The Senate Judiciary Committee hearings that Democrats hoped would thwart Amy Coney Barrett’s path to the Supreme Court instead threaten to squash a greater hope of Senate Democrats: a majority.
Cory Booker of New Jersey asked the adoptive mother of two Haitian children, “You condemn white supremacy, correct?”
If the hearings did not galvanize demoralized conservatives, then why did CNN keep cutting away to below-the-fold matters?
Sen. Mazie Hirono asked the question on nobody’s mind: “Since you became a legal adult, have you ever made unwanted requests for sexual favors, or committed any physical or verbal harassment or assault of a sexual nature?”
Sen. Sheldon Whitehouse’s presentation Tuesday drew comparisons by Sen. Ben Sasse to the fevered thinking portrayed in A Beautiful Mind. It more closely resembled the big basement meeting in Pee-wee’s Big Adventure. Sure, Whitehouse never actually uttered, “Is there something you could share with the rest of us, Amazing Larry?” But his 30-minute remarks, relying heavily on breathy conspiracy theories and intricate flow charts, left room, just like Pee-wee’s three-hour presentation, for not a single question.
“The Federalist Society?” he ominously (and rhetorically) asked on Tuesday. “Remember this group?” On Wednesday, after submitting an article to the record by Sheldon Whitehouse, Sheldon Whitehouse talked about “Amicus groups coming in and flying false flags” and “teeing up arguments and ideas that will benefit the secret funders.” It went on like that all week — “Leonard Leo,” “Carrie Severino,” “Bradley Foundation,” etc. — without the presence of a Chuck (owner of the Bikeorama) to mercifully interrupt: “A long time we wait.… And I’m not sure if any of us can see what all this is supposed to mean.”
At least Pee-wee wasted everyone’s time in pursuit of his boss bike. Whitehouse bored in his failed attempt to prove that conservative interest groups want conservatives on the court. Maybe next time Rhode Island’s junior senator succeeds in convincing his colleagues that water is wet.
Just as Democrats fared well in comparison to their 2018, Brett Kavanaugh hearings selves, Republicans who showed up and did not drool or babble fared well in comparison to the 2020 Democrats.
Ben Sasse held a coming-out party of sorts in which he provided America an “eighth-grade civics” lesson in which he eloquently explained the difference between civics and politics. He observed, “We decided to forget what civics are and allow politics to swallow everything.”
Lindsey Graham, teetering on the brink of defeat, improved his reelection chances by standing center stage. Ditto for the disproportionate number of Republicans up for seats in the South where the social-conservative bona fides of Amy Coney Barrett coincides with the prevailing ethos. If the hearings did not galvanize demoralized conservatives, then why did CNN keep cutting away to below-the-fold matters?
Turn-up-to-eleven-and-repeat media narratives died this week. As many viewers believe Donald Trump packs the court by replacing RBG with ACB as believed that Elena Kagan, Sonia Sotomayor, or Stephen Breyer represented court packing because they replaced jurists appointed by Republicans. Ironically, the push to pack the court that depended on the Democrats taking back the Senate jeopardizes taking back the Senate because packing the court strikes normal people as a violation of norms and a banana-republic kind of cheating.
When President Franklin Roosevelt proposed adding members to the Supreme Court in 1937, Democrats held a 76-16 advantage in the U.S. Senate (really an 80-16 advantage as the four senators not affiliated with the major parties all fell well to the left of center). The previous year had witnessed Roosevelt winning all but Vermont and Maine in the presidential election. Yet even he, with all those advantages, still could not pack the court.
What makes Democrats in 2020 think they could do what Franklin Roosevelt’s juggernaut version of their party could not? This seems not just bluffing bravado but the type of campaign promise — like Mark Kelly vowing to nuke the Grand Canyon to Arizona voters or Alabama’s Sen. Doug Jones pledging allegiance to the ACC — made to undermine one’s own electoral chances. The last time Democrats threatened to pack the court it resulted in Franklin Roosevelt appointing a former member of the Ku Klux Klan who authored the infamous Korematsu decision. This time Democrats merely figure to win fewer Senate seats than they might have otherwise.
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History alone offers Democrats hope. Despite the purported mind-reading and prophetic powers retained by Amy Klobuchar, Kamala Harris, Patrick Leahy, and the rest, we cannot predict the jurisprudence of Republican-appointed U.S. Supreme Court justices. Gerald Ford placed on the court John Paul Stevens, who ruled that public interests could expropriate private property for the benefit of other private interests in writing the Kelo v. New London decision. George H. W. Bush appointed David Souter, who voted against his benefactor’s son in Bush v. Gore and with the abortion-uber-alles activists who so vigorously opposed him during his confirmation. Richard Nixon appointee Harry Blackmun wrote the majority opinion in Roe v. Wade. Anthony Kennedy, nominated to the court by Ronald Reagan after the derailment of two previous picks, wrote the majority opinion in Obergefell v. Hodges that prohibited states from defining marriage as between a man and a woman. George W. Bush appointee John Roberts saved Obamacare.
Amy Coney Barrett did not sound like any of them this week. Then again, they did not sound like them during their confirmation hearings, either. Democrats can pray, or meditate, on their positive thoughts and well wishes, that ACB becomes one of those Monty Hall, behind-door-number-three, surprise picks. Nothing she said this week indicates this. More importantly, we met a church-going Midwestern mom with seven kids and a legal paper trail rather than an eccentric New England bachelor who daily dined on an apple and yogurt for lunch and came to the Senate as a tabula rasa. The latter characters tend to surprise. The former ones? Not so much.
The juxtaposition between the brilliant Barrett and her dim Democratic interlocutors subtly conveyed the stakes this November. Amid their monotonous speeches occasionally disguised as questions, mind-wandering viewers asked a question to themselves: Do we really want to elect more of these buffoons in three weeks so they can control the Senate?
Democrats perhaps lost more than a Supreme Court seat this week.