As Senate confirmation hearings for Judge Amy Coney Barrett begin, which may well prove more important and desirable to Republicans and conservatives than re-electing the repugnant yet bloated Darth Cheeto, it brings a series of opportunities. The first is that Barrett will be confirmed, putting a fifth or sixth, according to how one counts them, conservative justice on the Supreme Court.
The risk here is grossly exaggerated, because most people have no clue how SCOTUS works and conflate the Court with a political branch of government. Most cases before the Court are mundane legal matters. Most decisions are uncontroversial, bordering on boring. And the Court deals with shockingly few cases anyway. But it’s the handful of controversial issues, past, present and future, that capture the political imagination and can have a monumental impact on how society functions.
At a different time, the nomination of Judge Barrett would be fairly uncontroversial. She’s fully qualified to be a Supreme Court justice, even if she’s not your cup of tea. Yes, the Republicans’ refusal to give Judge Merrick Garland a vote was disgraceful, as was the Democrats’ treatment of Justice Kavanaugh. The scorched earth approach of both sides has served political goals but done grave damage to judicial goals. Justice Antonin Scalia was confirmed 98-0. The Senate wasn’t always the Animal House.
There are two separate questions raised by the start of confirmation hearings. The first is whether any justice should be confirmed, given that the election of a new president has already commenced and the hypocrisy of Senate Republicans. This question has nothing to do with Judge Barrett and would apply no matter who was nominated. The separate question, and the one for which these hearings are being held, is whether one person, Amy Coney Barrett, is qualified to be a Supreme Court justice.
Cristian Farias proposes that now-senator and vice-presidential candidate Kamala Harris take the lead in the attack on Judge Barrett.
Kamala Harris isn’t just a member of the Senate Judiciary Committee, which Republicans control and is rushing madly to ram through President Trump’s chosen replacement for the Supreme Court seat formerly held by Justice Ruth Bader Ginsburg. She is also one of the sharpest questioners on the committee, setting herself apart in the nearly four years she has been in the Senate. She has cross-examined everyone from Jeff Sessions to Brett Kavanaugh and William P. Barr.
To call what happens in Senate hearings “cross examination” stretches the concepts beyond the breaking point for lawyers. It’s nothing like actual cross, where neither prolix speeches, facts not in evidence or existence nor multiple compound questions are posed. Bad questions get objections, which get sustained, which get the questions stricken. The witness gets to answer the questions without being interrupted or subject to the childish direction to answer multi-pronged compound complex questions “yes or no.”
Kamala Harris is a terrible cross examiner, as far as cross goes. The confusion is that she can be vicious in her attacking questions, which people unfamiliar with actual cross confuse with competence because they love the attack and, well, have no clue what a good question sounds like.
Voters deserve a Senate hearing where a person aspiring to one of the nation’s highest elected offices gets an opportunity to hold to account an unelected judge nominated for a lifetime appointment on the Supreme Court. And a nominee whom Mr. Trump is depending on to throw the election to him if it ends up in court, and to give Republicans a generation of 6-to-3 decisions on contentious issues they cannot win legislatively, because their ideas are so unpopular.
Putting aside the absurd pop assumption that anyone knows how any justice will rule in a case in the future, a notion heavily promoted to whip up the passions of the ignorant groundlings who have been trained over the past few years to believe that SCOTUS is just another hack political gang of “unelected” lifetime appointees determined to do their patron’s bidding, Cristian makes an important point about voters here. But not the point he thinks he’s making. The political test isn’t about Barrett, but about Harris.
There is a far better than normal chance that Harris will end up being president one day, perhaps sooner than later given Joe Biden’s age. While Trump-haters have done yeoman’s work to ignore Harris’ tenure as San Francisco district attorney and California attorney general, pretending she was somehow progressive in these roles rather than a vicious defender of killer cops and hater of criminals, lawyers remember only too well that Harris was one of the worst. That smarmy look she gave Mike Pence during the debate was the same one she gave reporters as she dismissed their questions about why she loved killer cops and caging black people.
Which Harris will show up for Judge Barrett’s hearing, the one pretending to be progressive to get elected to the presidency, once removed, or the vicious prosecutor, who only seems competent at cross to people who know nothing about cross and just adore her viciousness when it’s against someone they’re told to hate?
It’s normal for someone to play the attack dog in such hearings. Usually, they’re a sacrificial lamb for their party, serving as a lightning rod for public disgust at the impropriety of their mean spirit and nastiness. It allows the others to appear reasonable and fair while still getting to attack the nominee. It’s a useful role for the party. It tends to taint the person playing the attack dog as the outrageous and unreasonable person. The vicious person. Will Harris anoint herself the attack dog? Will she willingly take on that role and choose to be the most outrageous and vicious person on the Senate Judiciary Committee?
It’s fair to despise the Republicans’ use of brute political force to push through Judge Barrett’s nomination at this late date, and after the Senate’s treatment of Garland. That doesn’t make Judge Barrett a bad person or unqualified for the position of associate justice. But to the extent this is a job interview, the person who seeks the job isn’t really Barrett, but Harris, who is being interviewed for the job of vice president, and potentially president after that. How vicious do we want the president to be?