Hats off to Noah Feldman for having the integrity and sheer guts, frankly, to have written this piece. It won’t make him any friends on his own side but it might help drain out of the body politic a bit of the toxic ruthlessness that poisons every SCOTUS fight nowadays.
Feldman clerked for David Souter the same year that Barrett clerked for Scalia. Supreme Court clerks are the best of the best among America’s law students; according to Feldman, Barrett was the best of the best within that group. You should read his piece in its entirety, as no excerpt can do it justice. It’s a love letter from start to finish: Yes, he disagrees with Barrett’s judicial philosophy, but on every conceivable measure of merit — intellect, diligence, temperament — her selection to the Court is a no-brainer.
Remember that this guy testified against Trump during the House’s impeachment hearings late last year. For him to say this about a Trump nominee is remarkable.
I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year, all of whom had graduated at the top of their law school classes and done prestigious appellate clerkships before coming to work at the court, Barrett stood out. Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School.
When assigned to work on an extremely complex, difficult case, especially one involving a hard-to-comprehend statutory scheme, I would first go to Barrett to explain it to me. Then I would go to Martinez to tell me what I should think about it…
To add to her merits, Barrett is a sincere, lovely person. I never heard her utter a word that wasn’t thoughtful and kind — including in the heat of real disagreement about important subjects. She will be an ideal colleague. I don’t really believe in “judicial temperament,” because some of the greatest justices were irascible, difficult and mercurial. But if you do believe in an ideal judicial temperament of calm and decorum, rest assured that Barrett has it.
This combination of smart and nice will be scary for liberals.
“I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed,” he notes at one point, which may be a jab at Democrats inclined to question her impartiality because of her religion. I wonder if he’s willing to say all of this before the Judiciary Committee next month given the utter insanity of America’s partisan climate when hearings begin, a few weeks away from a presidential election. He’d be a killer witness for Republicans.
As for how Dems are planning to handle this, they’re weighing their options. Personal attacks on the nominee herself seem much more likely to backfire than to advance lefty interests. (Which is not to say they won’t happen. See my point about toxic ruthlessness above.) Certainly they can and will accuse Barrett of being a fifth vote against Roe and ObamaCare, a talking point that’s much more likely to prove productive on Election Day. What’s uncertain at the moment is whether they’ll try to obstruct the confirmation process itself by slowing down Senate business so that a vote can’t be held before the election. Even if they could pull that off, is it in their interest to do so? I’m not sure.
One of the first strategic decisions will be whether to give the nominee her standard courtesy visits, many of which occur before a confirmation hearing, particularly with members of leadership and of the Judiciary Committee. Some, like Sen. Richard Blumenthal (D-Conn.), have said they won’t meet with the nominee…
Once the nominee gets to the hearing stage of the process, Democrats must decide whether to essentially protest the entire nomination and largely refuse to participate, or to engage and try to expose flaws in the judge’s background during what would probably be more than a dozen hours of questioning over two days.
Some activists are pushing Democrats to either boycott the hearings completely, or to use a rare maneuver to short-circuit the hearings after just two hours…
A number of Democrats — from liberals such as Sen. Elizabeth Warren (Mass.) to moderates such as Sen. Michael F. Bennet (Colo.) — have publicly stated that they want to use the confirmation process to highlight the outcome of a conservative replacing Ginsburg, particularly on health care. Some Democrats have argued privately that the best way to highlight that issue is at a confirmation hearing that will be watched by millions of voters.
They’d be complete idiots to boycott the hearings. The opportunity to grandstand on camera about Roe, ObamaCare, and the hypocrisy of blockading Merrick Garland while ramming Barrett through is literally the only part of this process that might work for them. If nothing else, they can use it as a chance to highlight the potential of Barrett casting a deciding vote in Trump’s favor in a legal challenge over disputed ballots that decides the election. Beyond that, skipping the hearing would be petulant and disrespectful to the nominee. And of course it would leave the GOP free to use its time to praise Barrett and ask her softball questions. She’s on record as saying that John Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute” in the Court’s famous ObamaCare case in 2012. If nothing else, Dems should show up and leverage that quote during Q&A to spook voters that she’s going to take coverage for preexisting conditions away.
As for obstructing Senate business to try to prevent a vote before the election, that’s tricky for them. If they have a way to do it, they’ll have to do it. For one thing, their base will demand it. And there’s at least a small chance that a resounding Democratic win on November 3 would give some Senate Republicans cold feet about holding a confirmation vote during the lame-duck session. The bigger Biden’s margin of victory, the bigger the chance that four GOPers would decide the public wants him to make this pick after all. (It’s a less than 10 percent chance, but it’s not quite zero.) The wrinkle for Dems is that if this seat isn’t filled by November 3, that’ll become a powerful argument for right-leaning voters who dislike Trump to hold their noses and vote for him again. Right, right, it’s powerful fuel for Democratic turnout too, but that fuel will be there for them no matter what happens with Barrett. Even if she’s confirmed before Election Day, they’ll turn out in droves to express their anger and fear. It’s GOP turnout that’s a bit variable, I think, depending on whether the seat is filled or not. Dems would be risking boosting that turnout if they managed to delay a confirmation vote.
I’ll leave you with this quote given to Vanity Fair by a Democratic Senate aide, which I think ably summarizes the message you’ll hear from Dems for the next month. Sure, there’s a chance Dianne Feinstein or Mazie Hirono or whoever will start screeching about Barrett’s allegiance to Catholic dogma, but Biden and most of the Democratic powers that be will be laser-focused on this: “This is at once really complicated and really simple. And it’s really simple because we took back the house in ’18 by talking about health care and talking about nothing other than health care… This is really simple, America. The ACA is about to go away because of this. Don’t use the word jurisprudence. Don’t talk about precedent. No one gives a sh*t. People care about their health care.”