Democrats should put an end to the Supreme Court confirmation charade. The Republican Party picks a right-wing judge off a list approved by right-wing advocates based on her record of hostility to abortion rights and to the court’s 2012 ruling upholding the Affordable Care Act and her skepticism about the constraints of legal precedent. Democrats should simply state as fact that these are her views and that is how she will rule.
Let’s also dispense with the farce of nominees lying — there is no other way to say it — that they have not made up their minds about cases and don’t think the court should make law. The first is false (otherwise Barrett’s nomination would have been unlikely) and the second is an empty phrase. The court makes law whether it establishes or denies a right to abortion, whether it says the Second Amendment is unlimited or that it is constrained in the same way other rights can be limited.
What, then, should Democrats spend their time doing in the Barrett confirmation hearings?
First, Democrats should ask her about the consequences of the opinions we know are coming. If the court strikes down Roe v. Wade, then a state such as Georgia could criminalize abortion, correct? Could the state, absent any federal protection, declare that abortion is equivalent to first-degree murder? As for the Affordable Care Act, if that is struck down, is there any federal law that would protect preexisting conditions? Lifetime health-insurance caps? So it all goes away, correct?
Barrett’s apparent softness on precedent raises all sorts of problems. If the court overruled Obergefell v. Hodges, then states could go back to banning same-sex marriage, correct? Would current same-sex marriages be valid? Didn’t Americans have the right to rely on the court’s decision in making life-altering decisions? Isn’t that one purpose of adhering to precedent?
What if there is no right to privacy, and Griswold v. Connecticut (striking down a ban on contraception) is reversed? Could states ban the use of certain types of contraception?
Republicans are pursuing an extreme agenda that is hugely unpopular. Let’s stop quibbling over whether Barrett believes in it. Assume she does, then try to get her to articulate the consequences.
Second, Democrats should put Senate Judiciary Chairman Lindsey Graham, R-S.C., and Sen. Charles Grassley, R-Iowa, in the hot seat. Make statements or make inquiries of the chair as to why they put their colleagues and staff at risk by refusing to take coronavirus tests. Ask other senators on the panel if they have been tested or if they have had contact with someone who tested positive (the president, numerous White House aides, the already-infected senators who attended Republican lunches). Democrats might even ask Barrett if knowingly or recklessly endangering others with a communicable disease violates the law, as it does, in virtually every state.
Third, Barrett should answer for her own irresponsible conduct. When did she have COVID-19? Could she have been shedding the virus at the White House event on Sept. 26? Why did she not insist the White House abide by the D.C. government requirement to wear masks and its ban on gatherings of more than 50 people? She knows the U.S. Court of Appeals for the 7th Circuit and the Supreme Court operate remotely for the health and safety of others, so why isn’t she insisting on the same guidelines at events relating to her confirmation? Did she feel obliged to accept whatever the White House rules were?
By appearing at the Senate hearings when she knows covid-19 protocols are not in place, is she contributing to another health hazard? News reports have told us there is an outbreak at a school her children attend. Has that been traced to the White House event? Did she request tracing information for her family members who were in proximity to people who later tested positive?
Fourth, Democrats should raise the issues of documents (speeches and an open letter) she did not previously provide. Why? Was she sloppy? Is it a coincidence all of them relate to her staunch opposition to abortion rights? As this nomination is rushed through the confirmation process, how can we be certain other materials are not hidden?
In short, Democrats have a rare opportunity to hold Republicans’ extreme judicial ideology up for public examination. Senate Democrats can tease out the consequences of putting someone such as Barrett on the bench, expose Republicans’ reckless disregard of the health and lives of others, and raise legitimate questions about Barrett’s judgment and independence.