions because they couldn’t.
Not because the instructions were bad, but because the two specific persons had gifts that did not include following instructions that everybody else was able to follow.Report
I think one of the easiest examples for wildly differing interpretations is The Second Amendment.
For many decades, judges often took the first clause to be controlling, inclined to read the whole thing as merely authorizing state militias. There’s also been discussions about “well regulated”, in order to put limits on what a militia can conceptually be. And we’ve had tap-dancing over “the people”, those who keep and bear arms. Is it “the people” as a whole, or does it also mean individuals? “The people of Denver can have an NFL team” and “The people of Denver can smoke in bars” involves very different uses of the word “people”.Report
Which makes me wonder… do legislators and judges ever get together to talk about stuff like “if I wanted to write a law that would get you to interpret it as me saying that X is illegal but Y is not illegal, how would I phrase it?”
Sometimes, individual judges and members of the legislature or the executive are friends and have drinks together, so it probably comes up. But most judges wouldn’t get into it. So, basically, No.
I mean, if there’s no way to phrase it so that a lefty judge and a righty judge would agree that X is illegal and Y is not illegal, that’s, like, A HUGE PROBLEM.
Usually, the problem is technical rather than ideological. Bad draftsmanship or unclear language have no political bent.Report
Usually, the problem is technical rather than ideological. Bad draftsmanship or unclear language have no political bent.
I’m not talking about the possibility of writing a law poorly that could get a judge to say “well… you have to understand…”
I’ve seen no shortage of such laws.
I’m asking about whether it is possible, in theory, to write a law in such a way that would get both judges to agree on how it was written and that X is illegal but Y is not illegal.
If it is not possible, not even in theory, then we have a problem.Report
Well, it must be possible in theory, because we often enough manage to do it.Report
The originalist argument is that we’re losing the ability to write a law that a judge 20 years from now would understand the same as a judge today.Report
I understand the argument that “cruel and unusual” means something differently in 2020 than it did in 1619 and THAT IS A GOOD THING and, for the most part, I agree with that.
It’s the whole mental gymnastics that gives us stuff like, oh, Kelo (and how “public use” magically means “public good” and how “public good” becomes “theoretical public good”).Report
“I agree with words changing like I want them to, and disagree with them changing how I don’t want them to.”Report
If I wanted to make a distinction, it’d be that 1619 had a society that did not see The Stocks as a cruel punishment.
As such, The Stocks would not have violated the 8th Amendment, had it been written in 1619.
Instead, it is The Current Year and we know that The Stocks is a cruel and unusual punishment.
The word didn’t change. *WE* changed.
When it comes to Kelo, for example, the government used eminent domain to transfer land from one private owner to another private owner to further economic development. If you want to get all 5th Amendment, you’d see the phrase “”nor shall private property be taken for public use without just compensation”.
And then start noticing that we’re not talking about public use and noticing that the justices are talking about the public good.
Which is sleight of hand.
And that’s without getting into how the land in question remains an empty lot which does not currently contribute to the public good.
I don’t know if the public uses it.Report