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| Image obtained from CNBC |
Looking back briefly at Barrett's 11-hour-session answering questions from senators yesterday, there was a definite set of performances and essentially campaign-style speeches being put on by both sides of the aisle. Democratic senators argued that the confirmation process itself should not be done so close to the election, pointing out hypocrisy on the part of the Republicans who had blocked the election-year nomination of Garland in 2016 and taking firm stances against the rushed 2020 process. Republican senators pushed back on anticipated attacks on Barrett's religion that never truly came while asserting that it was in fact the Democrats who were being antagonistic. But between the partisan fighting and reelection campaigns, there were certainly some interesting moments that caught my eye. There are many journalists and news organizations covering these historic hearings, with hundreds of thousands of perspectives, but I wanted to take a moment before Barrett returns for a third day of proceedings to brush aside the election and messy political speeches and look at and examine some of the questions, responses, and just general legal jargon and judicial terminology that stuck out to me as I watched it all go down.
Hypotheticals and the Judicial Process
One of the big topics of the day was a hypothetical question posed by Democrats regarding whether or not Amy Coney Barrett, if confirmed to the Supreme Court, would recuse herself from ruling on any cases arising from the 2020 election. Recusal, simply put, means that a judge steps back from making a decision on a case that poses a conflict of interest, or even one that has the appearance that the judge can't be fair. The idea is that since Barrett has been nominated by Trump so close to the election, if she is confirmed to the Supreme Court and subsequently rules on a case involving the president's reelection, that could have the appearance of an unfair ruling and potentially delegitimize the integrity of the judicial system. Barrett's response to a call for her commitment to recusal was plain and simple: she would cross that bridge when or if it got there.
"I certainly hope that all members of the committee have more confidence in my integrity than to think I would allow myself to be used as a pawn to decide this election for the American people," she stated, assuring the senators that she "would take that question very seriously." Barrett's response to the request for recusal was echoed in her other responses as well, such as when the judge was asked how she would rule on certain cases. Citing "judicial process", Barrett was unable to answer in specifics many questions from both sides of the aisle. Cases brought up included the potential overturning of Roe v. Wade (the legal precedent for the right to abortion), mention of Obergefell v. Hodges (recognition of same-sex marriage nationwide), and an upcoming case regarding the Affordable Care Act (also known as Obamacare).
Barrett left a lot of questions unanswered, including whether or not voter intimidation is illegal (which it is) and whether or not a president should be able to postpone an election (and according to the Constitution, the power to determine the date of the election rests in the hands of Congress.) While it is understandable to not opine on potential cases that haven't happened yet or those which you don't know all the facts, it is odd that one would opt not to answer when the law is pretty clear as to what that answer should be. It is worth noting here that Barrett subscribes to the judicial philosophy known as originalism and considers herself a textualist.
Judicial Interpretation
Originalism is a type of judicial philosophy that determines how a judge interprets the law, usually regarding the U.S. Constitution specifically. With originalism, a judge looks at the text of the law itself and the intent with which it was written. Textualism is somewhat similar, except the focus is on the text alone, without consideration for the intent of the original authors. Originalism and textualism are often thought of as the opposition to the Living Constitution philosophy, which holds that the U.S. Constitution is meant to evolve with the times, as the framers of the Constitution back in 1787 could have never guessed how their law would need to be applied in 2020. The Living Constitution philosophy is what the Supreme Court Justices often use when trying to determine the constitutionality of modern-day laws dealing with issues the framers of the Constitution never considered, like Internet privacy, data security, and other technology-related legal battles. This is also how cases such as Roe v. Wade and Obergefell v. Hodges have been decided. Critics call it "legislating from the bench" as originalists and textualists prefer that new laws be written to handle new problems, but in the end, the role of the judicial branch is to interpret the law, which leaves a whole lot up to each individual Justice. A fun way to examine judicial philosophies is to look at Supreme Court dissenting opinions and compare them to the majority opinion of that case (especially 5-4 decisions). The differences in judicial interpretations become that much more apparent when you see the explanation from both sides.
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That being said, the third day of Amy Coney Barrett's Supreme Court confirmation hearing is scheduled to start at 9am today (October 14, 2020). If you see anything in the news that sticks out to you, or if you are watching the hearings tomorrow and notice anything that you think I should write about, let me know in the comments below! This is my first blog post in the realm of political science and law, and I anticipate my future law-related posts may get more in-depth than this last-minute overview, but for now, I hope this post was at least able to be of some use! Thanks for reading! :)
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