Judge Amy Barrett Confirmation Hearings

[James J Eivan]

President Obama submitted Merrick Garland's name about seven months before the election. Trump put forth Amy Barrett's name and Ruth Bader Ginsburg had not even been put in the ground yet. Trump has said that he wanted ACB so that when the election would go to the Supreme Court she would vote in his favor. He seems to think that it will go nowhere except through the Supreme Court. That's the difference, James. Remember, Mitch McConnell went back on his word as well as Lindsey Graham that the newly-elected president (incumbent or otherwise) should do the honors reflecting the will of the American people. Hypocrisy was reborn big time.

Mr Martim ... As Pr Fienen stated ... there is hypocrisy on both sides ... but your half truth continues ... you clearly and truthfully report what the Republicans said ... no doubt about that ... the problem remains that the truth you don't tell is that Biden, Harris, Schumer, Ginsburg and most other Democrats were ok with filling the SCOTUS seat in 2016 ... they are hypocrites today ... so by your standards, they should not be elected either.

Please don't yell hypocrisy unless you are willing to admit your hypocrisy!

[James J Eivan]

Mr. Gehlhusen,

Does a change in opinion ALWAYS mean one is hypocritical?  That is, do you have no room for an honest change of one's mind?

I have plenty of room for an honest change of mind.  I don't doubt that Lindsay Graham honestly changed his mind.  He's changed his mind on a lot more serious things like cozying up politically to a man who consistently insults the memory of Graham's long-time friend, John McCain.

But Lindsay Graham said, "I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, 'Let's let the next president, whoever it might be, make that nomination,' ".  He then doubled down on the sentiment in October 2018.

He has to live with that.  And if others judge him to be hypocritical on this point, they have a legitimate basis to do so.

Rev Bohler ... while voters are free to base their decisions on anything including lies, Mr Gehlhausen fails to acknowledge the hypocrisy of those with whom he agrees. Half truths abounds ... Mr Gelhlhausen consciously furthers the hypocrisy by partisanly condemning Sen Graham without applying the same standards to Biden/Harris, Schumer and others who spoke in favor of filling the SCOTUS seat 4 years ago.

[Mike Gehlhausen]

Mr. Gehlhusen,

Does a change in opinion ALWAYS mean one is hypocritical?  That is, do you have no room for an honest change of one's mind?

I have plenty of room for an honest change of mind.  I don't doubt that Lindsay Graham honestly changed his mind.  He's changed his mind on a lot more serious things like cozying up politically to a man who consistently insults the memory of Graham's long-time friend, John McCain.

But Lindsay Graham said, "I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, 'Let's let the next president, whoever it might be, make that nomination,' ".  He then doubled down on the sentiment in October 2018.

He has to live with that.  And if others judge him to be hypocritical on this point, they have a legitimate basis to do so.

Rev Bohler ... while voters are free to base their decisions on anything including lies, Mr Gehlhausen fails to acknowledge the hypocrisy of those with whom he agrees. Half truths abounds ... Mr Gelhlhausen consciously furthers the hypocrisy by partisanly condemning Sen Graham without applying the same standards to Biden/Harris, Schumer and others who spoke in favor of filling the SCOTUS seat 4 years ago.

James,

What have I posted that is a lie? 

I'm also curious just who is that you think I agree with.  In general, I've found the Republicans to be much less hypocritical than the Democrats on this issue.  They have pointed out in 2016 and now that if the Senate has the power to block a Supreme Court confirmation until after the election in an election year, then they are right in doing so.  If the White House and Senate are of the same party in an election year, then they are right to proceed with a confirmation.

Lindsay Graham, unlike most Republicans, went out of his way in 2016 and 2018 to say that he believed that a Supreme Court confirmation should wait until after the election even in the last year of a Republican president's term. 

And for the record, I do believe Biden/Harris and Schumer are being hypocritical on this.  If it was important to not leave a Supreme Court seat open in 2016, it is important now.  I think the confirmation hearings have shown that the Court will be hearing important cases on Obamacare and probably on election issues.

[David Garner]

If not for the Democrats' continued escalation of the practice of blocking and attempting to block justices on purely partisan grounds -- they admit after all that their objection to Barrett is not that she is unqualified, but that she is guilty of wrong think -- I would have much more sympathy for their position.

I believe the Republicans should have given Garland a vote.  Now, I also believe Republicans should play the same game as Democrats, who we all know would have appointed zero Trump justices had they held the Senate.  They tried to filibuster Alito, and they did filibuster Gorsuch, leading to the end of the filibuster in Supreme Court nominations.  At the time of the Gorsuch debacle, someone close to me said "the Republicans will live to regret this."  My response was simple -- "why would they? They aren't the ones who block judges along ideological lines."  But they should start, because that's the game now.  Everyone plays by the same rules or one side always wins.  So my preference would have been "up or down vote, every Republican votes not to confirm."  That's fair given how Democrats have behaved of late.  The last Republican nominee to get over 80 votes in the Senate was David Souter.  Ironically, the last before him was Antonin Scalia.  Republicans gave Ruth Bader Ginsberg over 90 votes, and Breyer 87.  Roberts got 78, but Alito, threatened filibuster and all, managed only 58.  3 Democrats voted for Gorsuch.  1 voted for Kavanaugh.  I'd wager zero will vote for Barrett.  I don't expect this to change in the future.

Now, I do think Republicans may live to regret not giving Garland a swift vote up or down.  The hypocrisy of that is simply galling.  As Mr. Gelhausen rightly notes, the hypocrisy of the other side is as well.  The problem is the other side lost twice, when had the Republicans done the right thing with regard to Garland, they'd have only lost once.  They feel a seat has been stolen.  Don't look for any quarter from Democrats when the shoe is on the other foot. 

Republicans still remember Bork.  The Bork nomination occurred when I was 17 years old.  I'm 50 now.  Memories are long.  I do confess to a great deal of schadenfreude watching the Republicans finally beat the Democrats at their own naked power game, however.  It's about 33 years too late by my estimation.

[Brian Stoffregen]

Mr. Gehlhusen,

Does a change in opinion ALWAYS mean one is hypocritical?  That is, do you have no room for an honest change of one's mind?

We would expect "repentant" (metanoioa) people to be "changing their minds" daily.

[James_Gale]

If not for the Democrats' continued escalation of the practice of blocking and attempting to block justices on purely partisan grounds -- they admit after all that their objection to Barrett is not that she is unqualified, but that she is guilty of wrong think -- I would have much more sympathy for their position.

I believe the Republicans should have given Garland a vote.  Now, I also believe Republicans should play the same game as Democrats, who we all know would have appointed zero Trump justices had they held the Senate.  They tried to filibuster Alito, and they did filibuster Gorsuch, leading to the end of the filibuster in Supreme Court nominations.  At the time of the Gorsuch debacle, someone close to me said "the Republicans will live to regret this."  My response was simple -- "why would they? They aren't the ones who block judges along ideological lines."  But they should start, because that's the game now.  Everyone plays by the same rules or one side always wins.  So my preference would have been "up or down vote, every Republican votes not to confirm."  That's fair given how Democrats have behaved of late.  The last Republican nominee to get over 80 votes in the Senate was David Souter.  Ironically, the last before him was Antonin Scalia.  Republicans gave Ruth Bader Ginsberg over 90 votes, and Breyer 87.  Roberts got 78, but Alito, threatened filibuster and all, managed only 58.  3 Democrats voted for Gorsuch.  1 voted for Kavanaugh.  I'd wager zero will vote for Barrett.  I don't expect this to change in the future.

Now, I do think Republicans may live to regret not giving Garland a swift vote up or down.  The hypocrisy of that is simply galling.  As Mr. Gelhausen rightly notes, the hypocrisy of the other side is as well.  The problem is the other side lost twice, when had the Republicans done the right thing with regard to Garland, they'd have only lost once.  They feel a seat has been stolen.  Don't look for any quarter from Democrats when the shoe is on the other foot. 

Republicans still remember Bork.  The Bork nomination occurred when I was 17 years old.  I'm 50 now.  Memories are long.  I do confess to a great deal of schadenfreude watching the Republicans finally beat the Democrats at their own naked power game, however.  It's about 33 years too late by my estimation.

Judicial nominations have become politicized because some judges have embraced the notion that the Constitution is a living document and that judges are effectively free to create from whole cloth new "rights" that they argue have been hiding for more than two centuries well beyond the Constitutional text.  When the Supreme Court does this, it has made law that is nearly impossible for elected representatives--those actually charged with making new laws--to change.


For whatever reason, those on the left have come to prefer this kind of judiciary.  Those on the right have come to embrace the notion that the courts' role is to interpret and not to legislate.  If all judges would pledge to leave legislation to the political branches, the Senate once again would be able to confirm judges almost unanimously and with little controversy.  Sadly, as the threat to pack the Supreme Court illustrates, I don't think that we'll see that day any time soon.

[Richard Johnson]

Virtue signaling as it is, I am glad that Amy Comey Barrett calmly accepted the criticism, said she did not mean to offend, and moved on.  While conservative media rage on and on about this, it defused the issue completely regarding the hearings.

I agree entirely.

[Richard Johnson]

An issue that has left some wondering ... Democrats routinely quote Republican statements concerning filling a SCOTUS seat in 2016. 

Any idea why the Republicans do not return the favor and remind the public that Democrats saw no problem with filling the seat in 2016 ... but are horrified that it is being done in 2020?

I've seen that said by Republicans many, many times.

[Richard Johnson]

Thank you Roger, you beat me to the punch.  I happen to think ACB is a solid candidate, as was Garland.  Saying the other side did it too, is IMO a weak argument akin to my children's well he hit me first.  For seven months and more the Republicans insisted that Garland not even get hearings, and yet they push this one through mere weeks before the election.  Symptomatic  of how far apart the two sides are that they can't even talk because they are so locked into all or nothing approach

Exactly. While I would prefer a different nominee, I think Barrett is an eminently qualified and reasonable choice for a Republican president, and there's no reason a nomination cannot be made in the last months of a term. My objection continues to be to the Republicans' refusal to act on the Garland nomination--and the hypocrisy (of both sides).

[Richard Johnson]

They have pointed out in 2016 and now that if the Senate has the power to block a Supreme Court confirmation until after the election in an election year, then they are right in doing so.  If the White House and Senate are of the same party in an election year, then they are right to proceed with a confirmation.

The problem with that argument is that logic would seem to require one to extend the "no confirmation" argument back two whole years--maybe even four. What's so hallowed about an "in an election year"? If there's a Republican president but the Democrats take the Senate in the midterm elections, couldn't they reasonably say, the very day after the election, "Well, the people have spoken; they've elected a Democratic Senate, and so we're not confirming anybody until after the next election when they have a chance to speak again"?

[Richard Johnson]

At the time of the Gorsuch debacle, someone close to me said "the Republicans will live to regret this."  My response was simple -- "why would they? They aren't the ones who block judges along ideological lines." 

Well, there were all those appointments made by Obama which never came to a vote in the McConnell Senate . . . Leading Republicans to chortle that "Obama left all these vacancies for us to fill."

But I agree with what I take to be your large point: the system is badly broken, and not likely to be repaired any time soon.

[Brian Stoffregen]

They have pointed out in 2016 and now that if the Senate has the power to block a Supreme Court confirmation until after the election in an election year, then they are right in doing so.  If the White House and Senate are of the same party in an election year, then they are right to proceed with a confirmation.

The problem with that argument is that logic would seem to require one to extend the "no confirmation" argument back two whole years--maybe even four. What's so hallowed about an "in an election year"? If there's a Republican president but the Democrats take the Senate in the midterm elections, couldn't they reasonably say, the very day after the election, "Well, the people have spoken; they've elected a Democratic Senate, and so we're not confirming anybody until after the next election when they have a chance to speak again"?

Couldn't they go even a step further and argue that we will not support anything the Republican president proposes because "the people have spoken" and prefer the Democratic platform?


We also need to remember that the largest block of voters in 2016 were those voting for "none of the above" by not casting a ballot. The second largest block supported Hillary. Donald came in third when looking at the popular votes. (Note well, I'm not disagreeing with the electoral college system that elected Trump as our president. I think it's stating too much when folks say that he has a mandate from "the people."

[Mike Gehlhausen]

They have pointed out in 2016 and now that if the Senate has the power to block a Supreme Court confirmation until after the election in an election year, then they are right in doing so.  If the White House and Senate are of the same party in an election year, then they are right to proceed with a confirmation.

The problem with that argument is that logic would seem to require one to extend the "no confirmation" argument back two whole years--maybe even four. What's so hallowed about an "in an election year"? If there's a Republican president but the Democrats take the Senate in the midterm elections, couldn't they reasonably say, the very day after the election, "Well, the people have spoken; they've elected a Democratic Senate, and so we're not confirming anybody until after the next election when they have a chance to speak again"?

I really wouldn't give anyone any ideas. 

Only a little more seriously, you make an interesting point here in that I do fear we could see this exercise in power legitimately last two years given that the mid-term elections now practically seem to kick off the campaign cycle for candidates running for the presidential election two years later.

I'd hope to think that a president of the other party would put forth a moderate candidate which could get confirmation.  But then that is exactly what Obama did with Merrick Garland, and we know how that worked out.

It also raises another interesting scenario.  What if Hillary Clinton had won in 2016 and, to extend the hypothetical even farther, the Republicans had lost the Senate?

I believe the lame-duck Senate would have moved to confirm Merrick Garland with all due haste as a justice the Republicans could reasonably live with.

Now, if you think the hypocrisy arguments this year have been strong, imagine what they could have been in this situation.  The Republicans, rightly and consistently, would argue that the people had spoken and therefore they were now proceeding to confirm the nomination placed before them.

The Democrats would be placed in a bind.  They would be hypocritical in withdrawing the Garland nomination or voting it down after having talked it up so much.  However, they clearly would have yearned to put forward a more liberal candidate especially if they had control of the Senate to ensure confirmation.

I'm thinking they would have risked the charges of hypocrisy and withdrawn the nomination anyway arguing that President Clinton had the right to nominate her own justice once she took office.  Perhaps I am wrong.  I do agree with Mr. Garner that this has all turned into a naked power game and looks to remain so for some time.

[aletheist]

Judicial nominations have become politicized because some judges have embraced the notion that the Constitution is a living document and that judges are effectively free to create from whole cloth new "rights" that they argue have been hiding for more than two centuries well beyond the Constitutional text.  When the Supreme Court does this, it has made law that is nearly impossible for elected representatives--those actually charged with making new laws--to change.

The hearings this week have been instructive about this. Several of the Democrats on the Senate Judiciary Committee evidently see no functional difference between the constitutional roles of the federal government's three branches--in their eyes, all three are supposed to enact policy. By contrast, several of the Republicans and Judge Barrett herself plainly affirmed that only the legislative branch is supposed to make laws, while the executive branch is supposed to enforce them and the judicial branch is supposed to apply them.

[David Garner]

They have pointed out in 2016 and now that if the Senate has the power to block a Supreme Court confirmation until after the election in an election year, then they are right in doing so.  If the White House and Senate are of the same party in an election year, then they are right to proceed with a confirmation.

The problem with that argument is that logic would seem to require one to extend the "no confirmation" argument back two whole years--maybe even four. What's so hallowed about an "in an election year"? If there's a Republican president but the Democrats take the Senate in the midterm elections, couldn't they reasonably say, the very day after the election, "Well, the people have spoken; they've elected a Democratic Senate, and so we're not confirming anybody until after the next election when they have a chance to speak again"?

I really wouldn't give anyone any ideas. 

Only a little more seriously, you make an interesting point here in that I do fear we could see this exercise in power legitimately last two years given that the mid-term elections now practically seem to kick off the campaign cycle for candidates running for the presidential election two years later.

I'd hope to think that a president of the other party would put forth a moderate candidate which could get confirmation.  But then that is exactly what Obama did with Merrick Garland, and we know how that worked out.

It also raises another interesting scenario.  What if Hillary Clinton had won in 2016 and, to extend the hypothetical even farther, the Republicans had lost the Senate?

I believe the lame-duck Senate would have moved to confirm Merrick Garland with all due haste as a justice the Republicans could reasonably live with.

Now, if you think the hypocrisy arguments this year have been strong, imagine what they could have been in this situation.  The Republicans, rightly and consistently, would argue that the people had spoken and therefore they were now proceeding to confirm the nomination placed before them.

The Democrats would be placed in a bind.  They would be hypocritical in withdrawing the Garland nomination or voting it down after having talked it up so much.  However, they clearly would have yearned to put forward a more liberal candidate especially if they had control of the Senate to ensure confirmation.

I'm thinking they would have risked the charges of hypocrisy and withdrawn the nomination anyway arguing that President Clinton had the right to nominate her own justice once she took office.  Perhaps I am wrong.  I do agree with Mr. Garner that this has all turned into a naked power game and looks to remain so for some time.

Lindsey Graham made a phenomenal case for a return to the days when presidents sent nominees, and if they were qualified they were confirmed.

He's right of course.  In the same way Bill Cosby would be right if he said "you ought not drug and rape women."  It's a mess for sure.