On day two of her confirmation hearings, Supreme Court nominee Amy Coney Barrett held up a blank notepad for the senators to see the notes she was working from. At the beginning of the hearing, many saw the blank piece of paper as a powerful symbol of how smart and prepared Judge Barrett was, their perfect nominee who didn’t need any prepared material to survive the grilling she was sure to encounter by hostile Democrats.
However, by the end of the four days of hearings, the blank notepad was a perfect symbol of something else — just how empty and vacuous the hearing was, and how little Judge Barrett was willing to say about virtually anything relevant to the job of being a Supreme Court justice. In short, the notepad had nothing on it because Judge Barrett said nothing.
Consider her nothingburger of a performance from the perspective of the ultimate purpose of what was happening in the Senate Judiciary Committee this week. In essence, Judge Barrett was interviewing for a lifetime job as one of the most powerful judges on the planet, a job that, because she is only 48, she could hold for four decades. Senators, the people who get the final say in hiring her, spent their time asking her all sorts of questions related to how she would perform that job. And what did she say in response? Zilch.
Just imagine any other job interview. Interviewing to be a cashier at a grocery store? Imagine answering a question about how you would deal with two angry customers who both claim that they got to the front of the line at the same time with this actual quote from Judge Barrett — “I can’t characterize the facts in a hypothetical situation, and I can’t [say what I’d do] to a hypothetical set of facts.” Or maybe you’re interviewing for a sales position, and your potential employer wants to know your thoughts on two different approaches to closing a deal. Imagine answering by saying that you can’t express an opinion on that because to do so would be to prejudge the matter.
No one would get a job if they didn’t tell the people interviewing them their thoughts on how they were going to actually perform in that role…except a U.S. Supreme Court justice. Anyone who has watched a recent confirmation hearing knows that expecting anything much of substance from the nominee is foolish. Faced with questions about some of the most pressing legal issues of the day, issues they will surely face in their role as Justice, nominees regularly dodge and weave, saying anything they can to avoid answering the question.
Amy Coney Barrett was no exception. In fact, she took this game of saying nothing to a whole new level. She agreed that Supreme Court decisions ending segregation in schools and banning laws against interracial marriage were correctly decided, but beyond that, she wouldn’t commit. Was the Supreme Court right in finding a ban on contraception unconstitutional? Wouldn’t say. Roe v. Wade? Nope. Whether the Constitution requires a peaceful transfer of power? Refuses to say. Is voter intimidation illegal? Don’t know. Is there discrimination in voting? Can’t say. Can the president unilaterally change Election Day? Who could possibly know such a thing (even though the Constitution says only Congress can)? Is climate change real? No idea.
And on and on it went. Given how tight-lipped she was about her beliefs and about what she would do if she got the job she was interviewing for, had some senator asked her if she thought the sun rises in the east in the morning, not a single person paying attention would have been the least bit shocked if she had said she couldn’t answer that question because it might come before her as a judge some day. It was that bad. Even though this was a very intentional playbook she was following, no one would blame you if, after Barrett’s three days of testimony, you started to wonder whether the Senate was about to confirm someone to the Court who didn’t know much about the law.
Which means the hearings gave us no new information, so the only way we can evaluate how a Justice Barrett might rule if she joins the Supreme Court is by what we already knew before the hearing. And what we know makes it eminently clear that she is going to be a staunch far-right justice, giving the Court a six-justice conservative majority with which it can control American life and law for a long time into the future.
How do we know this? Because she was chosen by a president who promised to appoint justices who would overturn Roe v. Wade, protect his interests in November’s election, and overturn Obamacare. Because she has been groomed for decades by the Federalist Society and its conservative network to join the federal bench and implement its right-wing view of the world. Because she has extolled the virtues of Justice Scalia-style originalism, a legal interpretation method that is couched in neutral principles but in reality is nothing but a cloak for achieving conservative results. And because her past is littered with anti-abortion, anti-LGBT, anti-civil rights, pro-conservative movement memberships, writings, statements, and rulings.
In other words, she was chosen by President Trump and the Federalist Society for a singular reason — to deliver conservative outcomes on the Supreme Court (and in particular to vote to overturn Roe v. Wade) — and not a thing happened at the hearings this week to believe she won’t make her backers proud.
So what happens now? The Senate Judiciary Committee will vote her out of committee on October 22nd, and then shortly thereafter the full Senate will consider her nomination. Senate Majority Leader Mitch McConnell has said that he wants her confirmed this month, and by all indications, he has the votes. Which means, barring some black swan event, she will join the Supreme Court just in time to hear oral arguments on November 10th in the newest case to try to overturn Obamacare. And also, just in time to hear any emergency challenges regarding the November 3rd election.
Whatever happens in the election, by railroading through Amy Coney Barrett’s nomination in the days leading up to it, it seems that President Trump may finally get his wish to destroy Obamacare, rig election litigation in his favor, and cement a conservative majority on the Court long after he leaves office, whether peacefully or not (but don’t ask Justice Barrett about that!).