u.s. supreme court

Senate’s Uselessness On Display As Judiciary Rubber-stamps Barrett Confirmation

Dianne Feinstein and Lindsey Graham remain on the same empty page. Photo: Samuel Corum/POOL/AFP via Getty Images

As an employee of the United States Senate during the last century, I can attest to the extraordinarily high self-regard in which most senators have traditionally held themselves and their institution. Back in those simpler and less polarized times, members of the upper chamber never tired of extending exaggerated (if often insincere) courtesies and orotund tributes to the wisdom of even the most destructive (e.g., the filibuster, the seniority system, and the exploitation of privileges) Senate traditions, treated as though they came down from Mount Sinai on stone tablets.

Some of those habits live on, well past any relationship with reality, as was reflected in this week’s farcical confirmation hearings for Supreme Court nominee Amy Coney Barrett in the Judiciary Committee. The much-remarked-upon emptiness of these hearings was only partially attributable to their preordained outcome, given Donald Trump’s order to his party to get Barrett onto the Court before Election Day. Judge Barrett helped make her supposed moment of truth uneventful by an unusually broad interpretation of various canons and traditions militating against specific case commentaries. So often did she quote Justice Ginsburg and Justice Kagan to that effect that she sometimes sounded like a mob figure invoking the Fifth Amendment in order to avoid incriminating questions.

For their part, Senate Democrats contributed to the pointlessness of the hearing by deciding in advance to steer clear of anything touching on Barrett’s worldview — which may in fact drift beyond “observant Catholic” toward cultish practices and avid support for patriarchy — lest they be accused of godless secular bigotry toward believers and help Donald Trump mobilize conservative churchgoers. Democrats tried to express anger over the hypocrisy of Senate Republicans who denied Merrick Garland even a hearing in 2016, yet were rushing Barrett through the process after millions of people had already voted. But that issue had been pre-litigated so fully and for so long that the back-and-forth seemed aimed at low-information voters who were most definitely not paying a bit of attention to this show.

And while Democrats kept noting the incongruity of holding these hearings during a pandemic that had struck some of the committee’s own members, COVID-19 helped Republicans by eliminating public attendance, thus avoiding those messy public protests that marked the Kavanaugh hearings.

Any potential drama was wiped out early on the last day of hearings, as Chairman Lindsey Graham ignored a committee rule against votes when less than two members of the minority are present and gaveled through a motion to schedule a final vote on Barrett’s confirmation for October 22 (the earliest it could be held after Democrats objected to an immediate vote). A subsequent Democratic motion to reconsider the schedule gave Democrats a chance to make the same arguments over a rushed confirmation again, but there was zero doubt about the outcome.

Yes, there were a few moments worth remembering. Out of nowhere Cory Booker lightened up the final day by referring to Ted Cruz — who was at his most insufferable throughout the proceedings — as a “closet vegan.” And after so many hours of Republican paeans to the constitutional “originalism” Barrett professes, Dick Durbin aptly quoted Chicago mayor Lori Lightfoot’s comment earlier this week when she was asked if she subscribed to this doctrine:

“You ask a gay, black woman if she is an originalist? No, ma’am, I am not,” Lightfoot laughed.

“That the Constitution didn’t consider me a person in any way, shape or form because I’m a woman, because I’m black, because I’m gay? I am not an originalist. I believe in the Constitution. I believe that it is a document that the founders intended to evolve and what they did was set the framework for how our country was going to be different from any other.

“But originalists say that, ‘Let’s go back to 1776 and whatever was there in the original language, that’s it.’ That language excluded, now, over 50 percent of the country. So, no I’m not an originalist.”

As the proceedings wound down, Lindsey Graham seemed visibly relieved that they had gone more smoothly than the nearly disastrous Kavanaugh hearings, and he even expressed thanks to Democrats for being so civil to Barrett (the unstated but universally shared assumption being that Barrett will contribute to and perhaps consummate a constitutional counterrevolution that will aggrieve progressives for many years). At the very end, ranking minority member Dianne Feinstein, who never even pretended to lay a glove on Barrett, hugged Graham, a man who once called Trump a “xenophobic race-baiting bigot” and a “kook,” who is “unfit for office,” but is now slavishly doing his will as he struggles to save his own skin in South Carolina. That gesture underlined the present uselessness of the “world’s greatest deliberative body,” as it was once called without irony. The Barrett confirmation process has been a sham with enormous consequences. It’s unclear how and when the Senate Judiciary Committee will ever again earn the respect it has for itself.

Judiciary Committee Rubber-stamps Barrett Confirmation