Sifting through the vast array of ever-shifting attacks, and denials that they are anything more than strawman cries, against the now-nominated Amy Coney Barrett has been amusing, sad and pathetic. But the worst of it isn’t the usual cries by the civically illiterate, who have no clue what judges do or are supposed to do. The worst is that the groundlings are being manipulated by those who do.
To be fair, it’s too easy. Judge Barrett is being attacked/not attacked for being a Catholic, for adopting black children, and for her love/hatred of stare decisis. Smart people are arguing with surprising vehemence about how Judge Barrett will bring the “conservative” majority to 6-3 (because 5-4 isn’t a majority?), upon which every decision some cherish will be reversed and every decision some despise will be redoubled. By the way, that’s always been the way people have understood stare decisis, even though it’s a tenet about judicial stability.
No doubt Judge Barrett was well aware of what her nomination meant going in. It would be a bruising battle, but it’s not as if any judge gets too many shots at being nominated to the Supreme Court. Even knowing that you will be the target of attack by lies and truth, do you suffer the slings and arrows of outrageous fortune?
Who is sending out this idiotic talking point? pic.twitter.com/UqMUNqKEho
— Grant Addison (@jgrantaddison) September 27, 2020
From the left, what principled judge would agree to be nominated given that we’re on the eve of an election and they (and many, perhaps most Americans) believe the seat should be filled by the next president. This would mean, of course, that Judge Barrett wouldn’t be nominated and would likely never become a Supreme Court justice. Why wouldn’t she take a pass to appease the left? Is a nominee willing to accept the nomination under these circumstances disqualified?
But we’re still at the starting gate of this battle, even as the soothsayers have already condemned her for reversing Roe v. Wade, holding the ACA unconstitutional and a slew of rulings that, we’re assured, will definitely be coming down the pike and will destroy society. When Harvard lawprof Noah Feldman wrote that ACB was, his policy and jurisprudential disagreements with her aside, exceptionally well qualified, it evoked the most Michele Dauber of Dauber reactions.
Noah Feldman: “I am stupid and get women to do my homework for me. Yet because of my white penis I had a job I apparently admit I did not deserve.”
But all of this is already known, and frankly expected, and factored into the equation. What’s not known is whether there will be an Avenatti moment to come.
On September 26, 2018, after Avenatti promoted unbelievable claims that Brett Kavanaugh had participated in a criminal organization that planned and executed a series of gang rapes, every single Democrat on the Senate Judiciary Committee signed a letter demanding a delay in the committee vote on then-Judge Kavanaugh’s Supreme Court nomination.
“In light of shocking new allegations,” the committee Democrats wrote, “It would be an unprecedented abuse of power and abdication of our constitutional responsibilities to move forward with this nomination given the concerns about Brett Kavanaugh’s character and actions. We ask that you immediately request an FBI investigation or support the withdrawal of this nominee, but at a minimum the vote that has been scheduled for Friday must be canceled.”
Key here is that the Senate Dems may not have the votes to prevent confirmation of Judge Barrett, but if they can come up with some mechanism to delay the confirmation hearings, it could possibly serve the same end. Bear in mind, after the Senate Reps refused to give Merrick Garland a hearing (which isn’t a constitutional requirement) and vote for no better reason than they had the clout to deny a nominee his day and there was no rule that precluded them from exercising raw power, turnabout is fair play.
What if someone comes out of the woodwork to claim Amy Coney Barrett has done something horrible, evil, maybe even criminal? Don’t ask what it might be, as who knows? But what if it’s true? It can happen, right? Or maybe it’s just a wholesale fabrication, a lie born of the fevered brow of some savior of the cause, willing to dive into this battle to make a claim just to gum up the works? It could happen, too.
And if someone comes forward to accuse ACB of dastardly deeds, how would anyone know if it’s true or a lie without a thorough investigation? Surely we couldn’t end the “job interview” without it, and no one is entitled to a seat on the Supreme Court with a nefarious accusation hanging over their head.
There’s little serious doubt as to why Judge Barrett has accepted the nomination knowing that she will be the target of attack, whether legitimate or idiotic and outrageous. But no one can anticipate whether there will be some new Avenatti, adored for a while as he courted the useful idiots by saying what they so desperately wanted to hear. And no one can anticipate what shape that attack will take. Once freed of any connection to reality, a fertile mind can manufacture all manner of accusations, and can easily justify their lies as serving a higher purpose of preventing this handmaiden from taking a seat on the bench.
Perhaps it’s worthwhile to remember that the nomination of Amy Coney Barrett may not be a choice you or I would make, but even though her nomination came from Trump, she’s still a legitimate choice for the Court. More importantly, consider that it could have been Jeanine Pirro or maybe even Geraldo, assuming he identified as a woman.
How dirty, nasty, and insane this battle will get before it comes to an end, one way or another, remains to be seen. While Judge Barrett is no Ruth Bader Ginsburg, why would she be? That doesn’t make her evil, and certainly not unqualified, but that won’t prevent some flaming nutjob from trying to burn down her nomination for the cause. And it won’t prevent the mob and Senate Dems from using it to their advantage.