There was nothing original about Amy Coney Barrett’s appearance before the Senate Judiciary Committee other than her incessant professions of her fidelity to an originalist approach to the American Constitution. Originalism is a convenient smokescreen for conservatives to act as what they claim not to be — judicial activists, ascribing their own views to the founders. But to acknowledge this would be to land Barrett in a host of difficulties. For the likes of Barrett, originalist theory is the judicial equivalent of an SDI shield. She wielded it well. Throughout, she dutifully supplied answers that were none at all. She has no ‘agenda’. She has no view on whether a president can delay an election. Voter intimidation at the polls? Once again, she punted. After Sen. Kamala Harris asked if she was aware that President Trump had gloated that she would be the decisive vote to overturn the Affordable Care Act, Barrett professed ignorance. ‘I don’t recall hearing about or seeing such statements,’ Barrett said. Of course not. She was the one person in America who somehow managed to avoid Trump’s constant braying about how he was about to create a pliant Supreme Court. At most she indicated that she would not be a ‘pawn’ of Trump.
One of the many oddities of the appointment is that Barrett, who claims strict neutrality, is being nominated by a president who views the notion, or norm, if you want to use au courant language, as so much piffle. Trump just got a win on the census. Now he wants the Supreme Court to stop his tax returns from being handed over to a grand jury. He has explicitly said he wants Barrett on the court to ensure a win for himself in November if it’s a contested election.
For now, Trump is trying to run roughshod over election law. In California, Republicans have been installing private drop boxes to harvest ballots. They’ve been told to desist by Attorney General Xavier Becerra. They face prosecution. But Trump is exhorting the GOP to ‘fight on’. In a tweet, he declared, ‘You mean only Democrats are allowed to do this? But haven’t the Dems been doing this for years? See you in court. Fight hard Republicans!’ With his customary eloquence, Republican Rep. Devin Nunes stated on a local radio show, ‘Screw you! You created the law, we’re going to ballot harvest.’
To listen to Barrett, however, these are all abstractions. She takes refuge in the lofty language of the law. Still, in confronting Barrett, the Democrats are showing that they have learned a thing or two since the Brett Kavanaugh hearing. Put bluntly, they’ve wised up. Gone is any focus on Barrett’s personal life. Discussion of her fervent religious beliefs are verboten. It’s Republican senators who are pointing to her impeccable family life.
The Democrats are after bigger game than Barrett. Nothing is to be permitted to impede Joe Biden’s smooth ascent to the presidency, not to mention winning a Senate majority in November. They may not be able to prevent Barrett from becoming a justice, but it may well be the GOP’s last hurrah.