To Comfort The Afflicted
And Afflict The Comfortable

To Comfort The Afflicted And Afflict The Comfortable

Saturday, December 5, 2020

#GivingTuesday                               Observercast

The Confirmation Hearings That Weren’t

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There were times when I crowded in front of stores selling televisions to watch Anita Hill or Clarence Thomas, to see Robert Bork borked, to catch the latest on Brett Kavanaugh.

This time, I was sitting in my house with a television that I never turned on.

Why bother?

Senate Majority Leader Mitch McConnell said it, and it’s all that matters: “We have the votes.”

And he does. The vote may cost Susan Collins her Senate seat and may cost Republicans control of the Senate, but that’s a small price to pay if, finally, conservatives don’t have to wring their hands anymore about the failures of Chief Justice John Roberts.

Roberts has done everything he can to keep the Supreme Court out of partisan politics and to not make it an issue during presidential campaigns.

But John Roberts doesn’t matter anymore.

Judge Amy Coney Barrett, the presumed next justice, said absolutely nothing of substance at her confirmation hearing, which is precisely what she was assigned to do.

But she has written three telephone books’ worth of articles, essays and even signed ads expressing her opposition to Roe v. Wade. She has been writing to earn the attention of conservatives with her unerring commitment to “originalism” – which means the Constitution means what it meant in 1787.

Figuring out how those guys would have dealt with privacy in a technologically wired world might confound even the most committed originalists. Originalism, like federalism, is one of those doctrines you bring out in the hopes that folks won’t recognize that, actually, you just lost.

I can’t help but think of my friend Merrick Garland, such a brilliant and thoughtful judge, and the mark he might have made on the court.

This is a tragic game we are playing. We will all be losers.

So we add three and they add four more and then we cut by two and the entire idea of the court – lifetime appointment as protection against politics – has become the most political institution.

Why even bother with a hearing?

Poor Ruth. This is the last thing Ruth Bader Ginsburg would have wanted, not simply the choice made by President Trump but the degradation of the Supreme Court itself.

Why listen to them if it really is just all politics – about who has the votes?

If that is all that law is and what all the Supreme Court is about, and if this Republican Senate is going to insist on cramming through a nomination at warp speed with no deliberation because it can, then who will care about what the Supreme Court says?

The rule of law – our democracy depends on it. Undermining the judiciary, which is what this bum’s rush to confirmation does, undermines the very fabric of trust, which allows a court with nine people to make decisions that we follow, like them or not. Do we really want to put that at risk for one more vote on the court?

Yes. The Republican Party does.

And unless someone has a change of heart between now and Oct. 29, there is nothing Democrats can do except keep voting for Democrats so that Congress and the administration will respect our rights, even if the Supreme Court is no longer in that business.

Susan Estrich
Susan Estrich
Estrich served as a law clerk for Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia and Justice John Paul Stevens of the U.S. Supreme Court. In 1988, she was the campaign manager for Michael Dukakis' 1988 presidential run, even though she had never before managed a political campaign. She was the first female campaign manager of a major presidential campaign, and the first female campaign manager of the modern era. [5] [6] Estrich appears frequently on Fox News as a legal and political analyst, and has also substituted for Alan Colmes on the debate show Hannity & Colmes. She writes regular articles for the conservative website NewsMax, for which she is a pundit.[7] She is also on the Board of Editorial Contributors for USA Today.[8] She is currently a law professor at the University of Southern California Law School and a political science professor at its affiliated undergraduate school. Before joining the USC faculty in 1989, she was Professor of Law at Harvard University, where she was the youngest woman to receive tenure.[9] On January 10, 2008, Estrich joined Quinn Emanuel Urquhart & Sullivan, LLP, a law firm based in Los Angeles, where she chairs their Public Strategy in High Profile Litigation: Media Relations practice area. [10][11] She writes a nationally syndicated print column distributed through Creators Syndicate.