A leftover from yesterday involving a shrewd question from Cory Booker and a rare weak answer from Barrett. There’s little Democrats can gain politically from this confirmation process: They can notch a few soundbites about Roe and ObamaCare, they can avoid demagoguery about Barrett’s faith that might alienate voters, and they can lay the groundwork for calling Barrett a partisan hack for Trump later if she ends up ruling in his favor in a ballot case that decides the election.
Booker in particular focused on that last part with his questions. At one point he asked her if a president can grant himself a pardon. She declined to answer, understandably, because that’s a legal question that actually might come before the Court. She was asked by others whether the president could ever unilaterally delay a national election and whether his fans can try to intimidate voters at the polls. Again, she declined to answer because both of those topics potentially involve legal questions. One has to do with emergency executive powers, the other with whether a certain type of presence outside a polling place might be criminal or protected as free speech.
I’m willing to cut her a wide berth in ducking all of those. Trump is capable of anything; she really might have to issue rulings on one or more of those subjects. (Soon-ish!) But it was smart of Dems to use their TV time to force her to duck in hopes of raising a little doubt in the mind of the average viewer about her independence. One of their main arguments against Barrett is that Trump clearly wants her confirmed so that there’s an extra conservative justice on the Court in time for any election controversies. He’s aided and abetted the Democratic effort to paint her as a Republican apparatchik who’ll do whatever the president and party expect of her. Their questions to her about Trump are geared towards reinforcing that image.
As I say, she had good legal reasons to dodge them. But I don’t understand the need to dodge here.
Wow. Under questioning from Booker, Coney Barrett won’t even say that she thinks presidents should commit to the peaceful transfer of power pic.twitter.com/C7JveeawKZ
— Aaron Rupar (@atrupar) October 13, 2020
“That seems to me to be pulling me in a little bit into this question of whether the president has said that he would not peacefully leave office,” says Barrett. Right, that’s what Booker’s doing. So what?
There are legal questions adjacent to the subject of whether Trump should transfer power, like ballot issues in a swing state. If the presidency hangs on Pennsylvania, say, and there’s a legitimate dispute over who won that state depending upon how those ballots are counted, Trump might reasonably litigate that issue. Barrett shouldn’t opine on questions about balloting. But Booker’s not asking about that. He’s asking her, as a basic civic matter, from one citizen to another, should a president commit to peacefully transfer power if he loses an election?
The fact that she’s reluctant to offer an opinion simply because Trump said something to the contrary *does* make her sound reluctant to cross him, fairly or not. She calls it a “political controversy,” but Booker’s point is that peacefully transferring power shouldn’t be “controversial.” With any other president, it wouldn’t be. The question wouldn’t even need to be asked because it would go without saying that the loser of the election would respect the verdict of the people. By dodging unnecessarily, Barrett’s implicitly legitimizing Trump’s comments by treating them as a normal political dispute.
If Trump announced that he wants the Proud Boys to go into blue districts and beat people up at the polls to stop them from voting, and Booker asked her if it’s appropriate for a president to do that, should her answer be, “Sorry, that’s a political controversy”?
Recall that when Neil Gorsuch was questioned at his confirmation hearing in 2017, he *was* willing to criticize Trump for a civic transgression less ominous than the one Booker asked Barrett about.
Gorsuch reiterated in public what he had told many senators in private — that he is offended by attacks like the ones leveled by President Trump against federal judges who have ruled in the past year in cases involving him.
“When anyone criticizes the honesty or the integrity or the motives of a federal judge, I find that disheartening. I find that demoralizing — because I know the truth,” Gorsuch told Sen. Richard Blumenthal (D-Conn.).
“Anyone including the president of the United States?” Blumenthal asked, who had made the elephant-in-the-room comment.
“Anyone is anyone,” Gorsuch said.
That answer so annoyed Trump that he reportedly considered withdrawing Gorsuch’s nomination. “The president worried that Gorsuch would not be ‘loyal,'” a source told the Washington Post of Trump’s reaction to Gorsuch’s comments, as if it’s the job of a Supreme Court justice to be “loyal” to the person who appointed him. I don’t think Barrett will show “loyalty” to Trump any more than Gorsuch has, but appearances do matter. He was willing to flash a little independence at his hearing by criticizing the president, politely, for undermining the credibility of the judiciary. Barrett could have done the same thing yesterday, also politely, with respect to Trump undermining the credibility of democratic continuity. Why she declined, only she knows.
But she handed Democrats a lay-up by doing so, and they took it:
I asked Amy Coney Barrett today if she believes every president should make a commitment to the peaceful transition of power.
She wouldn't answer my question.
That's profoundly concerning for a judge who aspires to join our nation's highest court.
— Cory Booker (@CoryBooker) October 14, 2020
If, God forbid, she has to cast a deciding vote in a ballot case two months from now that ends up handing the presidency to Trump, we’ll see the clip of her and Booker replayed ad nauseam in the aftermath.
Anyway. Despite the forecasts of a thermonuclear confirmation battle over a pro-life replacement for Ruth Bader Ginsburg on the Court, the Barrett hearings have been surprisingly cordial and low-key thus far. I think that’s partly a testament to the acumen and temperament of the nominee herself but mainly it’s an unexpected byproduct of the unusual timing. Normally you’d think that a nomination so close to a national election would be more incendiary than usual. Instead, because Biden is leading comfortably and the Senate now looks likely to flip, it feels *less* incendiary. Knowing that there’s nothing they can do to stop Barrett’s confirmation, Democrats have chosen a “no mistakes” strategy in their approach to her that’s designed purely to protect their party’s electoral lead. If the implicit trade right now is that the GOP gets another justice while Dems get total control of government, the left is willing to accept that consolation prize. We’ll see how they feel about it in a year or two when Roe falls.