Barrett won't answer questions, wants to be confirmed anyway

During her confirmation hearings, Amy Coney Barrett has repeatedly declined to answer questions about what she terms “hypotheticals.”

She says she doesn’t want to tip her hand on how she might decide a case that “might come before her.”

This is the case of a lawyer using taking an argument to an extreme. The fact is that, in an era rife with partisan extremism and frivolous lawsuits, any issue might come before her.

Oh, but surely the Supreme Court justices know enough to dismiss such frivolous lawsuits, and arguments that fall outside the bounds of mainstream judicial thought.

Or do they?

Lawyers are famous for using tortured arguments to arrive at absurd conclusions, and occasionally, judges go along. More than occasionally, they disagree with one another. The branch we’ve entrusted with interpreting our laws is routinely bogged down in endless appeals and, when those appeals are resolved by the Supreme Court (made up of former lawyers), often end in 5-4 votes that fall along ideological lines.

Barrett has sought to insulate a very few decisions — such as Brown v. Board of Education — by labeling them as “superprecedents.” These are, according to Barrett, laws that no one is challenging. But that can change. I’m sure some white supremacists would love to challenge Brown, for example, if the winds of popular opinion were to change and the money were there to back them up.

In other words, to Barrett’s way of thinking, popular opinion matters more than legal precedent. Let that sink in.

Stupor precedent

This is not merely a “hypothetical,” to use Barrett’s word.

There was a time when Brown was extremely controversial. Does that mean the reasoning behind it is any more valid today, simply because it’s no longer controversial? At what point does popular opinion sufficiently support a legal decision that it becomes a “superprecedent.” Incidentally, that concept isn’t in the Constitution and there are plenty of conservatives who don’t believe such a thing even exists.

For Barrett to pull an imaginary constitutional principle called a “superprecedent” out of her hat undercuts her very argument. Under her own rationale, if there’s no agreement that a superprecedent exists, it can’t be used as a binding legal argument. In fact, virtually nothing can. Everything is bound to reinterpretation in the light of shifting public opinion.

That a self-described Constitutional “textualist” and “originalist” should step outside the constitutional framework to create — or subscribe to — such an argument is not only the height of hypocrisy. It’s simply irrational.

If courts decide cases based on public opinion, they lose the very thing that gives them their unique character. They start doing the very thing conservatives accuse them of doing: They usurp the role of Congress and legislate from the bench.

That’s what new laws are: They’re new. It’s Congress’ job to create from a blank slate; it’s not the job of the judicial branch. It’s the judiciary’s job to interpret what’s already there. Yet in many ways, that’s what Barrett, during her hearing, refused to do.

Evasive action

Don’t get me wrong. Of course, judicial candidates should refrain from commenting on topics that are currently before the court, and on active cases that they haven’t formally considered. But to broaden that prohibition to include every possible topic that might come before the court is both unrealistic and evasive.

A nominee should be willing, and able, to answer on such broad questions as separation of powers; whether a president should be able to pardon himself or delay an election; the nature of conflicts of interest; and how voter rights should be protected. If a nominee can’t answer questions about fundamental rights and principles guaranteed under the Constitution, or enshrined in common law and common sense, that’s a huge red flag.

If a nominee dodges questions about foundational concepts, there’s simply no basis for senators to make an informed decision about a nomination beyond blind partisanship — which is what they tend to use anyway.

Barrett’s evasiveness (which, to be fair, has been practiced by other nominees, as well) is the confirmation hearing’s version of “taking the Fifth.” When this happens, it becomes virtually impossible to figure out what makes a nominee tick — what their core principles are and how they process information. Yes, you can look at their record. But if you can’t question them about that record without them saying, “that might come before me in a hypothetical case, so I can’t comment,” what’s the point of having a hearing?

Partisan prejudice

The point is, of course, that senators like to hear themselves talk. They spend more time stating their own opinions than they do asking questions or listening to answers — which makes those questions and answers all the more important in determining whether a nominee should be confirmed to sit on the court.

If a nominee isn’t willing to answer questions about principle and process, even in the abstract or “hypothetical,” there’s no way to determine whether a judge is competent, or whether she’s any better equipped to serve on the high court than any other judge. Are we supposed to rely simply on Donald Trump’s judgment in that matter? If so, we’re in a world of trouble.

At one point during her hearing, Barrett was asked what notes she’d been taking. She held up a blank tablet of paper.

The idea that a judge should be, on the one hand, someone with 20 years of expertise behind them and, on the other, a blank slate, seems self-contradictory. But by refusing to answer any “hypothetical” questions, that’s what Barrett wants us to believe.