A Close Look at Judge Barrett’s Confirmation Hearings
Separating the Substance from the Grandstanding
Craig Roberts: Happy to have you along for the ride on this Tuesday edition of Lifeline! We’re heading straight into the election cycle. This is the most pivotal election of our lifetime — the stakes seem to be growing.
Amongst all of the items that are front and center is the nomination for the United States Supreme Court, which is technically a function of not what the next President will deal with, but the current President, and this is not unusual. Presidents typically have a shot or two of multiple opportunities at appointments to the highest court in the land. The record holder goes without saying, George Washington who had 14 nominations and 11 confirmed. FDR had a record of nine appointments to the High Court, and of course, if he got in his way in 1935–36, it would have even been more than that.
Andrew Jackson had five.
William Taft had six.
Of recent years in memory, Nixon was four.
Reagan was four.
Then Bush, Clinton, Bush, and Obama each had two selections to the High Court.
Now, obviously, President Trump with three. The stakes are extremely high in this particular nomination. So let’s get some insights as to what’s transpiring here, and how we can expect this to roll along just three weeks shy of the general election. Joining me now with some insights is the host of the Bob Zadek show, heard every Sunday at 8am here locally in the San Francisco Bay Area on 860 am the answer and you can get more details as well as information concerning podcast resources, Bob’s latest books too, online at Bobzadek.com. That’s bobzadek.com. Robert, as always, great to have you on the program.
A recent study found that the average American believes that 9% of the population has died of COVID since the beginning…
Bob Zadek: Thanks again for having me, Craig, appreciate it.
Craig Roberts: There’s a lot at stake in this election and certainly a lot at stake in this nomination. There’s talk about how will it potentially impact the mixture of the court when it comes to decisions on issues such as abortion gun rights, the Affordable Care Act, on and on the list goes. The nominee so far, certainly seems to have held her ground. It seems that Justice Barrett has no real agenda other than to say, “there’s no agenda.” Do you think that’s accurate?
Bob Zadek: I would disagree without seeming to use a play on words. She has an agenda. Her agenda is to maintain the integrity of the Constitution to decide cases on the law. Not on how sympathetic the litigants are. So I think she has a profound agenda which we hope every judge or justice in the case of the Supreme Court would have. I hope she does have an agenda. I know she does, and that’s what it is. I profoundly respect her for having that agenda.
Craig Roberts: Now at 48 years old, if indeed confirmed to the High Court, she could see a potentially significant tenure on the court. If she stays virtually for lifetime is most seemingly in recent years do, she could see 40-plus years on the High Court, and certainly leave a significant indelible mark as some of our certain press predecessors would have to be sure down through the years, and maybe in part that is some of the concern here, that as someone who could sit on the high court for decades to come, once confirmed, would have the opportunity to perhaps steer some of the decisions the High Court makes in certainly a more neutral direction.
Less legislation from the bench, as is often levied at the court, and more based on well, quite frankly, the rational basis standard for jurisprudence, which I think would be a welcome relief, given some of the other appointees down through recent memory — what some would consider to be more of a Constitution that is a living, breathing thing, and therefore, we have to kind of decide based on not what the founding fathers meant or intended, but rather what seems to be more practical, or in some cases, politically expedient for the now.
What You Need to Know in Advance of the Senate Confirmation Hearings
Constitutional lawyer Randy Barnett weighs in on the looming battle over ACB’s confirmation hearings
Bob Zadek: You said a whole lot there, Craig, as you often do, you pack a lot into a single sentence or paragraph. Given her age, she could leave her mark. I think he will leave her mark, not by her age, not by the number of cases she decides, not by the number of cases she is in the majority or in the dissent, but by the intellect and the integrity of her decisions. We hope she leaves a mark for her opinions, but I assure you that she will leave a mark that future generations will be profoundly grateful for. For her preservation of the rule of law.
Craig Roberts: How do you think she is going to fare through the questioning? So far, the last couple of days, she certainly has held her own. The tone and tenor of the discussion and questioning has decidedly taken on a certainly a different flavor from that of what we were exposed to during the Brett Kavanaugh hearings. This is feeling more like the Neil Gorsuch nomination hearings.
Bob Zadek: I don’t think the question is how she will fare. I think it is how the Senators will fare. I have no doubt she will fare just fine, because she is simply answering the questions. You cannot fare badly by answering the questions. There is no question she will fare well, I dare say many of the Senators will not fare nearly as well. They will be shown as either ignorant of the Constitution, or petty or profoundly political.
“I don’t think the question is how she will fare. I think it is how the Senators will fare.”
The Confirmation Performance: Political Grandstanding
Craig Roberts: You touch on an important point because in watching over the last couple of days, and this certainly varies from senate member to Senate member, in some respects dependent upon whether or not the senator in question happens to coincidentally be up for reelection this year, the dialogue seems to feel more like campaign debate, as opposed to a thorough review of various qualifications for this lifetime appointment. Would you agree?
Bob Zadek: I would agree, Craig and I would summarize it by saying that the audience are misled by what these events are called. They are described as hearings. They are not hearings. They are performances. A hearing does not need a camera. A hearing is designed to get information that can be done in private without the attention of the media. Senators can go about collecting information so they can make a decision. These are performances, these are rehearsed, these are scripted. I will never grace them by calling them hearings. They are not at all hearings.
“They are not hearings. They are performances.”
Craig Roberts: At the end of the day, there really ought to be less of the political grandstanding and performing for an audience of 350 million as opposed to getting down to the key issues at hand here. And that is, the individual’s experience, the individual’s qualifications, and a sense of just how capable or incapable they may or may not be for the position. I always find it curious when there is a lot of time spent investigating how a particular potential justice would vote on an imaginary case, the facts of which are not known because the case has not yet come before the High Court. It is just pure speculation as to when it will.
Of course, none of the details that are so critically necessary for a justice to hear, and then render a decision based on the constitutionality of a law or the lack of same, and yet we seemingly want to put forward a bit of a litmus test based on political ideas or agenda as opposed to the pure qualifications or lack thereof for the individual in question.
While some see that as an important exercise and attempting to really gain thorough knowledge and understanding of the candidate, others perhaps see through a bit of that ruse to understand that it’s more political grandstanding than anything else, and perhaps even at certain levels, an attempt to try and shape the court, not in terms of who brings the best qualifications for reliance upon the the original intent of the founding fathers, but instead, who might help further along what agenda.
Bob Zadek: Let’s take the 800 pound gorilla in the room — a topic that’s of interest to your audience, the topic of abortion. The Supreme Court case that gets all of the attention is Roe vs. Wade. People often discuss how you feel about Roe v. Wade. Now, for you and Craig to sit around having a beer and talk about how we feel about Roe v. Wade is kind of silly, because it is asking whether or not a certain case has reached the right decision, according to the Constitution. Not the right decision, according to morality, not the right decision based upon whether abortion is something that is a positive or negative act. It is based upon the application of a certain event to the Constitution or vice versa.
How one feels about abortion has little or nothing to how one feels about the case. The case is of questionable constitutionality. By that I mean that well-meaning intelligent constitutional scholars can reach different conclusions on whether the court properly applied the Constitution to the facts before it in Roe v. Wade. That is a different conversation from how one feels about whether abortion should be limited, modified, regulated, or criminalized as a matter for society. They are two very different questions.
Therefore, a decision about the practice of abortion is totally different than a decision about an opinion about a certain case, which is decided on technical constitutional grounds. No one should care about how one feels about the act of abortion. It is only a question of whether the case was properly decided. To give another even easier example. How does one feel about murder? Well, everybody’s opposed to murder. Well, what if the party doing the killing was acting in self-defense? Well, then the killer doesn’t go to jail. It’s a question of whether the law says the act is not in dispute, and whether that act is criminal or not. Two totally different questions.
Craig Roberts: The only way that a question of that sort could bring any substantive meaning is if there was an example case that may be potentially headed toward the court, that could then give us a glimpse into the understanding that the individual in this case, Mrs. Barrett has in relation to constitutional law and the framework that establishes in which a decision will be rendered based on the constitutionality, or lack thereof, of a particular law or rule. That makes perfect sense.
Judge Barrett’s Religious Views: More Grandstanding
Craig Roberts: In relation to the other questions, insofar as her religious background and whether or not that’s a qualifying point or a disqualifying point, what is your opinion when certain aspects of the questioning becomes so terribly intimate and personal? I get the sense that they want to somehow either have a person pass a belief-litmus test, or check the entirety of their beliefs at the door, neither of which I think is very practical.
Bob Zadek: As to religion, the Constitution expressly speaks to that issue, and says that there cannot be a religious test for any public office. So that cannot ever be a disqualifier, or a reason to award somebody a position.
As to whether it’s appropriate questioning, that’s a different issue. Now, the Senator is allowed to ask the question, but the point is, whether, as a political matter whether that’s the right thing to do. If people feel that is wrong, the people have a remedy at the ballot box. I think the senators should not ask about religious beliefs and are only pandering to somebody, and they are clearly conducting what is supposed to be a hearing.
The hearing is supposed to elicit information to help them decide when they ask a question, when they know the answer in advance, they clearly can’t be trying to get information to help them decide. Therefore they are, as I said, at the opening of our show, they are simply performing for a constituency and earning points within the political establishment by asking the question. That is offensive to me. Because, Craig, it’s like, when you ask somebody a question, and you know the answer, then you have another motive, other than to learn the answer, which you already know.
Craig Roberts: Final question for you tonight. Robert, there’s been a lot of this debate as to whether or not it’s appropriate this close to the election to be engaging in these hearings. There are arguments in both directions, but based on history at the end of the day, there’s nothing in the constitution that somehow forbids the hearing or the appointment of a replacement justice. And in fact, there’s plenty of history that suggests that up to the 11th hour in presidential tenures, this has been done.
So I think that is an interesting debate from a political standpoint. But from a constitutional standpoint, it is very much a moot point. What however, might be an interesting dynamic here is that the Republicans enjoy a 53 to 45 majority over Democrats, though with the two independents, both caucus with the Democrats so we would suggest perhaps that they may lean in that direction. That said, we mentioned earlier, it’s an election year, might somebody decide to at the last minute jump ship?
Could there be certain Senators like Susan Collins of Maine or Lisa Murkowski of Alaska, that might at the last minute decide, “nope,” they don’t want to vote with the majority? That being the case, if it becomes a tie. Typically, the Vice President is the tiebreaker. Would that have anything from a constitutional standpoint coming into play here, given the fact that the tiebreaker is the vice president, who is running for reelection? Anything at all in that?
Bob Zadek: It’s only a political issue, not a constitutional issue. Everything that has happened has happened well within the confines of the Constitution. As will be the court packing, if the Democrats choose to do so, as many people including myself, fear they will.