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An Open Letter to the Leadership of the Democratic Party On the Amy Coney Barrett Judiciary Committee fiasco

What the fuck is your problem?

The Senate Judiciary Committee’s principled and relentless attacks on so-called “originalism” and “textualism” in constitutional jurisprudence during the Bork hearings in 1987 set that hot mess of racist and patriarchal legal apologetics back 20 years, requiring Scalia’s noxious reclamation project that produced Amy Coney Barrett’s starry-eyed zealotry.

The committee’s hearings on Justice Clarence Thomas in 1991 – presided over by your current presidential candidate – allowed an unqualified, biased and apparently traumatized GOP hack to assume his lifetime position, while Biden sat on his hands and allowed the GOP to smear Anita Hill, although her testimony shouldn’t have been necessary if (like Barrett, except much more so) the nominee’s thin experience for such a high post had been effectively exposed.

But forgetting all that in the crucible of October 2020 is just the usual Democratic party foolishness in the United States of Amnesia.

With the GOP violating every conceivable rule of fairness, justice and integrity trying to steal not only one (Scalia/Garland/Gorsuch) Supreme Court seat, but now two (Ginsburg/Barrett), plus a third Trump justice to join Brett “I like beer” Kavanaugh, and your current Vice Presidential nominee Senator Kamala Harris sitting on the committee, after having distinguished herself during the Kavanaugh fiasco as a skilled cross examiner in precisely this context, how is it that Dems didn’t let Harris handle at least 90% of the examination of Barrett?

Two weeks out from an election that’s a referendum on Trump’s authoritarian attempt to overturn the constitution and the rule of law, we need to know when, if ever, the leadership of the Democratic Party is going to start fighting and fighting smart! Win or lose after November 3, you need to step up or you will be swept away. Tragically the party’s nonstrategic performance during the Barrett hearings indicates that you are not up to the historic tasks before you.

On October 11, journalist Christian Farias published an Op Ed in the New York Times that argued what is to my mind a rather obvious point: “…[D]emocracy demands that one of the candidates on the ballot be the Democrats’ lead questioner at the confirmation hearing for Amy Coney Barrett that begins Monday. Kamala Harris isn’t just a member of the Senate Judiciary Committee, which Republicans control and is rushing madly to ram through President Trump’s chosen replacement for the Supreme Court seat formerly held by Justice Ruth Bader Ginsburg. She is also one of the sharpest questioners on the committee, setting herself apart in the nearly four years she has been in the Senate.”

Leaders of the Democratic party should not need such obvious advice. But once given they should be capable of following it. Tragically, Mr. Farias’ Op Ed was the only time I heard this commonsense strategic suggestion for taking on Trump, Barrett and the GOP/Federalist Society judicial counter revolution in the intense political crucible of October 2020. The course of events throughout the so-called hearing confirmed the soundness of the advice, and provided conclusive evidence, if any more were necessary, of the Democratic party leadership’s lack of guts and spine as well as brains they are willing to use in service of democracy and the rule of law.

This goes way beyond Senator Feinstein’s shameful and apparently senile praise at the end of the hearing for Senator Graham’s ramrodding abuses. Feinstein herself had actually managed to make a single cogent and moving point at the outset of the Dems’ questioning, about the abortion issue. Had she done that, and then yielded the rest of her time to her junior California colleague the ex-prosecutor, it would have set an excellent example for the rest of the committee, and I would be feeling much more confident about the Democrats’ capacity for leadership in the face of the deadly challenges we face. Similarly, Senator Whitehouse could show his dark money video and let Senator Harris ask Barrett about Citizens United.

Instead each Democratic senator droned on for 30 mutes on the first day, and another 20 the second day, mostly succeeding in boring the nation, and probably generating some sympathy for Barrett. Some lessons may have been learned from the Bork and Thomas hearings mentioned above. For example, all Dems on the committee demonstrated impressive message discipline (and cunning willingness to make arguments that are emotionally and politically appealing) by focusing overwhelmingly on the post-election challenge to Obamacare currently pending in the Supreme Court. While Barrett providing the fifth vote to overturn the Affordable Care Act in the middle of this pandemic might well be the quickest and surest way to get the USA to adopt a single payer Medicare-for-all system like the rest of the advanced capitalist world, it’s actually one of the least scary reasons to oppose Barrett’s consolidation of a Trump Supreme Court, but it might be the best way to use these hearings to affect senate races. It was a politically astute start. But the idea of following it up with a well-thought-out, professional and aggressive cross examination of Barrett by a competent ex-prosecutor (even when expressly advocated in the NYT) seems to be beyond the Dem leaders’ competence. What does that say about their abilities to lead in the enormous social, political, ecological and other crises we face?

When Senator Harris finally got her time to ask questions just before 7 pm on the first day of the hearing, she almost immediately extracted from Barrett the admission (also made a few other times but never followed up on) that on the issue of the above-referenced ACA case we have to trust her “integrity” that she hasn’t promised Trump she’ll strike down Obamacare.

Barrett’s multiple requests to trust her integrity show that in the rush to jam her on to the court before the election she was underprepared. The correct answer from her perspective was “No, I wasn’t asked to promise to strike down the ACA, I wouldn’t have agreed to, and I have no predetermined secret or covert intent to do that.” Shaken by facing a skilled prosecutor asking clear questions about her understanding of Trump’s intent in naming her, she opened a door by raising the issue of her own integrity. This is way beyond Judge Barrett’s “integrity”. This is the republic under rule of law. She knows it and the America People know it. Why can’t Democratic senators on the judiciary committee act like they know it and fight?

As so often happens, the cross exam – if it were in the hands of a qualified examiner instead of broken up among a bunch of show dogs – after the witness’s misstep in asking us to trust her integrity, could then shift to a really effective application of the previously introduced theme of the illegitimacy of the confirmation process (what Sen. Durbin later called the “orange cloud” over the hearings…), confronting her with virtually every stupid and mendacious thing Trump has said and done, particularly in the last couple months, with emphasis on the super spreader Barrett nomination announcement, the senate GOP’s application of one rule to Obama & Garland, and the 180 degree opposite standard for Trump & Barrett, the continuing public health and economic catastrophe of the pandemic with no plan in sight from the worst president in US history who nominated her, giving aid and comfort to domestic white terrorists, refusing to commit to peaceful transfer of power, etc., up to and including refusal to grant RBG’s last “fervent” wish to await the outcome of the 2020 election before replacing her in this fiasco, instead of legislating pandemic relief for the American People, all structured by the theme that none of this fits any viable definition of “integrity” in terms of “adherence to moral and ethical principles, soundness of moral character & honesty”.

Another excellent line of questioning should have grilled Barrett on the inherently racist and patriarchal nature of originalist and textualist dogmas, stated in plain language. That would have been a real service to the country and the constitution, in line with the vital pedagogical aspects of constitutional law. A well-conducted cross examination of Barrett on 1) lack of integrity in this process; and 2) lack of integrity of original intent and textual jurisprudence, could lead up to the argument Barrett handed them that if she wants us to trust her integrity she has to withdraw from this completely illegitimate process. Indeed, Barrett’s colleagues at Notre Dame published an open letter to that effect! How can Democratic senators on the judiciary committee not even make the argument?

It won’t keep Barrett off the court (unless she’s way more principled than, as a disciple of the deeply dominationist bully Scalia, I expect she is), but it would show leadership, political life, strategic thinking and many other missing ingredients like basic competence in the Biden challenge to Trump’s authoritarian attempt. Senator Harris is right there on the committee with a proven successful track record at this difficult and historic role. How is it that Democrats’ leaders can’t see that? And since they can’t, what are the implications for the much more difficult, even overwhelming leadership challenges we face?

The American People don’t want a Trump, Inc. Supreme Court. (We don’t want Biden either, but he’s acceptable to the corporate leaders and donors of the second party of capital, so we’re stuck with him.) Trump is lying blatantly about how the utter chaos we suffer today is supposedly Biden’s America. It makes no sense, has gained no traction, and leaves him and McConnell completely dependent on voter suppression in November. Now the Dems can argue that another Rump rightwing extremist in judicial robes would bring even the Supreme Court decisively under white supremacist domination, normalizing and constitutionalizing Trump’s corruption and death.

Trump’s accountability for the pandemic, the west coast burning, the gulf coast drowning, continuous revelations of corruption, racist violence as state policy, and now the continued viability of the rule of law, all offer outstanding opportunities to motivate their base. The failure to use the Barrett hearings as an arena to fight for the living constitution and the fundamental human rights of the American People was a shameful and unforced error. I tremble for the future of the republic. You must do better.

Respectfully submitted,

Thomas Stephens

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