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‘All about politics’: Local law professors react to SCOTUS nomination hearings

Oct. 13, 2020 Updated Tue., Oct. 13, 2020 at 9:59 p.m.

Supreme Court nominee Amy Coney Barrett listens during the second day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, Tuesday, Oct. 13, 2020.  (Drew Angerer)
Supreme Court nominee Amy Coney Barrett listens during the second day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, Tuesday, Oct. 13, 2020. (Drew Angerer)
By Laurel Demkovich and Orion Donovan-Smith The Spokesman-Review

The first two days of Judge Amy Coney Barrett’s confirmation hearings in the Senate Judiciary Committee were marked by dodged questions and politics on all sides, something that didn’t surprise many Washington and Idaho law and politics professors who pointed to the increasingly partisan nature of these hearings.

Barrett’s hearing continued Tuesday, with each of the panel’s 22 members given 30 minutes to direct questions to President Donald Trump’s Supreme Court pick. The marathon session began at 9 a.m. and lasted well into the evening, following Monday’s hearing, which was consumed mostly by opening statements from Barrett and the senators.

“We’ve gotten the normal conversation from Supreme Court nominees, who don’t commit one way or another,” University of Idaho law professor Shaakirrah Sanders said. ”Nominees aren’t really known to disclose a lot.”

With Senate Republicans having enough votes to confirm Barrett without any Democratic support, the outcome of the confirmation process is no mystery, as committee chairman Lindsey Graham made clear from the outset.

“This is probably not about persuading each other unless something really dramatic happens,” Graham, a South Carolina Republican, said in his opening statement. “All the Republicans will vote yes, all the Democrats will vote no.”

Supreme Court nomination hearings have become increasingly political during the past 50 years, said Cornell Clayton, director of the Thomas S. Foley Institute for Public Policy and Public Service at Washington State University.

“This nomination is all about politics,” he said.

In February 2016, Senate Republicans refused to allow a vote on President Barack Obama’s nominee to fill a Supreme Court vacancy, arguing the decision should have been left to the winner of the election nine months away. Democrats now accuse the GOP of hypocrisy for pushing ahead with Barrett’s confirmation just weeks before an election.

Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska have said they oppose voting on any nominee before the election.

Democrats, recognizing they have little hope of stopping Barrett’s confirmation, have opted to use the hearings as a high-profile platform for political messaging. They warn that Barrett – who subscribes to the judicial philosophy of her mentor, conservative hero Antonin Scalia – will vote to overturn the Affordable Care Act and the landmark Roe v. Wade abortion rights decision.

On Tuesday, Barrett declined to say how she would rule or whether she would recuse herself in any particular case, but assured senators that she was “not on a mission to destroy the Affordable Care Act.”

In a live video on Twitter, Sen. Patty Murray, D-Wash., said she was concerned Barrett’s confirmation would have negative effects on important issues, such as health care and reproductive rights.

“Today’s questioning unpacked a lot of Judge Barrett’s most troubling and extreme views,” Murray said.

For the first time, the current court is ideologically sorted, Clayton said, meaning every Republican-appointed justice votes more conservative and every Democrat-appointed justice votes more liberal.

“Justices have come to reflect party politics,” Clayton said. “The court has never been viewed as a partisan institution, but it now is structured like one and behaves like one.”

When it comes to partisan appointments, Sanders said it has been very striking how few people of color and women have been appointed to a federal judge position by the Trump administration.

Whether Barrett’s nomination is the beginning of a turn remains to be seen, she said.

Despite the four women appointed to the Supreme Court in the country’s history, the U.S. District Court for the District of Idaho has not had one woman appointed, Sanders said.

Sen. Mike Crapo, R-Idaho, used his opening statement Monday to criticize Democrats for what he characterized as bad-faith arguments against Barrett.

Crapo dismissed the idea that “everyone in this country who has a preexisting condition or has any kind of a worry about getting support needs to worry that she’s going to be an activist judge – a justice – and go in there and change the law.”

“She’s not, and we all know that,” a visibly frustrated Crapo continued. “This is simply the tired, worn-out argument that is constantly made every time a Republican president nominates a candidate for the bench, for the Supreme Court of the United States. And it’s never been true and it will not be true with Judge Barrett.”

On Tuesday, Crapo used his time to again address what he called unfair allegations from Democrats against Barrett. When the Idaho lawmaker asked Barrett if she had spoken with anyone in the White House or made any commitments about how she would rule on key cases dealing with abortion, same-sex marriage and the Affordable Care Act, she said she had not.

It is unclear how Barrett might rule on key issues, which leaves the future of the court undecided.

In the hearings, Barrett called herself an originalist, meaning she interprets the Constitution’s text to have the meaning it had at the time people ratified it. Progressives tend to interpret the Constitution in the context of today.

Originalism can mean many different things to many different people, Clayton said. It’s been a rallying cry for conservatives of the court with the expectation that judges will rule in certain ways and have certain policy outcomes.

“As a judicial philosophy, it’s much more complicated than that,” he said.

Gonzaga University law professor Mary Pat Treuthart said she isn’t sure how Barrett will use her originalist feelings on the court.

However, because Barrett is a law professor, she has many published writings on many different topics, Treuthart said.

“She has much more of a paper trail, for better or worse, than most judicial candidates would have,” she said.

Sanders said many members of the court use originalism, even those on the liberal side. She said she doesn’t know how Barrett’s views might affect her decisions, but it’s not the only thing that causes a justice to rule one way or the other.

“You don’t need originalism to overturn Roe v. Wade,” Sanders said. “You just need four other justices.”

Barrett has also received criticism from some people for her Catholic beliefs and how they might affect her as a justice. Other justices have been devout members of their faith, Clayton said, but it’s unclear the degree in which Barrett thinks her religious views are important in the context of the law.

Treuthart said it’s intriguing that there may be six justices who are Catholic when only 25% of the country is Catholic.

“We have a population that seems to be growing more secular in its orientation, so to have a greater number of political actors who are more adherent to more conservative incarnations of mainstream faith is anomalous,” she said.

Regardless of the outcome, Clayton said the nomination is extremely important, as the court and its nominations continues to become more political. This is the first time in more than 20 years that there is a Republican appointee replacing a Democrat appointee.

“The ideological impact on the court is going to be dramatic,” he said. “It’s not hyperbole to say this is the most important appointment in at least a generation.”

Laurel Demkovich and Orion Donovan-Smith's reporting for The Spokesman-Review is funded in part by Report for America and by members of the Spokane community. This story can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper’s managing editor.

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