Strict Scrutiny - Not A Mystery

Episode Date: October 15, 2020

Leah and Kate recap the first three days of the confirmation hearings so you don’t have to actually listen to them. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello and welcome to a special episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. For this episode, we're your hosts. I'm Kate Shaw. And I'm Leah Littman.

And as you probably know, this week there is a lot happening at and around the Supreme Court. So first and most obvious, the confirmation hearings for Judge Amy Coney Barrett. But also second, the cases that the court is hearing, as well as some action that is happening on its stay docket. So there is a lot to cover. And rather than doing this as one like seven-hour episode delivered to your inbox on Monday, we thought we would do a short episode today just on the confirmation hearings. And then Monday, we'll bring you a regular episode, including the rest of the court's activities for the week. Because we're masochists. So we're just going to do that because we're masochists and maybe you are too. Leah, you want to start us off on the confirmation hearings? What were some of the notable themes

that came through during the hearings? Sure. So in the opening statements in particular, but also in the follow-up questioning, there seemed to be some consistent themes emerging between the two parties. On the Democrat side, the Democrats were extremely focused on the Affordable Care Act and the threats to the statute. They focused in particular on the pending case that the court is going to hear in November, the week after the election, California versus Texas. And they brought photos of people who depend on the Affordable Care Act, kind of like bringing family photos to a gunfight. I think that it was a good strategy to talk a lot about the Affordable Care Act, but I worry that focusing on the particular case in November

misses or obscures the broader picture because the Affordable Care Act is, in Abby Gluck and others' words, Abby Gluck is a professor at Yale who studied the Affordable Care Act, I think, more than anyone. The Affordable Care Act is the most challenged federal statute in recent memory. There was the original constitutional challenge in NFIB versus Sebelius, the statutory challenge that could have ended the exchanges that are the backbones of the Affordable Care Act, King versus Burwell. There is the funding challenge to risk corridors, MODA, the court heard last term. There are challenges to the contraception mandate, Hobby Lobby and other cases. And with a 6-3 conservative court, the Affordable Care Act simply would not have withstood all of those challenges. There's just no question about that. And so...

If Barrett had been on the court during NFIB, during King v. Burwell, absolutely the ACA would be no more. Right. And so I just don't think there's a reason to think that was the end of challenges to the Affordable Care Act and focusing only on the November case, which just as a legal matter is laughable and ridiculous, is I worry missing the broader picture and also setting up the Democrats for a real failure in pushing toward court reform if they say, you know, if you confirm Justice Amy Coney Barrett, the court is going to demolish the Affordable Care Act. When that doesn't happen, are they going to say, OK, fine, the court isn't political. You're right. Like, let's just back off the court. You know, that this is like some of my concern with the narrative that they are spinning that is focused only on this November case. I think that's a really good point. And also, if you are going to focus just on this case that's scheduled for argument on November 10th, it may make sense rather than

trying to just pin Judge Barrett down on how she'd likely vote on severability, which seemed to be their strategy, to emphasize the fact that the reason this case is in the Supreme Court at all is because a bunch of red state attorneys general and the Trump administration are trying to get the Affordable Care Act thrown out. It was just like mind-bendingly infuriating to see all these Republican members of the committee sort of roll their eyes at the suggestion that the ACA could be invalidated in its entirety when that is what the president of their party is seeking to do. And so it just felt like a

little bit of a mistaken emphasis. I think you're right, too narrow to focus just on this challenge and not the broader legal strategy of trying to throw out the ACA using like just this litany of different theories to do it, but also missing the point that the ask is in some ways where the action is as opposed to how she would likely vote, or at least not exclusively how she would likely vote. Right, exactly. I think the one senator who did this, you know, more successfully than others was Senator Whitehouse, who brought up the fact that the judge in Texas who invalidated the Affordable Care Act on this theory and then said the rest of the Affordable Care Act has to fall as well was actually an aid to Senator John Cornyn of Texas before he became a judge.

Right. So this kind of like outlandish theory that it's ridiculous that the Democrats are suggesting might carry the day like is I think that's right on the merits on the substance. And I do think there's pretty cross ideological consensus about that. But it turns out even really bad legal theories can get a single district court judge on board. Yes. And and I think judges to court of appeals judges. And then this is how things move from off the wall to on the wall. And all of a sudden, I don't at all have a hard time counting to three or four. And I don't think it's that hard to maybe count to five on maybe the whole thing getting thrown out. So it just felt really bad faith to suggest this wasn't a live possibility.

It is. So let's pivot from the ACA. What else? So did the Democrats talk enough about everything else that's at stake? I think that they tried to, but I think in their focus on the Affordable Care Act, they may have underemphasized the other issues that the 6-3 conservative court could change. So voting rights and the law of democracy didn't really come up until the second round of questioning, which I think is really striking given that the court granted certiorari in the Big Voting Rights Act case. And as the hearings were happening, the Supreme Court granted a stay of the decision halting the government's attempts to end the census count early. So the court allowed the government to halt the census count as these hearings were happening. And the democracy issues,

I think, are so important to thinking about, you know, the role of the court in our constitutional democracy that I was sad to see that they weren't really happening or brought to light until the second round of questioning. Yeah. And I mean, I think this sort of speaks to, it's not like they weren't germane to the things that Judge Barrett was saying, right? Like, so she again and again returned to this proposition that, you know, courts don't make policy, that basic principles of democratic accountability and legitimacy means that the elected branches of government are the ones who make policy. And okay. The Voting Rights Act would like a word. Right, right, right.

So A, that's right. So Shelby. It also just feels to me as though like if democracy, if courts aren't going to sort of make sure that democracy works so that there actually is some reflection of the will of the people that the actions of elected officials represent, the whole thing seems to me to collapse. So it just felt like this kind of small example of the inability of I think a lot of Democrats on the committee both to really listen to what she was saying and respond accordingly and to actually sort of incorporate developments in the world into their exchanges with her, right? It just felt like there was this kind of wooden and scripted quality to a lot of the exchanges, not to paint all of the Democrats on the committee with the same brush. There was, I think, a real range, but close listening and responsiveness, I think, was not a real strength of the questioning on the committee. No. So that was the Democrats and the theme that emerged on that side. The Republicans were also unified around the following themes. One is the idea that Judge Barrett's religion and insisted that Democrats were attacking her for her religion when in fact,

no Democrat brought up her religion at all. Only Republicans did. So no Democrat said anything about her family beyond praising them in glowing terms. And yet, Senator Joni Ernst and Senator Josh Hawley, you know, repeatedly brought up the Democrats' bad faith attacks on her religion. And it was almost like they had made their statements in advance and expected that the Democrats would say something about her religion. And they just said it anyways, even though that didn't materialize. But it was just extremely weird. Yeah. And then like, because there had to be this kind of straw man manufactured, Tom Tillis at one point ended up reading mean tweets by random people and bots about Judge Barrett and sort of making her sit there and listen to them. Because the Democrats actually didn't give them any material to work with.

They really were, I think, very respectful, did not talk about faith, only complimented her family. And I think to that degree, actually, they were quite disciplined. I think they learned the lesson of Dianne Feinstein's missteps with her in her Seventh Circuit confirmation hearing. And I think, at least on that point, I think they spoke with one voice. Yeah. And Tom Tellis literally broke quarantine to read mean tweets into the record, just to be clear. Awesome. Thank you so much. Okay, so unified in some ways, but there definitely was some variation among the Democrats.

And some of this was good, kind of a sort of divide emphasis strategy, I think. So highlighting the different issues that are potentially at stake. So Senator Booker talked about Roe. Senator Harris talked about LGBT rights. Senator Klobuchar emphasized voting rights. Both Senator Feinstein and Senator Booker kind of tried to press her on things that President Trump had said or intimated. She was remarkably non-responsive, I think, with those lines of questions. So, you know, in some ways, them, you know, kind of trying to divide and conquer, I think, was good. Some of this was less good. There was not, I think, high-level agreement among the Democrats about whether to treat this hearing like a normal confirmation hearing, right? So I think, you know,

in particular, the older members of the committee who went first, right? So I think, you know, in particular, the older members of the committee who went first, right? Dianne Feinstein is the ranking member. You know, hello, Judge Barrett, top of the morning to you. Like a very normal, cordial exchange. And then some of the senators who went later, the questioning proceeds by seniority, were basically pretty direct about the fact that they thought the fact that this was ongoing at all

was an embarrassment to the country, to the Senate, to democracy, to the Supreme Court, that it was happening now, weeks before November 3rd, in the wake of a still raging pandemic, with lots of members not able to participate in person because they're quarantined or being careful, and where the Senate has declined to take up a badly needed package of legislation right of aid around COVID because this is the priority so you know Cory Booker really made this point very explicitly he said nothing about today is normal this is not normal Sheldon Whitehouse remember had a memorable line he said said the whole thing, just like Trump, has been an irresponsible botch. Klobuchar saying we need a reality check. We shouldn't be here now. And this, again, was more sort of about the coronavirus relief package or the Senate's failure to consider it. So they weren't really on the same page about whether this should be treated like a normal hearing. I mean, would it have been better if they had been unified in that way? I think it would have been better just because that would make it easier to extract, you know, bigger takeaways from there. You know, if you repeat the same message,

that message is more easily heard. And I think there was also a good amount of variety about whether to act as if Judge Barrett's views on certain issues were somehow unknown. So Senator Feinstein questioned Judge Barrett as if Senator Feinstein was trying to ascertain the nominee's views about abortion and Roe and Casey, when in fact, she has made her views quite well known in public writings, among other things. And that was quite different from Senator Harris, who in her first opportunity for questioning began with, I would suggest that we not pretend that we don't know how this nominee views a woman's right to choose and make her own health care decisions. And so, again, there was just some disparity between the Democrats about

whether to act as if this hearing was normal and should be taking place and also about whether to act as if they didn't really know what Judge Barrett's views on Roe and stare decisis were. Yeah. And I mean, credit to Josh Hawley, which we don't give him a lot of credit on the podcast, but in his closing, he said, I will proudly vote for a pro-life nominee to the Supreme Court. And then she just said sort of, thank you warmly and smiled back. And so in some ways that was the closest we got to her agreeing, yes. And, you know, like, so maybe you can argue there is a distinction between her being avowedly

and proudly pro-life, which I think she is, and explicitly has, not I think she is, of course she is, and she has said she is. And as a personal, moral, and religious matter, and necessarily voting to overturn Roe. In theory, there could be a distinction drawn between those two. I don't think there's any distinction

in her particular case. But I think that Josh Hawley meant to signal both in that sign-off. And I thought the kind of warm exchange between him and Judge Barrett was the most revealing things got, which is like really a low bar. That's the thing we learned the most from

was her smiling back at him. But there was nothing she was going to say because she both adhered to and I think even kind of further cemented the norms of non-responsiveness. I think well beyond, it was a little bit rich to hear her continually invoke justice, then obviously sitting judge Ruth Bader Ginsburg's no hints, no forecast, no previews when Ginsburg was actually extremely forthcoming about the centrality of Roe as a matter of equality and liberty. And there's a difference between not forecasting votes in a future case and acknowledging, right, or describing and even offering views on the court's settled law. And she seemed to really

offer an expansive vision of what the, you couldn't even forecast your opinions about things the court had already done, which doesn't quite compute. That was one notable moment. Maybe we should get into some other notable moments from the hearings that might set the stage for some of our final holistic assessments. So maybe we'll break these down into some ludicrous, some revealing, and some high points if there are any um so first first we'll read for you okay yeah what ludicrous let's start let's start with ludicrous okay um so one ludicrous moment for me was senator john kennedy who is the republican from louisiana um opening statement so these were actually in his prepared remarks he offered up the following, quote, it hurts to be called a racist. I think

it's one of the worst things you can call an American. And, you know, he also called the Kavanaugh hearings a, quote, freak show and a cantina bar scene out of Star Wars. And again, these were the senator's chosen prepared remarks to open the hearings with. Oh, God. Sass had a pretty ridiculous self-important civics lecture. He also had this weird aside in which he said originalism was also known as textualism, which, you know, whatever you think of these theories, like, they're not the same thing. Classic Sass lighting from one of my least favorite senators.

So another low point for me was Senator Chuck Grassley, among others, saying something like, as a mother of seven, Judge Barrett would never invalidate the Affordable Care Act, which, you know, Scalia was a father of nine. He voted to overturn the Affordable Care Act. And it is also just an odd form of identity politics when they were going apoplectic when Justice Sotomayor discussed judging as a,

quote, wise Latina. And here they are saying Judge Barrett's views and votes as a judge will be driven by the fact that she is a mother of seven. They loved returning to it. And her kids sat very impressively still for a lot of the hearing. So I have to give them credit for that. But yeah, it's sort of the convenient invocation with her, which was meant to be, I think, a set of softballs that she just kind of got confused and sort of by and resisted. And so it ended up being a very awkward, intense exchange. He meant to make the point that she may have developed views that won't necessarily influence the votes she casts or the opinions that she writes. But it was sort of an ineptly executed, you know, colloquy. And then she, I think, I don't know if she surprised him. She certainly had my jaw on the floor when she resisted acknowledging that she had any views about climate change.

I think he meant to say, you can have views on climate change. That doesn't tell us how you're going to vote in a case about a climate change reg, say. No, she said, I've read some things about climate change. I wouldn't say I have firm views on it, which, again, kind of had my jaw on the floor. You know, in a separate exchange, she said she was willing to make some concessions that certain things are beyond dispute. She said COVID is contagious. Smoking causes cancer.

But then kind of bristled at the suggestion that humans cause climate change. And, you know, both of those climate change exchanges were just so, they did suggest that the universe that she inhabits is one that has a certain set of kind of views and beliefs and that things that are basically beyond dispute, like the existence of climate change and human involvement in causing climate change, are actually up for dispute. And that is a very fringe view. And I found it extremely revealing that she twice kind of committed herself to the question that, you know, maybe, you know, she reads all sides of the science and doesn't have settled views on climate change. Maybe it is a hoax perpetrated by the Chinese, right? Do we have firm views on that?

I don't know. You're trying to draw her into a political controversy and she won't be drawn in, it seemed to be the reaction. And that was a pretty shocking moment, I thought. Yeah. So Senator Kennedy has been coming up repeatedly in these ludicrous moments, but I also have to bring up the moment when he asked her who does the laundry in her house, which is just so offensive to me. Like, you would never ask a male judicial nominee, who does the laundry in your house? I just, again, I hated that entire aspect to the hearings. And I kind of, I wish I had seen sort of a flash of anger in her eyes. Like, what about, how about your house, Senator Kennedy? But there was none of that, you know, and I got, look, she can't, they have to obviously be respectful, but nothing

even, it didn't even seem to bother her, at least so far as you could tell. She just sort of laughed. Because it should be you, obviously. It can't be. You're too busy. Right. So who is it? What's your secret?

Right. That was obviously the subtext. Yeah. Ah. Okay. So those were some ludicrous moments. What were some revealing moments, did you think? This one probably bridges the gap between ludicrous and revealing.

But Senator Graham is questioning Judge Barrett about super precedent and specifically about Brown versus Board of Education, and he was trying to say something about how there's no question that Brown is good law, and no one is asking for Brown to be revisited. And in the course of explaining why segregated public schools and segregation was not going to return, he referred to us not going back to the quote, good old days of segregation. And I think he meant it as a joke, but it was just extremely gross for him to say that. Yeah, like just this sort of this sentimental invocation of pre-Brown sort of state of affairs. You know, it's I mean, we're probably being uncharitable, but a, it was a strange thing. And sometimes these sort of asides are revealing. What about Barrett herself? What were some revealing things that you thought she said?

So there was the climate change reveal, which we, I think we both thought was revealing. What else? Yes. I also think some of her statements about the Affordable Care Act were revealing. So she tried to say that the ACA's protections for pre-existing conditions were not at issue in the Affordable Care Act case before the court. As numerous people pointed out, this is, of course, not true, given that the second argument about severability is that all of the Affordable Care Act, including its protections for pre-existing conditions, must fall. On top of that, you know, she insisted that the only issue in the Affordable Care Act case is severability. That's also not true. Like you only get to severability if you conclude that the minimum coverage provision is unconstitutional. And then she also refused

to say whether she thinks Medicare is constitutional, which I don't even know what to say about that. You know, it is both indicative of, you know, how potentially fringe her views are, but also I think perfectly encapsulates like the threat that a 6-3 conservative court poses to any agenda that the Democrats might reasonably have if she thinks that Medicare is unconstitutional or potentially unconstitutional. Or not sort of beyond reasonable disagreement, right? So why not Social Security, right? Like literally all of the federal government's work, right? The work of agencies, statutes passed by Congress. Like I mean, I don't think it's alarmist to say that all of that is drawn into question if you have a Justice Barrett on the court. And, you know, but one of the things that was so frustrating about the hearing was that there wasn't any really like any explicit grappling with any of that. Right. OK, so on the law of democracy, which we've mentioned a little bit here, I thought some of her non-responses were kind of the most some of the most important

moments of the hearing, honestly. So she refused to say whether the Constitution or federal law gives the president the authority to unilaterally delay a presidential election. She said she'd have to research it, talk to her law clerks, talk to her colleagues, consider the matter. I mean, this is a no-brainer, right? This is a no. No, it doesn't. Like, you're a student of the Constitution. You understand the basics of our democracy.

Of course, the president has no unilateral authority to move an election. And, you know, the president making outlandish ways the court might respond to things the president might do by saying very clearly, no, I'm not. She could even have said it in a way that wasn't direct or confrontational. She could have said something like, I am not aware of any arguments. And I'd be surprised if there are any good arguments that the president has the ability to unilaterally delay the election. You know, I was reminded of this moment in John Roberts' confirmation hearings, actually, when I think it was Senator Leahy was pressing him. And this is, you know, a couple of years, it was 2005, not so far post 9-11. And there's a long exchange about Justice Jackson and then about Korematsu.

And he's basically asked about, you know, Korematsu at this point has not been formally repudiated by the Supreme Court. What about a policy that involved rounding up individuals on the basis of race or religion or national origin? And Roberts said, you know, like rounding people up and turning them on the basis of one of those characteristics. And Leahy said, yeah. And look, this was 2005. This was the height of the war on terror. He could easily have said, I can't opine on something that might come before me. He could have said that. And you know what he said? I suppose a case like that could come before the court. I would be surprised to see it. I would be surprised if there were any arguments that could be made in defense of it. And that, I think, has really important symbolic and expressive value.

It's sort of suggesting that certain kinds of things are off the table, are totally inconsistent with our constitutional values, and thus shouldn't be seriously considered. And it's not and it's OK to say that and it's OK to draw those lines. And she just I think she drew none of those lines. So there was the moving of the election. There was the question from Senator Booker about whether the president should publicly commit to peacefully departing office if defeated. There, too, she said, I think you're trying to draw me into a political controversy because there's a question about whether President Trump will leave. I mean, again, this is a clear this is an easy softball. The answer is yes, of course, president should commit to that value.

That's a basic. And then the second time when he followed up, she said, well, there is a tradition of peaceful departures and Americans accept results. But she conspicuously didn't say defeated candidates have to accept results. And so I just felt like those were extremely disappointing and potentially really worrying signals about her likely, you know, approach to one of these cases should they arise. Right. I mean, it suggests maybe either that she is concerned that the president might pull her nomination and that that concern is more important than signaling that these deeply anti-democratic authoritarian steps are inconsistent and out of bounds with our constitutional tradition. Or alternatively, it suggests that she actually does think it is actual controversy about whether presidents can do these things. She refused to say whether voter intimidation was illegal. She refused to say if she agreed with Justice Scalia that the Voting Rights Act was the perpetuation of racial entitlement. And she refused to comment on whether voting discrimination still exists, as, you know, the chief justice said it did in his opinion in Shelby County. So the law of democracy issues, I think, were some of the most concerning in the hearing. I totally agree. And again, she could have reaffirmed basic principles of participation

and non-discrimination and, you know, democratic values. And she, for whatever set of reasons, I think you identify a couple of possibilities, was like unwilling to do that. Right. Reproductive justice. Yeah. Also pretty concerning. You know, so she, after herself bringing up Brown as super president, got really kind of flustered when asked whether Roe was super president and sort of asked Senator Klobuchar, what do you mean by super president after having just used the term herself?

But clearly she doesn't. She doesn't think it's super precedent. She says, look, the fact that I'm getting all these questions about it means it's still in dispute. And, you know, I think she clearly thinks that it was, you know, demonstrably erroneous to use Justice Thomas's formulation. And I don't think she thinks that it has created or it and Casey have created a workable set of standards. And so I think to me the real action is what she thinks reliance interests mean in the analysis of whether to overrule a case like Roe. And I just – I cannot – I mean those have to be taken seriously, but I can't imagine her deciding that the reliance a wrongly decided case on the basis of effectively policy considerations like reliance interests is inconsistent with the Constitution,

right? So she thinks stare decisis itself might violate the Constitution. Yeah, or certainly a strong, certainly a strong form of it. Yeah, no, I think that's right. She wouldn't even comment on whether Griswold was correctly decided, this important Roe predecessor case that establishes a right to privacy there, marital privacy and using contraception. And she did something that was like very Borky, right? So remember, like one of the things that really got Judge, then Judge Bork,

right, into trouble when he was being considered for the Supreme Court was his criticisms of Griswold. And she didn't criticize Griswold, but, you know, and he actually did something very similar, which is to say, I can't imagine anybody trying to enforce, you know, any kind of criminal prohibition on contraception or, you know, please don't go storming into bedrooms. Okay. Sometimes they do, actually. But he sort of said it's unlikely that it would arise again. But he, you know, he had been explicit in his criticism. So she wasn't explicit

at all in her criticism of it. She refused to comment on it. All she did was to say that it would arise again. But he, you know, he had been explicit in his criticism. So she wasn't explicit at all in her criticism of it. She refused to comment on it. All she did was to say that it's, you know, unthinkable that it would be revisited. But that is wrong. Yeah, exactly.

Like Justice Thomas's writings have likened contraception as well as abortion to eugenics. Obviously, the entire Hobby Lobby line of cases is chipping away at access to contraception on the basis that there are sincere religious objections to it. Also, you know, you have numerous senators as well as sometimes judges referring to contraception as a kind of abortion, as abortive fascist. And so, you know, that was also concerning. Yeah, so it is certainly conceivable to me that she joins the kind of Thomas wing of the court on this too, which is, you know, which I think does carry with it a degree of skepticism about constitutional protections for access to contraception.

She referred very casually, to go back to eugenics, to the eugenics portion of the Indiana abortion law that the Seventh Circuit struck down in 2018. That part, this sex-selective and disability-selective abortion ban, was actually not an issue before the Seventh Circuit. It was just this fetal remains disposal provision. And yet Easterbrook went out of his way to talk about the so-called eugenics provision of the law. She didn't write, but she joined that portion of the opinion. And again, she sort of casually mentioned,

oh, are you talking about the eugenics portion um uh which was not the name of the statute um you know Easterbrook even used quotes he said I'm going to call it the eugenics provision sort of acknowledging that that was a fairly provocative way to describe it but there were no air quotes around her use of eugenics when she talked about it. Yeah. So she also refused to say whether in vitro fertilization was manslaughter or was sometimes manslaughter. She was part of a group that had called for IVF to be criminalized. One of the reasons why this was concerning is because, you know, sometimes one part of an IVF treatment is after you implant fertilized eggs, there is a process called selective reduction, where if too many eggs take, fertilized eggs take, you remove some of them. And some of the critics of IVF say, right, like this is a form of abortion and manslaughter.

And, you know, several senators pointed out that this was very disturbing. Senator Tammy Duckworth pointed out that she has relied on IVF in order to have children. And so it was very disturbing to see a nominee refuse to say whether IVF was a form of manslaughter. On LGBT rights, there was this really striking, startling, disconcerting moment early on when she referred to sexual preference rather than sexual orientation. You know, people caught this immediately. And I think also is reflective of the universe that I think she inhabits, right? I think she probably doesn't spend time around a lot of LGBT people or there's no way she just uses the term sexual preference. It's an offensive and

dated term. And she then did have a chance later that day, Senator Hirono came back to her and said, you know, you use kind of an offensive term. And she didn't have any explanation. And she also didn't say, no, no, no, I didn't mean to broadcast the view that sexual orientation is some sort of choice. I just misspoke. She just said, oh, I would never intentionally use a word that is offensive. But, you know, this is something that is not just sort of semantic, right? Like there are real doctrinal implications of deciding, right, or broadcasting of you that sexual orientation is a choice, right? Equal protection doctrine, right, does focus to a degree on immutability. And so it matters a lot if you think sexual

orientation is a choice, the Constitution protects you against discrimination on that basis a lot. If you think sexual orientation is a choice, the Constitution protects you against discrimination on that basis a lot less than if, in fact, it is not a choice. So that was, I think that people jumped on that, but I think rightly so. It was a terminological choice that had real substantive implications, and she didn't do anything really to assuage concerns when she had a chance with Senator Hirono. So those were some of the revealing points. Any high points? Any? Bueller? The mics went out twice.

That's true. That's true. I'll go with that as my high point, too. I think the Democrats were disciplined and effective in making Amy Coney Barrett as a person sort of irrelevant. And that, I think, is correct. imperfectly were the focus of the Democrats in the hearing, as opposed to Amy Coney Barrett, who, by all accounts, is an extremely, you know, nice colleague and wonderful to her law clerks and respectful to the lawyers who practiced before her. And I think that, you know, that they were substantive and rigorous, but, you know, basically polite and respectful. And I think

that actually, so I'll call that a high point. Okay, great. I'm glad we could think of one besides the mics going out. So I guess maybe we wrap up with some takeaways from the hearings or just our kind of high level assessments of them. Sure. Sounds good. We kind of opened with saying that there was a disconnect among the Democrats about whether and to what extent to pretend that her views were somehow unknown on certain issues. I found it rather frustrating for Democrats to think that they should use questioning to discern what her views are when it's not at all a mystery what her views are on issues, particularly issues of reproductive rights and justice. It was additionally frustrating for me that we have

reached a point in confirmation hearings where someone won't or refuses to discuss views that they have already expressed. So, you know, she signed ads, which she noted were in her capacity as a private citizen, calling for Roe to be overturned and calling it barbaric and infamous. But, you know, it was just as though we had to pretend that she either no longer held those views or, you know, we couldn't discuss them. I just found that very frustrating. But I just like did not enjoy the Democrats, particularly people like Senator Feinstein asking questions about her views when again, her views are known. And it was just like watching this thing play out asking questions about her views when, again, her views are known. And it was just like watching this thing play out where I was wondering, like, well, are the Democrats going to solve this mystery about whether a person who has denounced Roe and called it infamous and pledged to oppose abortion thinks Roe is wrongly decided and might overrule it? Like, it's not a mystery.

No. And in the context of a president who for years has been promising to appoint justices who will vote to overturn Roe. Like, it's I mean, I'm not ready to say let's jettison the whole ritual of confirmation hearings. But I do think that trying to pin a nominee down on how they're likely to vote is just a piss poor use of time when we I think we know the answer. I mean, I think there are questions about whether, you know, strategically she'd be, she would be someone who would vote potentially in a kind of pragmatic and institutionally minded way if there's concern about, you know, drawing blowback from the perspective of, you know, institutional reform, court expansion, things like that. If, you know, if a very quick overruling of Roe and jettisoning of other precedents is something that might, you know, increase the likelihood of those things coming to pass. I think all that is perfectly fair game and whether and how the court might chip away at versus overruling Roe outright. I think those are also things that reasonable minds

can disagree about. But whether she would just, because story decisiveness is an important value, decide to adhere to Roe and Casey is just, I think, sort of a ridiculous question to spend our time pretending to debate. Yes. Of course. Frustration is I think that, you know, she took even further. I pulled the Roberts transcript because I remember that exchange about Korematsu and I sort of read through it and I was struck by even 15 yearsness of the invocation of her methods and her inability to speak specifically about either future cases or past cases subject to this kind of arbitrary set of exceptions, like she'll go deep on Heller and severability

and that just felt like sort of opportunistic, like there's a few things that she's willing to talk about because there are not really political consequences to doing so and yet no clear explanation of where those lines are. I do think that this is a new low in terms of the lack of kind of usable, actionable information that a nominee provides. So that I think is one big takeaway. It was not like we learned much from Gorsuch or Kavanaugh, but I think we actually even learned more from them just from the hearing than we did from her. Yeah. I was also, you know, frustrated somewhat about the, you know, continued hypocrisy

of Republicans on a few fronts. You know, one was they were trying to distance themselves from the idea that Supreme Court justices are political or are on a political team. And yet, of course, they were arguing that vacancies should be filled only when Republicans had the presidency and the Senate, or they deny that the president is selecting a justice because the justice has particular views. And then, you know, last spring and summer, we saw them throwing massive temper tantrums and screaming betrayal on the rare occasions when a Republican appointed justice actually diverges on a major case like the chief and Justice Gorsuch on Title VII or the chief on DACA or the Affordable Care Act.

So I just – there's only so much of that I can take. And as we have said, it's clear that she was, you know, selected based in large part on the kind of criteria in their own party platform about the views that prospective nominees would have to hold. Right. Trump, you know, very clearly has said he wants justices who will vote to strike down the ACA and vote to overrule Roe. And, you know, and then has more recently broadcast, you recently broadcast vote with him in a disputed election case. The Republicans returned to this and she returned several times to this, claimed that she didn't promise anybody, she made no deal, she made no pledges. And of course, that's not the point. She doesn't have to. If she's elected because of a sort of pretty broadly shared understanding of how she's going to vote in these cases, no one would ever need to extract a pledge at all. That's not really responsive to the argument. these particular events. But the specter of the Senate continuing this event, which could be

another possible super spreader event right after the Rose Garden announcement ceremony, in which President Trump introduced Judge Baird to the world, which was definitely a super spreader event. So you have at the hearing, maskless senators who themselves tested positive for the virus. We have a number of Democrats participating remotely, responsibly so, especially in light of news that just dropped this morning that a senior staffer to Senator Harris has tested positive for the virus. In some ways, it was the hearing as a microcosm of the broader Trump administration policy, which is just pretend this isn't happening.

And so, you know, like pretend there's not a relief package that we are ignoring and also just pretend we're not in the middle of a pandemic that renders it really unsafe to be in close quarters with a lot of other people. And I think, you know, Judge Barrett did wear a mask on the first day. She seemed to put it on when she left the hearing room, although she didn't put it on in between her statements. It was pretty much off after the first day. I really wondered whether the White House gave her some directive to that effect because she wore it the whole first day. And the split screen of her there with the mask and the questioners or the speakers

giving their opening statements, I'm sure the president, who obviously watches TV all day, really hated. And so she didn't seem to have a lot of masking happening after that. So that was one big frustrating takeaway, one that I hope will not be applicable

to future such hearings, but certainly was to this one. So thanks everyone for listening. A reminder that you can support the show by becoming a Glow subscriber at glow.fm forward slash scrutiny. And if you enjoy the show, please rate us on iTunes. Thanks to our producer, Melody Rowell. And thanks to Eddie Cooper for making our music. And thanks again to all of you for listening. Thanks so much. We'll see you next time.