The new charade around Amy Coney Barrett
The feigned ignorance began with the president, who, when asked Saturday whether he’d be “okay if abortion becomes illegal in certain states as a result” of Barrett’s nomination, replied, “I never discussed that with Amy. This is something that — because it wouldn’t be appropriate to discuss.”
On the Sunday talk shows, Republican senators followed Trump’s lead. Asked what Barrett’s nomination would mean for Roe v. Wade, Sen. Mike Lee (R-Utah) played coy: “Only time can tell what will happen to any one precedent,” he told ABC’s George Stephanopoulos. After Sen. Debbie Stabenow (D-Mich.) told “Fox News Sunday” that Barrett would vote to strike down the Affordable Care Act, Sen. John Neely Kennedy (R-La.) claimed, “Unless Debbie is clairvoyant, I don’t think she knows how the nominee is going to vote.”
And on CNN’s “State of the Union,” Sen. Tom Cotton (R-Ark.) argued that Barrett should not be candid in her views on abortion, even though Cotton himself tweeted, “It’s time for Roe v. Wade to go” after being named in the president’s shortlist for the court. In typical Cotton fashion, the more he defended himself, the less sense he made, saying, “One way we could have this conversation is if Joe Biden would release his list of potential nominees.”
It’s not as if Barrett’s views are obscure or hard to discern. As The Post’s Ruth Marcus has documented in a series of articles last week, Barrett’s track record is clear and consistently conservative. Judicial opinions, law review articles and other comments demonstrate that her views on abortion, the Affordable Care Act, gun rights and so on are fundamentally at odds with most Americans’. Perhaps most notably, Marcus writes, “no nominee has openly endorsed views as extreme as Barrett’s on the doctrine of stare decisis, the principle that the court should not lightly overrule its precedents. … She would not hesitate to jettison decisions with which she disagrees.”
Beyond the public record, we can just use common sense. After successfully playing shutdown defense against the Obama administration, Senate Majority Leader Mitch McConnell (R-Ky.) and the rest of the Republican Party have hardened their hold over the federal judiciary these past four years. They will not gamble on a wishy-washy conservative justice now.
Republicans will defend trying to muddy the waters by claiming that both parties have maintained this fiction and that doing so protects public confidence in the judiciary as neutral arbiters. The first point is factually accurate but omits crucial context: By blocking Garland, the chief of the U.S. Court of Appeals for the D.C. Circuit, Republicans made clear that a judge’s views, no matter how sterling his or her qualifications, are all that matter now.
As for the second argument, here we can enlist Barrett’s own words — written against stare decisis, but if anything more apt regarding the charade of neutral justices: “The ‘protecting public confidence’ argument seems to assume that the public would be shaken to learn that a justice’s judicial philosophy can affect the way she decides a case and that justices do not all share the same judicial philosophy. This, however, is not news to the citizenry. … That is why Supreme Court nominations are an issue in presidential elections.”
But one suspects Republicans already know this. The truth is they don’t want to talk about Barrett’s views because they know most Americans don’t want Roe overturned or the ACA struck down or a vastly expanded Second Amendment. They may be fooling themselves, but they’re not fooling anyone else.
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