The hearing - you know which one.

Well, I watched the last three days of the hearings. Normally I’d have watched the opening statements too, but I was traveling back from Bar Harbor, Maine, that day, and it’s a long drive. From the lack of dramatic headlines, it seemed pretty boring. I imagine the very same statements that were made for three days were made on the first too by everyone.

What was this about? Well, technically, this is the procedure, although hearings are not required by law. The nominee goes through the committee and if voted out, there will be argument and a vote the following week. I’m sure the Ds will do whatever they can to delay there too. Senator Graham, the chairman, took it in stride in the committee, but it’s cutting closer to the election for their vote and it might get dramatic. For the Rs, it was going through the motion and Graham taking a tough approach.

This was not Kavanaugh redux. Although some D Senators were a little impolite (hard to attack a judge personally who has 7 kids, two adopted from Haiti), it was relatively peaceful. For the Ds, this was an opportunity for campaign rhetoric. They mostly brought up the ACA, over and over, as if the judge was a super-legislator who should make policy decisions and they accused her subtly and not so subtly of having been put on the bench by Trump to vote for him if there is an election case and to overturn Roe v. Wade and the ACA. Ds in large have made it clear that they are going to try to make the ACA the defining issue of the campaign. While it’s true that there is a case ready when she is confirmed (if confirmed - but so far, so good) on the ACA, I still think the Ds are panicking over nothing. Benches usually, in past experience since I’ve been paying attention (about 40 years), move left, as Roberts seems to have done. And Gorsuch and Kavanaugh seem to be available to do so too on the right cases even more so. I think Trump would have to win the election and then get another pick from an empty seat now held by a liberal (say, Breyer retired), to feel that he has a solid right-wing majority. I know the Ds would rather have another D, but these are the cards right now.

The judge. They were all impressed that she didn’t use notes. I’m not that impressed. She has been a con law professor at Notre Dame and also knew her own cases. She’s in her 40s, so her memory should be sharp. Despite all the testimony as to her niceness (the blind law clerk she helped was a nice touch by the Rs), there was also a no-nonsenseness about her, but one that never lapsed into incivility. She was unafraid of the Senators, as a nominee should be and would push back and tell them when they were wasting their time.

Should she have answered more questions about her policies? This comes up every nomination. The judges don’t want to give personal opinions and often deny even thinking about controversial subjects. No one believes them, of course. Both sides like to call this the Ginsberg rule about no forecasts, etc., of whatever might come up before them. Gorsuch and Kavanaugh steered clear of it, but so did Sotomayor and Kagan.

The Ds pointed out that Ginsberg had, despite her no-forecasts, given her opinions. E.g., she’s all about Roe v. Wade. Sen. Durbin says that it is disturbing that she wouldn’t discuss cases or opinions with them and pointed out that Scalia (98-0) and Ginsberg (96-3) did. No one on the R side decided to tell him why, but I will. Here’s it in short – that was then, this is now. Since Ginsberg, there’s been a ratcheting up in incivility and partisanship. If Barrett gives opinions on anything, she knows that the Ds will demand that she recuse herself on every case they can, not to mention claim at the hearing that she can’t be fair. No R judge, in particular, is going to get a unanimous vote, maybe even not more than a few votes. Other than Roberts, who got 78-22 after what many commentators said, neither Alito, Gorsuch and Kavanaugh got 58, 54 and 50. Kagan and Sotomayor got between 63 and 68. In other words, some Rs are more likely to vote for Ds than vice versa. The last one, only a single D, Joe Manchin, the most moderate D, voted for Kavanaugh. Gorsuch got 3. Kagan and Sotomayor didn’t get much more, but more, 5 and 9 R votes. Kagan famously wrote an article saying she thought nominees should be more forthright about their views, but at her hearing, she said now that she was there, she changed her mind, and no one (that is, Rs) really pressed it. Why, because it was safe to do so when Scalia and Ginsberg (and even Breyer) did it, but it's not anymore.

But, you can skip all the other previous events and go straight to Kavanaugh’s hearing if you want. It was so hostile, so ridiculous, with Ds literally scheming and interrupting the proceedings with the same motions and pleas, to stop it, were (yes, my view) disgusting in their attacks on him and attendees screaming in the back of the room. Frankly, after that (I’ve said this many times), what many people describe as the worst thing they’ve ever seen in politics, the Ds are lucky they got a hearing to question her, rather than just a floor vote. Whatever the rules in the Senate, they should have changed them if it would have stopped such a vote, because this is what the Ds say they are going to do.  After Kavanaugh, I'd abolish these hearings until there was a promise to behave. Frankly, I think there was - just privately agreed to between Sens. Graham and Feinstein.

In this hearing, the Ds made only one ridiculous political maneuver.  On the day of scheduling the vote for the committee, which is done in the “business session" of the committee, only Durbin showed up among the Ds, claiming per the rules that at least two in the minority needed to be present. Graham didn’t care and casually held his vote anyway, saying to Durbin that if the Rs did what the Ds were doing, he (Durbin) would also hold the vote. Big surprise, Durbin had all the D senators proxies to vote and then they all showed up pretty much right away. Hiding in the hallway no doubt. And, not that the Rs don't do similar things. Nonsense, but, compared to Kavanaugh, cake.

Is this the first time ever that a Supreme Court confirmation has been held in an election year? Not by a long shot. As Sen. Cruz explained, one-half of presidents have nominated a justice in an election year. It’s happened 29 times. When the senate was the same party, they mostly got through, 17 of 19 times. When the senate was the other party, they mostly didn’t, only 2 of 10 times. Of course, it is easy to say the Rs are hypocritical for not holding a hearing for Garland, but doing it for Barrett. Fair argument. And, in my view, although legal, it was foolish and didn’t help. But, from their perspective, it was turnabout is fair play. They hold against the Ds not only Kavanaugh, but the Thomas “high-tech lynching” and the famous Borking (the only nominee I’ve watched testify who I would not have voted for*). And, Miguel Estrada was kept from a vote on a Court of Appeals after coming out of the committee with 100%. The Rs have their own “bad acts” when it comes to nominations (e.g. Garland) and Jesse Helms used to make me sick with his refusals to bring D nominees to a vote. But, when it comes to the judges, the Ds have the worst of it, even including Garland (who’s non-hearing which I disapproved).

As I mentioned a few weeks ago the first time I addressed this issue, in no way do I buy the appeal to let the people decide. The people decided in 2014, 2016 and 2018 elections, who the president and senate are. This will be true for me no matter who the parties in power are.

*With Bork, one, I thought there was something off about his personality. That might be unfair, but it was my impression. Two, though he had abandoned it, he at one time had some crazy first amendment notions, not favorable to free speech – and if he held it at one time, what might come next?*

That being said, the Ds weren’t that bad this time. Sen. Feinstein said at the end of the hearing that it was one of the best hearings in her memory. Interesting, considering that the Ds acted as if the world was ending during it, or at least health care.

Some personal character assassination by me.

As I’ve said before I do not like this Sen. Mazie Hirono at all. I’m sure she thinks that she is fighting the good fight, but she has given the nod to left-wing terror groups like Antifa, and strikes me (this is pure opinion) as someone who will okay with re-education camps, torture and the like should she ever be in power. During Kavanaugh, I despise many, most, of the Ds on the judicial committee for what was a great breach in our democracy and behavior that reminded me of the Bolsheviks when they didn’t quite have power, and the Nazis on their rise. But, she was the worst of them. Even though most of the Ds behaved well, politicizing the Coney-Barrett hearing, but mostly respectfully, she was again the worst. Her twisting of words and her question as to whether the judge had ever raped or assaulted anyone just make a lot of people think she’s literally – mentally ill. I don’t know if those are the right words, although I’ve used them myself. I just know I don’t like her and we will rue the day she has any power. 

The other two who stood out for me were Klobuchar and Booker (I take it as a given that Blumenthal is a reprehensible man, and that Durbin is hanging onto to decency by a thread). Klobuchar was the nice one in the Kavanaugh hearings. He even apologized to her at one point for lashing out (after he had been tortured). But, I think her presidential ambitions have gotten the best of her as she came out more assertive and strident. Again, this is my impression and someone who has different political beliefs might not agree with me. They’d perhaps see her as righteous and courageous. Whatever, if her questions had for me, really gone towards seeing if Judge Coney-Barrett was qualified, maybe I’d see it that way too. Sen. Harris, who was also pretty embarrassing, I’ll leave alone. She’s running for VP and nothing she says can be taken seriously.  The last one, I’ll leave for his own section.

Sen. Booker – please look in the mirror.

Look, he was part of the anti-Kavanaugh gang, and bears that taint like the rest of them. He seems to me, based on the primary debates, to have a far-left agenda much like most of his peers. But, despite that and the insecurities that have him repeatedly mention his Rhodes scholarship and his football prowess, I like him more personally than many of his peers on that debate stage – I guess he has found a good way to present himself. He's likeable, but I can like someone with whom I disagree, personally, even sometimes someone who has done me wrong or has committed a crime. Understandably, that is something that is hard for many people. Maybe I'm wrong.

Anyway, towards the end of the business meeting, he made an impassioned speech about fairness and non-partisanship. Those are my words, not sure he used them, but that was the tone of it. I thought it as a really good speech. I agreed to a large extent. But, I have some advice for him –

Great speeches like that are meaningless except when delivered to one’s own party. What he was doing is asking the Rs to give up their power, even though they were voted into the presidency and the majority of the Senate, just so that his party could exercise more power if Biden wins.

That, of course, would be reprehensible of the Rs. It is something they are entirely capable of, as I find the party cowardly, shrinking in the face of accusations that sting, like being called a racist. But, that’s one of the good things about Trump, for all of his personal faults. He usually stands up for people he appoints, like Kavanaugh, and, no doubt Coney-Barrett during what will likely be a last stand effort to stop the upcoming votes to send her out of the committee and confirm.

Of course, Sen. Booker’s speech was a lot more pleasing than Sen. Whitehouse, a clownish partisan in my book (it was he who made astonishing conclusions from Kavanagh’s calendars), who yesterday threatened to get revenge when they have the power, although of course he didn't use that word. What a laugh. The Ds are going to do whatever they can to forward their agendas regardless of what the Rs do when they have power. Both parties do that. E.g., the Ds used their power to ram the ACA down the Rs throats when it passed and the Rs will do whatever they can to say, see how you like it. Or not, because in the end, at least one or more Rs usually falters. At least, of late. 

Balance on the bench?

What happens if Coney-Barrett is confirmed? Will the bench swing very right? No doubt, it will swing rightward, but I don’t think that far. In fact, it will probably become more balanced, even with 6 conservatives.

Here’s why. Obviously, she’s a conservative. But, I think just as obviously she is dedicated to precedent and believes only rarely should it be reversed. But, there are three members of the “right” coalition already who will sometimes vote with the Ds in controversial cases, Kavanaugh, Gorsuch and Roberts, at least relative to the other two, Thomas and Alito.

Every year, the justices get an (unofficial) Martin-Quinn score (named after the authors of a 2002 paper), which measures the political ideology of the justices in a dynamic (that is, changing) way. So, zero is a perfect ideologically moderate judge. Positive numbers are for conservative ideology and negative numbers for liberal ideology.

In 2019, there were four generally liberal judges and five generally conservative judges. But, the liberals were more liberal than the conservatives. The liberals had a score (added up and divided by five) of -2.015. The cons had a score of +1.504.

In other words, the Ds were, by this generally respected measure 1/3 more liberal than the Rs were conservative. 1/3 is a lot. But, without something else, it is meaningless, as they are the minority. One of more of the con judges were more likely to cross-over than the Ds were likely to cross to them on this bench. There are many statistics on this, but, it is so well known, I don’t think it is disputable, that Gorsuch and Kavanaugh will cross the most of the judges, which Roberts a little behind. It may be opinion, but I think Roberts will be the most likely on cases that he considers of epoch importance. I trust Kavanaugh and Gorsuch do what they think is right, but I know longer trust Roberts, who I believe is bent on having his courts seen as less divided. Just an opinion. D judges do cross-over too, of course, on occasion, and even Justice Thomas, who has the most ideological rating of all of them.

Some criticism of the judge.

These hearings continue to be a waste of time, if, in some cases, deplorable. All we heard or learned from this hearing were things we already knew. I’m glad it was not as deplorable as the last one.

One thing that did disturb me that was said, however, was by Justice Coney-Barrett. After fending off every attempt to get her opinion on topical issues, she gave an opinion on the most contentious issue of the day. And it was something that MIGHT come before her on the court. That would be her opinion on George Floyd’s death. First, she said that she cried and had to explain it to her children. Then, she said that it was evidence that racism still exists in America.

First, let me say, of course racism still exists in America. I don’t know anyone who doesn’t think that. What’s controversial these days is what makes someone a racist. Is it being white? Is it refusal to acknowledge you are a racist if you are white? If you use different words you think are not offensive but others do, are you a racist? Does intending to discriminate matter at all? Or, God forbid, of course, is it because someone is actually racist? And, naturally, there are other questions (if you would not marry a person with a different shade of skin – are you a racist? If you tend to think people of one particular shade are less attractive - are you racist? Etc.)

But, no one knows at all if Officer Chauvin was behaving in a racist way, or just unconscionably without a racist thought. There’s no indication I’ve read that he dislikes blacks or has treated them worse in the past. Why does she think so? Clearly, the media and BLM narrative has succeeded with her.

Was I Derek Chauvin’s lawyers, I would argue that he cannot get a fair trial anywhere in the country after she stated that it was evidence of racism. They would lose, but, it would be a fair argument. And, what if, as criminal cases sometimes do, it comes to the Supreme Court? Should she recuse herself? I think she should. How can a litigant you've called a racist feel you are unbiased. However, not recusing herself would be typical of Supreme Court Justices. In WWII, some of the judges were very close with or worked for the executive branch. Justice Scalia was personal friends with Dick Cheney. Justice Ginsberg made inappropriate statements about Trump. Yet, they did not recuse themselves from handling cases involving the administration. I’d be disappointed if she didn't recuse herself in this situation, but it wouldn’t surprise me at all if she didn’t.

It was the wrong thing for her to say. She should have said – this could come before me as a case, so I can’t talk about it. Few, probably none of the Ds aren’t voting for her anyway, no matter what. Perhaps, the success of the BLM/media movement has been so successful (you can barely go to a store in some towns without seeing “black lives matter” on the window) she is convinced of the rhetoric. 

Another thing she said that disturbed me was her apologizing if she offended anyone in the LGBT, etc., community, by using the phrase “sexual preference.” One, no one knows the reasons for sexual orientation or preference. There is no gay or heterosexual gene that we know of, at least not yet (if there is, it will most likely be a combo of genes). No one knows if there is a psychological reason or some combination of physical and psychological reasons. So, saying "preference" rather than "orientation" doesn’t mean anything as far as claiming it is a choice (I don’t think it’s a choice how you feel, whatever the cause). 

Second, despite Sen. Hirono’s reflexive condemnation of her for using the phrase, Joe Biden, Ruth Ginsberg, Sens. Blumenthal and Durbin have used it. Why? Are they homophobic? Of course, not (I mean, I think). Shouldn't someone ask Sen. Hirono if they meant them. 

And, besides all that – of course the word “preference” is non-offensive. It has nothing to do with choice/not choice. If they except orientation as better than preference – where does orientation lead except to a preference for one gender. I have an orientation and a preference. It might even be the same thing. In fact, I think it is. 

But, what bothered me about the judge was her apology, which fits into the modern-day trends towards only identity matters, towards apologies when no ill-will was intended. Intent matters. Intent matters.

Last, and this is not really criticism of the judge (and the two above examples were very minimal complaints – people get room to make mistakes or disagree with me), but of our custom at the time. This was not NOT Justice Ginsberg’s seat. More, it is not a “women” seat. It’s a seat, and the nomination comes from the Pres. and the confirmation from the Senate. There was no reason to fill it with a woman, just as there will be no reason to fill a seat with a man because Breyer, Roberts, etc. leave, no reason to fill a seat with a black man or woman when Thomas leaves, a Hispanic when Sotomayor leaves, etc. I do not care if we have 3 black justices, 7 women (or why not 9 as Ginsberg said) or 4 LGBT. We need good judges, whatever that means to those whose job to appoint them.

All that said, she looks like a good one and I hope it goes smoothly in the next two weeks.