Judge Barrett is eminently qualified for the Supreme Court
Judge Barrett looked like a high-quality nominee when first announced and her performance at the hearings strongly reenforced that impression. Without relying on notes, she demonstrated a remarkable breadth and depth of knowledge of the law. She was highly articulate and skillful in her exchanges with senators. While resolute, she displayed grace and poise in the face of hostile, repetitive questioning over many grueling hours. She deftly parried “gotcha” questions designed to take her where a Supreme Court nominee should not go. (See below.) In short, she clearly demonstrated outstanding substantive abilities and judicial temperament. If confirmation votes were based on merit rather than politics (as they used to be), the Senate would confirm her by an overwhelming, bipartisan majority.
No bloodbath this time
Although highly partisan and contentious, the hearings were remarkably civil by recent standards (granted, an extremely low bar). For the most part, Democrats wisely refrained from attacking Judge Barrett’s personal integrity or religiosity. Instead, they concentrated their fire on the process, Trump, and their Republican colleagues.
Process objections ranged from the arguable to the absurd
Democrats vigorously condemned Republican hypocrisy in pushing Barrett’s confirmation after the Garland fiasco of 2016 and their rush to confirm her before the election. As discussed here, these are fair points but they don’t provide a principled basis for opposing her confirmation. Another stated concern was potential Covid risk. Notably, however, almost all Judiciary Committee members opted to appear in person along with their staffers and safety protocols were generally followed.
Unfortunately, many Democrats went beyond criticizing the process as hypocritical, unfair, or unwise and falsely maintained that it was “illegitimate.” They continue to argue that the SCOTUS seat created by Justice Scalia’s death was “stolen” from them. This is nonsense. A vacant seat belongs to no one and, while nominees deserve good faith consideration and a vote, they are not entitled to confirmation. Allegations that filling the SCOTUS vacancy created by Justice Ginsburg’s death somehow constitutes another seat-stealing or some kind of “court packing” are equally ludicrous. Most absurd of all is the contention by some Democrats, including Joe Biden, that there is something “unconstitutional” about the Barrett nomination process. All of these spurious arguments can be easily dismissed now. The concern is that Democrats are using them to lay the foundation for a real court-packing scheme once they seize power, which would do tremendous damage to the Court.
The Affordable Care Act (ACA) was a huge red herring
Throughout the hearings Democrats relentlessly promoted the theme that Judge Barrett’s confirmation would be the final nail in the coffin of the ACA. This is a clever but disingenuous line of attack. It’s true that the Trump Administration is pushing to nullify the ACA in a case the Supreme Court will hear in early November. However, as Democrats surely know, this effort is almost certain to fail. The lawsuit is viewed across the political spectrum as quite far-fetched on the merits. (See, e.g., here, here, and here.) Indeed, it has aptly been described as legal and political malpractice. The Court may declare the ACA’s individual mandate unconstitutional but that will have no practical effect since Congress already gutted this provision. It is extremely doubtful that the Court, with or without Barrett, will invalidate the entire law. Interestingly, Republican senators were apparently too cowed by Trump to offer this obvious rebuttal during the hearings.
The usual kabuki dance with a few wrinkles
Senators’ questioning of Judge Barrett followed a familiar pattern. Republicans lobbed mostly softballs, although they were patronizing at times. Democrats peppered her with questions that would be foolish or unethical for her to answer and then criticized her for being evasive. She did duck some questions that seemed to have obvious answers. However, these questions, like most others, were designed to launch her onto slippery slopes that would eventually lead to inappropriate subjects. She was wise not to take the bait. Democrats also tried to get her to comment on various outrageous statements by Trump and to address a range of hot button political issues, some having no apparent relevance to her qualifications as a potential justice. She sensibly deflected these efforts as well.
Barrett’s refusal to cooperate with such lines of attack led some Democrats to insultingly caricature her as a robotic clone of Scalia and a toady for Trump. No sentient, fair-minded person who followed the hearings would buy this. Judge Barrett consistently showed herself to be a strong, independent thinker who radiates integrity. She left no doubt that she will decide cases impartially based solely on her interpretation of the applicable law.
Contrasting views on the role of judges
One enlightening aspect of the questioning and speechifying was to highlight the contrast between Democratic and Republican visions of what the judiciary should be. Democrats focused heavily on the results in individual cases, making clear which outcomes they approved or disapproved from a policy perspective. They seem comfortable with the notion of courts as an extension of the legislature. Republicans focused on methodologies (textualism and originalism) they believe judges should employ to decide cases based on the law as written, leaving policy issues for resolution by the people through their elected representatives.
Some clear winners; no big losers
Judge Barrett was an obvious winner. Republicans won too, for now. They are poised to achieve one final major victory on judicial confirmations before probably losing the presidency and their Senate majority. Of course, payback may be lurking around the corner. (See, e.g., court-packing, above.)
Democrats came out even. They couldn’t block Judge Barrett but avoided doing further harm to themselves. Their relatively anodyne approach to her saved them from the kind of self-inflicted wounds they suffered in the previous two SCOTUS confirmations—their foolish filibuster of the Gorsuch nomination, which resulted in turning them into largely irrelevant spectators at subsequent confirmations, and their over-the-top Kavanaugh tactics, which probably cost them Senate seats in 2018.
Likewise, the public more-or-less broke even. They were spared another embarrassing, demoralizing spectacle like the Kavanaugh confirmation and treated to an excellent performance by a super talented nominee. On the other hand, SCOTUS confirmations remain hyper-partisan exercises that ill serve the public interest.