By Andrew C. McCarthy
Thursday, October 22, 2020
In a final infantile stunt, Senate Judiciary Committee
Democrats boycotted this morning’s vote on passing Judge Amy Coney Barrett’s
Supreme Court nomination out of committee and onto the floor. Barring some
unforeseen setback, she is going to be confirmed for a seat on the Supreme
Court by early next week.
The boycott was a pointless gesture because Republicans
had the votes necessary to move Judge Barrett’s nomination forward. It was a
radical break with democratic norms, by which we register dissent by voting
nay, not by picking up our ball and going home like poorly raised children.
Having crossed yet another Rubicon, Democrats will eventually learn, at some point
when it really costs them (as has their eradication of the filibuster in
confirmations), that what goes around comes around. And practically speaking,
the boycott was self-destructive, coming only after the nominee had impressed
Americans for two days with her intellect, poise, and good nature. Today, no
one much missed them at a committee vote that was a foregone conclusion.
Everyone, however, was watching on the two days when the Democrats deigned to
show up, and Barrett reduced them to an intramural competition for coveted
Ass-Clown of the Year honors.
Therein lies a telling difference between the two
parties. To win, Republicans must be sound in pursuing their strategies because
the media oppose them at every turn. They are thus fortunate to be led by a
superb tactician, Senator Mitch McConnell. Democrats, by contrast, are cheered
on by the media in pursuing their strategies, regardless of whether they are
sharp or daft. They are thus spared the criticism that disciplines politicians
to plan carefully.
If you’re the Democrats, and you’re willing to employ
such extreme measures as boycotting hearings to try to stop Barrett, then
the time to boycott is when she testifies. The point would be to prevent
her from impressing the country with her temperament and legal acumen. By such
a ploy, it might have been possible to delay the hearing — and delays that
could defer a final vote on Barrett until after Election Day are Democrats’
only realistic shot at killing it.
To be sure, Democrats do not control the committee and
probably could not have prevented Barrett’s testimony. But if they’d boycotted
it, and chairman Lindsey Graham had nevertheless pressed ahead with the
hearing, Barrett’s testimony could not have been as effective. Yes, Barrett
would still have been Barrett. What made her superior qualities truly shine
through, though, was the way she held up against hostile Democratic
questioning. Her sheer excellence palpably frustrated Democrats as the hearing
went on, leading to some memorably bizarro performances, particularly by
Senators Mazie Hirono and Sheldon Whitehouse.
Boycotting the hearing would have involved tough choices
— something Democrats rarely have to consider, with a compliant press always
willing to put a positive spin on even their most indefensible moves. So they
talk crazy about Court-packing, and when the polling cuts against them, they
try to redefine what Court-packing means. They think maybe they can portray
“handmaiden” Barrett as a dangerous religious zealot, but then they’re reminded
that they played that card at her Seventh Circuit confirmation, to disastrous
effect. They convince themselves that the hearing will be a win-win for them:
They’ll depict Barrett as Trump’s stealth weapon to invalidate Obamacare, while
simultaneously making an effective campaign argument about Trump’s weakness on
health care. But then the good ship Wishful Thinking crashes into the
iceberg of reality: The baseless contention that Barrett is hostile to the
Affordable Care Act gets no traction, and whatever good their health-care
campaign messaging does is easily outweighed by Barrett’s stellar performance.
In the end, all Democrats accomplish by their hearing
antics is a swing in the polling. A widening majority of Americans have
concluded that Barrett is terrific. In fact, they’d like to see her confirmed.
Maybe this would have happened anyway because Barrett is
unusually talented. Still, Democrats never made up their collective mind about
what their strategic priority was, and thus did not settle on tactics designed
to achieve it.
Contrast this with Republicans in 2016, when they were
challenged by President Obama’s nomination of Judge Merrick Garland to fill the
vacancy left by Justice Antonin Scalia’s sudden death.
As should have been the Democrats’ calculation with
Barrett, there was nothing spiteful in Senate Republicans’ opposition to
Garland. Politically, he is a centrist Democrat, so undoubtedly he’d have been
with the Court’s liberals on kulturkampf issues. But he was rightly regarded as
a good man. He earned a reputation for law-and-order seriousness as a
prosecutor and Clinton Justice Department official; and he is a fair and
competent judge on a very distinguished bench — the D.C. Circuit Court of
Appeals.
The Republicans’ objection to Garland was philosophical
and constitutional, not personal.
Philosophically, Garland is not Scalia. That might not
matter if this were a century ago. Back then, the Court was still overwhelmingly
a legal institution, not a political one, not perceived as an agent of social
change. Under those circumstances, Garland would be a fine, unobjectionable
justice. By 2016, however, the Court had long become the Left’s route to
achieving ideological objectives too unpopular to win political support in
Congress and at the ballot box. Consequently, a shift from Scalia to Garland
would be philosophically significant, in a way that is highly objectionable to
conservatives who make up the Republican base and who value judicial restraint.
Constitutionally, Senate Republicans had legitimate
authority to block Garland. A nominee does not get appointed unless the Senate
consents, and the Constitution does not limit the grounds for withholding
consent to professional or ethical reservations. Republicans had the votes to
deny consent. Plus, Democrats cannot be taken seriously when they complain
about the blocking of judicial appointments on philosophical grounds. They are
the ones who gave us this new reality, beginning 33 years ago when they derailed
the eminently-qualified Judge Robert Bork’s nomination. The confirmation
process has become a personally excruciating, politically fraught ordeal . . .
thanks to Democrats.
Republicans had no such animus against Judge Garland.
Their objection was on policy grounds: In significant cases that set national
policy (which conservatives do not believe the politically unaccountable courts
should be doing) Garland would be a reliable vote in favor of progressive
judicial activism, which conservatives do not believe is the legitimate role of
the courts.
Withholding Senate consent on that rationale was totally
valid. And it was not a position that called for a testimonial hearing.
Republicans did not dispute Garland’s competence and character, so there was no
need to explore those attributes through cross-examination. And the mere fact
of political disagreement is not a justification for caricaturing a decent
person as scary, asking him if he’s committed sexual assault, and mocking him
as a dangerous religious dogmatist with a stealth political agenda.
McConnell and senior Republicans understood that since
the objection to Garland was philosophical, and since they had no intention of
impeaching his fitness as a judge, there was nothing to be gained from calling
on Garland to testify at a Judiciary Committee hearing. There is no requirement
that there be such a hearing, and for the first 180 years of constitutional
governance such hearings were highly unusual — indeed, there wasn’t one until
Louis Brandeis testified in 1916.
By contrast, a Garland hearing would have had lots of
downside for Republicans. Garland would have been impressive and likeable. His
televised testimony would have increased public support for his nomination. The
Republican base would still have understood the stakes of a Scalia-to-Garland
shift, but some of the opposition would have softened. Logically, if
Republicans gave Garland a testimonial hearing, it would be much harder to
resist giving him a committee vote. If his testimony had gone well, as one
would have expected, it would have been tougher to hold Republicans together to
refuse to confirm him.
The Republicans’ strategic objective was to use the
prospect of left-wing Democrats filling judicial vacancies as a key campaign
issue. This would help persuade voters of the importance of keeping the Senate
in Republican hands. And it might just give underdog Donald Trump the lift he
needed for an improbable victory over Hillary Clinton. There was risk in the
strategy, to be sure. The Democrat-media complex would mercilessly attack
Republicans for denying Garland a hearing. If Clinton had won, she would
probably have supplanted Garland with a younger, more ideologically progressive
nominee.
But the risks were worth running. The press would not
have rewarded Republicans if they’d relented on Garland. And if Clinton had
won, she’d inevitably have stacked the Court with young progressives anyway (as
it turns out, there were three vacancies in four years.)
The lesson: You have to figure out what you want to
accomplish at the beginning, match up your tactics to that strategy, and keep
your eye on the prize, even if it means enduring criticism.
By the way, in blocking Garland, Republicans only did
exactly what Democrats would have done if they’d controlled the Senate in the
last year of a Republican presidency. In fact in 1992, when President George H.
W. Bush faced a tough (and ultimately unsuccessful) election contest against
Democrat Bill Clinton, then-Senate Judiciary chairman Joe Biden was not content
with vowing to block any Bush effort to fill a Supreme Court vacancy should one
arise. (None did, as Justice Byron White waited until Clinton’s election to
step down.) Biden further refused to act on Bush’s nomination of more than 50
judicial candidates, not least the nomination to the D.C. Circuit of John
Roberts — who, over a decade later under a different President Bush, became
Chief Justice John Roberts.
Today, Democrats do not control the Senate, so they were
not in a position to deny Judge Barrett a hearing. If they had it in them to
lose with grace, the increasingly influential burn-it-down component of their
base would not countenance it.
So, Democrats have now supplemented their erratic
behavior during Barrett’s hearing with a tantrum, boycotting the vote. It’s a
twofer: (1) By endeavoring to legitimize boycotting, Democrats have further
degraded congressional proceedings while paving the way for boycotting to be
used against them at some future point; and (2) after Judge Barrett performed
so well, Democrats now look much worse than they would have if, having embraced
boycotting as a tactic, they’d just gone ahead and boycotted her testimony. It
makes no sense to participate in the testimonial hearings that prove the
nominee is highly qualified but then not show up for the vote.
But then Democrats never have to think such things
through. By the next news cycle, the media will bury the boycott like it never
happened, or maybe just blame it on . . . I don’t know . . . Russian
disinformation?
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