Confirmation Bias

There are many generic arguments against the Senate’s confirmation of Judge Amy Coney Barrett to the Supreme Court, bearing on the timing, the rush and the institutional hypocrisy that can only be denied by people with their eyes wide shut. But that’s a slam on the process, not Barrett, although it’s hard these days to separate the two.

At the close of questioning, Judiciary Committee chair Lindsay Graham made the point that, for a nominee from a Republican president, she was fully qualified, just as was Justices Kagan and Sotomayor as nominees from a Democratic president. Yet, that’s not quite the way it’s being seen.

They have the votes to confirm her, and confirm her they will, but her insistence that she is an “originalist,” along with her refusal to answer any questions on topics relevant to the present, including on racial prejudice, climate change, voter suppression, and so on, have made her extremism clear.

Nick Kristoff at the Times agrees.

Amy Coney Barrett has been following recent precedent in her confirmation hearing before the Senate, pretending that she has never had an interesting thought in her life.

Is it illegal to intimidate voters at the polls? She didn’t want to weigh in. A president postponing an election? Hmm. She’d have to think about that.

What about climate change? “I have read things about climate change,” she acknowledged, warily emphasizing that she is not a scientist. “I would not say I have firm views on it.”

If she had been asked about astronomy, she might have explained: “I have read things about the Earth being round. I would not say I have firm views on it.”

To be fair, she readily said that racial discrimination exists, but refused to get deeper into the mud. The Dems did their job in trying to get her to blow up as she walked through the minefield, as Barrett invoked her duty to avoid expressing a bias on matters that might come before the Court. Did that, as Heather Cox Richardson concluded, make her “extremism” clear?

What’s a nominee to the Supreme Court to do? Sure, we would all like nominees to testify before Congress that they would rule as a justice in the way that give us the decisions we prefer, and we would similarly want to know that they would rule against us so we would be able to firmly demonstrate their lack of fitness for the position because they were clearly biased. What use is a justice who comes to the job with the decisions already made? What point is there to brief and argue a cause if we’re informed beforehand that we’re going to lose?

One of the primary problems is that while the senators know what they should be looking for in a nominee, a nominee who is qualified to intellect and experience, temperament and impartiality, the public either doesn’t or doesn’t care. They perceive nominees like any pol running for office, and expect them to take a side and represent it on the Court.

But, you say, even if the nominee is justified in refusing to express advance views on legal issues that may come before the Court, whether to inform us that she will rule the way we prefer or at least to calm our concerns that she is some crazed partisan who is sworn to destroy the ACA, end abortion and gay marriage and always rule in favor of the powerful and crush the oppressed, at the very least she can offer her ordinary “human” views on such mainstream issues of the day like voter intimidation and climate change.

Can she open the door in this hyper-partisan environment without either demonstrating a bias or getting caught in the dilemma of having a generic view on a highly complex issue that can’t push her into a corner? In the past, the level of hostility and effort to “catch” a nominee rarely reached the heights of the last few years.

There are, of course, good reasons for this level of antagonism, but they’re not Barrett’s fault. Nonetheless, she was no doubt aware that it would be taken out on her before accepting the nomination, so she can’t claim surprise. Had she been willing to express her views on broader issues that pretty much every human being holds, would it have placated the Democratic senators? Would the progressives finally embrace her as a female justice? The way to avoid getting dragged down the rabbit hole is to not go near its entrance, and she didn’t.

Does that make her an “extremist”?

It is true, as some conservatives argue, that this path toward social progress would ideally have been blazed by legislators, not judges. But it is difficult for people who are denied voting rights to protect their voting rights, and judicial passivism in these cases would have buttressed discrimination, racism, sexism and bigotry.

This argument isn’t limited to conservatives, unless you consider us old school lefty liberals conservatives now as progressives generally do. The failure of the legislative branch to do its job does not mean the burden shifts to the courts to do a job for which it is neither equipped nor competent. Justices are not representatives, philosophers or moral arbiters.

Partly because of paralysis by legislators, partly because of racist political systems, forward-thinking judges sometimes had to step up over the last 70 years to tug the United States ahead. Those judges chipped away at Jim Crow and overturned laws against interracial marriage, against contraception, against racial and sexual discrimination.

On the contrary, the Equal Protection Clause and substantive due process exist in our Constitution and jurisprudence, and are rightly invoked to eradicate social wrongs and “buttress” the rights afforded by the Constitution. That’s not the same as becoming the institution of progressive change in society when the rest of government has failed.

Like most people, I, too, would love to know where Amy Coney Barrett’s head is at with a great many issues, but I understand why, given the times, she wouldn’t go near the rabbit hole. She’s otherwise qualified, albeit not a former trench lawyer as is desperately needed. Then again, neither party’s president seems too interested in putting a lawyer on the court who tried cases for anyone other than the government for a living.

Is she really impartial enough to hear my side of the argument and give me a fair shake? I don’t know. She says she has no agenda, but nobody would say otherwise. In a less contentious atmosphere, maybe we would have gotten a better idea of whether of who she will really be. But given the overheated climate, who can blame her for refusing to be dragged down the rabbit hole?

18 thoughts on “Confirmation Bias

  1. David Meyer-Lindenberg

    Those judges chipped away at Jim Crow and overturned laws against interracial marriage, against contraception, against racial and sexual discrimination.

    lol. Either there’s a bit of a parallelism error here, or Nick just came out in favor of judges who “overturned laws […] against racial and sexual discrimination.” Does the Times have editors anymore?

  2. delurking

    She could refuse to answer any questions, and they would confirm her. She could say she would overturn Roe v. Wade, overturn any bans on anything that shoots bullets, strike down Obamacare, and uphold President Trump pardoning himself, and they would confirm her. What she chooses to answer and not answer is likely a balance between how much crap she wants to deal with and her compunction to be honest.

    1. SHG Post author

      What purpose is served by a hysterical comment like this other than to conclusively prove you’ve lost your shit?

      1. Miles

        Has Delurking become a Hare Krishna? His comments were occasionally cogent, and now he’s just screaming idiocy into the ether. What happened to him?

  3. Richard Kopf


    Elena Kagan was a slam dunk for confirmation. So is ACB.

    The Supreme Court is not what the politicians really want. The next President would do well to dwell on the value of the Court as an institution–a seperate branch of government coequal in every respect–when nominating to someone to take the bench.

    Let’s do a thought experiment. Would your head have exploded if Joe Biden nominated ACB? If your answer is “yes,” then you don’t care about law or the Supreme Court or the relationship between the three branches. You care only about raw and savage politics.

    Now, back to being a trench judge in the middle of a criminal jury trial in this time of COVID. All the best.


    1. SHG Post author

      Ironically, I thought Justice Kagan fell a bit short of the experience qualification, her non-academic (HLS prof, then dean) legal experience consisting of a grand total of 15 months as assistant solicitor general arguing a total of 6 cases, before being nominated. But then, your comment wasn’t really directed at me, was it?

      1. Richard Kopf

        No, it wasn’t.

        By the way, In 2009, Kagan became the first female Solicitor General of the United States. She was the big cheese, not an assistant.

        All the best.


  4. Kathryn M Kase

    I find Empirical SCOTUS’ review of Judge Barrett’s opinions more helpful than most of the commentary about her, but even its review of her criminal law opinions falls short. Empirical SCOTUS just tells us her ideological lean, not how she parsed legal issues that we care about (such as, e.g., the confrontation clause). Understanding how she might rule would require reading those 132 opinions, which I fear few in addition to Judge Barrett and various Senate clerks have done.

  5. Jay

    “Justices are not representatives, philosophers or moral arbiters”

    I mean, we say this, but I’m not sure why we say this. When a judge is parsing legal text but the text isn’t clear they have to be able to determine what the legislator meant by the text. When they’re determining whether a sentence is appropriate they’re typically applying community standards, like a representative would do. And when they’re parsing the constitution, now they’re historians, philosophers, representatives, the list goes on. There’s no judicial philosophy (there’s that word) that I’m aware of that has developed a mechanistic approach to law that does not require a judge to be a representative, philosopher or moral arbiter.

    The hypothetical proposed by Judge Kopf is not terribly illuminating, unless he were to go so far as to say that if you had a person who was a known and declared sociopath, dedicated to mayhem, but who believed also in applying the law as written, etc., that there would be nothing to fear. You can claim that if you’d like, but there is still far too much movement in the joints of the law for me or most people to be comfortable with such a person.

  6. John Barleycorn

    Well now that you got that out of your system…when are we gonna get a post about the supremes ever increasing comfort level and perfunctory perfection of the shadow docket?

    Seems as though none of the bobbleheads have got around to asking Amy the Angel if she be cool with the trend?

  7. KP

    “One of the primary problems is that while the senators know what they should be looking for in a nominee, a nominee who is qualified to intellect and experience, temperament and impartiality, the public either doesn’t or doesn’t care. ”

    Oh, I didn’t realize senators were trained to recognize these attributes in other people, while completely lacking in training or attributes to get the job they got!

    The public have a far greater grasp of how much politics is just irrelevant three-ring entertainment for the plebs!

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