Emil Guillermo: The soft stonewall of Amy Coney Barrett

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Amy Coney Barrett is playing it safe, not saying a thing. Just trying to look above the fray, as a judge and mother of seven (including two adopted from Haiti), as the Senate Judiciary Committee considers her nomination as a Supreme Court justice.

She’s no Kavanaugh (and all that entails). But she’s no Mother Teresa either.

Surely, people must know something’s up when she deftly avoided answering any direct question from Democrats on Tuesday. And these questions were all about real issues the American public really wants to know before someone is appointed to the high court for life.

You know–health care, abortion, same-sex marriage, voting rights. What did she say about any of that? Not much.

From Barrett’s point of view, she doesn’t have to say anything. She’s a judge who could potentially rule on those issues, she said. Besides, she’s not one of the electeds, not a politician.

Not exactly.

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The best Senate performance on Day 2 was by Sen. Sheldon Whitehouse (D-RI), who gave Barrett a break. Whitehouse didn’t give her a chance to display her genial evasiveness or to avoid answering his pertinent questions. Instead, he made her sit while he described how the judiciary is slowly being bought off and politicized. Private donors, through such entities as Donors Trust, are sinking millions of dollars into the Federalist Society and the Judicial Crisis Network to create a conservative federal judiciary, Whitehouse said. They have played a role in the placement of judges at the highest levels, from the selection of judicial candidates to the development of talking points used by senators in the Barrett confirmation hearing.

It’s like the script is written and the Senate votes are cast before the candidates are even picked.

It makes Barrett little more than a plug-and-play conservative judge.

“People who are watching this need to understand that this small hearing room, and the little TV box that you’re looking at, are a little bit like the frame of a puppet theater,” Whitehouse said. “If you only look at what’s going on in the puppet theater, you’re not going to understand the whole story. . .You’re certainly not going to understand the forces outside of this room who are pulling stings and pushing sticks and causing the puppet theater to react.”

Whitehouse says it’s all about power and money. He tells the story here.

After Barrett’s morning session, it felt like some truth had entered the hearing room.

Barrett denied being a puppet, of course, as she dodged questions with nothing but a blank notepad before her. But when all you’re doing is saying nothing, do you need many notes?

It made me a little miffed.

If she’s good enough for the Supreme Court, there is absolutely no reason an Asian American shouldn’t be on the high court right now, were it not for politics.

That’s why Barrett is there, and not one of us.

She’s the handpicked torpedo of a president who on numerous occasions has said he’s out to eviscerate the Affordable Care Act, a/k/a Obamacare.

And now with Justice Ruth Bader Ginsburg’s passing, Trump has put Judge Barrett in the express aisle, ready to check out of the Senate and on to the Supreme Court in record time.

My fear is that with Barrett on the high court, the American public will leave the democracy store with 12 items or less. And none of them will include affordable health care for people with pre-existing conditions, or safe and legal abortion, or same-sex marriage, or LGBTQ workplace rights, or voting rights. All things we’ve grown accustomed to in modern contemporary life.

In an exchange with Sen. Mazie Hirono (D-Hawaii), Barrett said she would take into account the real world consequences of the parties in cases before her. But then Hirono asked if that meant she agreed with Justice Ginsburg, who wrote a number of dissents criticizing the majority’s failure to consider the real world impacts of their decisions. To that, Barrett said she didn’t know the context of Ginsburg’s dissents. Barrett just stuck with her basic talking points, context and the law..

The least adversarial questioners were Republicans, like Sen. Lindsey Graham (R-SC), the Judiciary Committee chair whose name has become synonymous with hypocrisy.

Remember, Graham insisted, “Use my words against me.” And those words? “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.”

If Graham and other Republicans had kept their word, the Supreme Court vacancy wouldn’t be filled until after the 2020 elections.

Instead, Graham is conducting the Barrett express for Trump. That comes with privileges, like throwing the first pitch. I thought he got one of the more revealing answers from a fresh Barrett on Tuesday when he asked her to describe “originalism,” in plain English.

“In English," the judge said, “that means that I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it, or that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views on to it.”

So not only does she deny the Senators, she’ll deny the march of time! Her context? The founders.

That really informs everything. She wouldn’t talk about the Affordable Care Act, although it’s why she was picked. Nor would she talk about recusal if she had to rule on the issue. She wouldn’t talk about Roe v. Wade, though she didn’t deny signing on to newspaper ads denouncing abortion. How did people feel about abortion in the 18th century?

The numbers in the Senate aren’t there to stop Barrett’s nomination to the Supreme Court. A committee vote on Thursday is planned, with a full Senate vote before Halloween. That’s scary fast.

But these hearings aren’t exercises in futility. They sound an alarm that lets people know the Court is in a very different time and place than when best friends Justices Ginsburg and Scalia, who agreed to disagree, were both approved with over 90 bipartisan votes in the Senate.

That’s when judges were seen as judges.

As the Barrett hearings continued Tuesday, the Supreme Court illustrated the new world. It declined to hear a case involving the Trump administration’s violation of the emoluments clause of the Constitution. It also ruled that the administration’s 2020 Census deadline could be cut short, resulting in an undercount of immigrants and people of color.

That’s the political context in which we’re mired, with the judicial branch having a greater role than ever in shaping, forming, and preserving the policies that affect our lives.

It will be up to a spirited and informed public to take an even more active role to put that all in check.

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Emil Guillermo is an independent journalist/commentator. Updates at Follow Emil on Twitter, and like his Facebook page.

The views expressed in his blog do not necessarily represent AALDEF’s views or policies.

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