Reality and Unreality: The Questioning of Amy Coney Barrett

Reality and Unreality: The Questioning of Amy Coney Barrett October 15, 2020
by guest writer Josh Caress
I believe that the questioning of Amy Coney Barrett revealed, at the highest level of our government, that American society has fundamentally cracked wide open.

I watched almost all of the Supreme Court confirmation hearings for Amy Coney Barrett over the last three days, and here is what I took away:

We are now all living in the world of Donald Trump.
And that world is untenable.

As a result of our president, his words and his actions, we now have no common ground left as Americans. Let me tell you how that played out over the last two days of questioning by the Senate Judiciary Committee.

As has often been the case with previous nominees, Judge Barrett was committed to not answering questions that might relate to a specific case that could come before her on the court if she is confirmed. We are used to this. While many in the past have offered more in the way of their opinions without giving an answer on how they might rule, we are used to nominees not answering how they would rule on such hot button cases as overturning Roe v Wade or the Affordable Care Act. For this reason, Barrett’s refusal to answer on these issues was not surprising or alarming. Besides, we know what she thinks about them from her past writing as an academic.
Where things got surreal was anytime questioning turned to the fundamental tenets of our democracy, rule of law, basic morality, human rights, even basic science. In the past, we as a society have agreed on enough of these things (or at least pretended we did) that we could inhabit the same reality while maintaining our disagreements.

That reality is gone.

Early on the first day, Sen. Diane Feinstein (D-CA) brought up a statement by the president from earlier this year in which he  suggested he might delay the election. Feinstein then asked, “Does the Constitution give the President of the United States the authority to unilaterally delay a general election under any circumstances? Does federal law?”

Barrett replied by saying that if such a case came before her she would need to read all the briefs, hear arguments from the litigants, etc. “I don’t think we want our judges to be legal pundits,” she said, “I would keep an open mind.”

Here’s the thing, though. Article II, Section 1 of the Constitution explicitly gives the power of setting the date and manner of the general election to Congress. Especially as a so-called “textualist,” this should have been an easy question for Barrett to answer. Does she need an “open mind” to read the plain text of the the document she holds sacrosanct and agree that it says what it says?

The reason it’s not so easy is Donald Trump. Like so many Republican operatives and staff over the last four years, Judge Barrett is in the position of having to sit before the entire country and deny reality—even in the plain black and white of her beloved Constitution—because reality would make the president look bad.

As the hearings went on, questions were asked about Roe v Wade, the ACA, gun rights, etc, and Barrett unsurprisingly refused to offer an opinion. But, here and there, a pattern emerged, when a question was asked, like Feinstein’s, that anyone in living in reality should have been able to answer, just as a matter of basic fact or morality.

Later on in the first day of questioning, Sen. Amy Klobuchar (D-MN) referenced the President’s call for his supporters to “watch the polls” for “fraud,” and a situation in her state of Minnesota where a contractor from out of state was recruiting people with special forces experience to be armed “poll watchers.” She then asked Judge Barrett, not to rule on the case of these men or a hypothetical case, but a simple question, “Under federal law, is it illegal to intimidate voters at the polls?”

Barrett once again declined to answer, citing her duty not to opine on “hypothetical” cases. But the question was not hypothetical. It was asking what the law said.

Klobuchar then cited the statute out loud, “18 USC 594 outlaws anyone who intimidates, threatens, coerces or attempts to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote.” She then asked Barrett, “Do you think a reasonable person would feel intimidated by the presence of armed civilian groups at the polls?”

Once again, Barrett declined to answer: “It’s not something really that’s appropriate for me to comment on.”

Why would these simple questions be hard to answer?  Surely anybody can agree that the law clearly forbids voter intimidation? The word “intimidation” is right there in the statute! And surely anyone can agree that armed civilian groups satisfy that criteria?
The only reason it’s not easy is Donald Trump. Four years ago, no one in public office or the judiciary would have disagreed on these basic facts of our law and fundamental rights. But Trump has repeatedly called for intimidation and violence from his supporters, since even before his election, against those he views as enemies, namely, anyone who doesn’t support him. So, once again, Judge Barrett had to deny the plain reality of the law for the sole purpose of not making the President look bad.
By the time it came to the turn of Sen. Cory Booker (D-NJ), the Senator had seen the pattern, and he called it out. “This is not normal,” he said repeatedly, before beginning his questioning of Barrett with these words: “I’m going to ask you some questions that if you had told me five years ago, that would be questions asked at a Supreme Court nomination hearing. I would have thought they wouldn’t be possible, but unfortunately I think they’re necessary to ask you. And I hope that you’ll give me direct answers.”

Then Booker proceeded to test the pattern Barrett had established: “I want to just ask you very simply. I imagine you’ll give me a very short resolute answer, but you condemn white supremacy, correct?”

“Yes,” Barrett replied.

And it was the last straight answer she would give him. Because Booker was able to take her simple reply to a simple question of basic humanity, and wield it against Trump: “Thank you. I’m glad to see that you said that. I wish our president would say that so resolutely and unequivocally as well, but we are at a time that Americans are literally fearful because their president cannot do that in the resolute manner in which you did. I’m sorry that that question had to even be asked at this time.”

By answering honestly and correctly to a simple question of basic humanity, and giving an answer that would have been absolutely uncontroversial five years ago, Barrett had opened up her benefactor to well-deserved criticism that called out the reality of just what kind of person the President is.

She wouldn’t make the same mistake again.

Booker continued, “Do you believe that every president should make a commitment unequivocally and resolutely to the peaceful transfer of power?”

Barrett demurred: “To the extent that this is a political controversy right now, as a judge, I want to stay out of it and I don’t want to express a view.”

A view? Is not the peaceful transfer of power perhaps the first fundamental rule of our republic? The first thing that set us apart from an entire history of despotic rule? And Barrett doesn’t feel like she can affirm that? Once again, it is because Donald Trump has refused to affirm that fundamental rule. He has refused to commit to a peaceful transfer of power. And so Barrett cannot hang him out to dry.

Booker went on: “Do you think that the president has the power to pardon himself for any past or future crimes he may have committed against the United States of America?”

Barrett dodged again, of course. Because she has to be aware that the President has committed multiple crimes in office and that he has claimed he indeed does have total power to pardon himself.

Booker: “If a president is personally responsible for several hundred million dollars in debt while he’s in office potentially to foreign entities, do you think he has a responsibility to disclose who his lenders are, especially given the Emoluments Clause?”

This time Barrett cited the fact that there is currently a case in court against the administration for this very issue, so she cannot comment.

Booker then closed this line of questioning with the following: “I think it’s disturbing that we’re having this conversation. I think it’s disturbing that we have a president that has brought what should be settled in the minds of most Americans. Presidents should reveal what their debts are, especially if they’re to foreign nations. Presidents should not be able to pardon themselves for future crimes. Presidents should condemn white supremacy. Presidents to commit themselves to the peaceful transfer of power.”

It’s almost like a litany that is reciting, not just for Judge Barrett, not just for the American people, but for himself. To remind himself what reality really is. “This is not normal.”

This is not normal.

On the second day of questioning, Judge Barrett continued to avoid the most basic questions of fact and morality that she believed could lead to contradicting or undermining President Trump’s fundamental disregard for facts, morality, and reality in general.

During Sen. Klobuchar’s second round of questioning, she put this question to Barrett: “Are absentee ballots, or better known as mail-in ballots, an essential way to vote for millions of Americans right now?”

Once again, Barrett’s response was telling: “That’s a matter of policy on which I can’t express a view.”

How is it a matter of policy to agree that mail-in voting is an essential way for millions of Americans to vote? Either it is or it isn’t (It is.). Even in non-pandemic times, millions of Americans vote by mail or absentee ballot for various reasons considered essential. Whether due to a disability, student status, employment out of state or overseas, etc. It’s just a simple matter of fact.

The reason Barrett didn’t answer was, once again, because of the President, who has spent the last few months trying to undermine the validity of mail-in ballots and talking openly about throwing them out, saying we had to “get rid of them.” (To be clear, he was not suggesting that Congress should address or limit mail-in voting through a legal, constitutional process. He meant he wanted to “get rid of” ballots in *this election* that have already been legally cast.)

When Sen. Booker had his chance to question Judge Barrett again, he returned to the questions of basic humanity that have been called into question due to the Trump administration. His plea was passionate and genuine.

He first asked Barrett about the specific “zero tolerance” immigration policy that was eventually abandoned by the Trump administration after public outcry: “So maybe I can just go back to asking just a simple question that I hope you’ll feel comfortable asking. It’s just what I think is an obvious answer again. But do you think it’s wrong to separate children from their parents to deter immigrants from coming to the United States?”

Once again, Barrett’s answer illustrated just where Trump has led us: “Well, Senator Booker, that’s been a matter of policy debate, and, obviously, that’s a matter of hot political debate in which I can’t express a view or be drawn into as a judge.”

So Booker appealed to Barrett’s humanity, asking one more time: “Just maybe I’ll ask it one more time. Do you think it’s wrong to separate a child from their parent not for the safety of the child or parent, but to send a message? As a human being, do you believe that that’s wrong?”

Barrett’s response: “Well, Senator, I think you’re trying to engage me on the administration’s border separation policies, and I can’t express a view on that.”

This is where we are, and it is indicative of where so much of our country is. Over the past four years, I have seen this play out in discussion after discussion, where an appeal to fundamental morality and humanity elicits defensiveness, as if these appeals are only some kind of trick to get someone to admit that Trump is wrong.

But it’s not just a problem on issues of human decency and morality. This attitude has also affected our relationship with recognizing basic facts.

This played out in Sen. Kamala Harris’ (D-CA) questioning of Judge Barrett later on that day. On the issue of voter discrimination, something with a well-documented history, both past and present, Harris repeatedly tried to elicit from Barrett the acknowledgement of a basic fact.

I’ll include the whole exchange, because it’s very telling:

Senator Harris: ‘Judge Barrett, my question, however, is do you agree with Chief Justice Roberts who said, “Voting discrimination still exists. No one doubts that.” Do you agree with that statement?’

Amy Coney Barrett: ‘Senator Harris, I will not comment on what any justice said. An opinion, whether an opinion is right or wrong or endorse that proposition.’

Senator Harris: ‘Well, I’m asking you… So do you call it a proposition or a fact? Are you saying you do not agree with a fact?’

Amy Coney Barrett: ‘Senator, I’m not going to make a comment. I’m not going to say that I endorse either the majority or the dissent in the case of Shelby County.’

Senator Harris: ‘Well, I just want to understand. Are you saying that you refuse to dispute a known fact or that you refuse to agree with a known fact?’

Amy Coney Barrett: ‘Senator, I’m not exactly sure what you’re getting at with asking me to endorse the fact or whether any particular practice constitutes voter discrimination. I’m very happy to say that I think racial discrimination still exists in the United States. And I think we’ve seen evidence of that this summer, but as to engaging-‘

Senator Harris: ‘Do you think that voting discrimination exists based on rights in America, in any form?’

Amy Coney Barrett: ‘Senator Harris, there have been cases. We’ve talked in this hearing about the Wisconsin case that went up to the court involving voting. I think any thing, any opinion that I would express, and I don’t mean to signal that I disagree with this statement either. What I mean to say is I’m not going to express an opinion because these are very charged issues. They have been litigated in the courts and so I will not engage on that question.’

Once again, Judge Barrett fears that acknowledging even the basic fact that voting discrimination exists (something Justice Roberts said “no one doubts”) would lead to an implication of the Trump administration. And so she simply refuses to “engage in that question.”

Harris then proceeded to seek a similar acknowledgment of the basic reality of climate change, a scientific fact that has, of course, been repeatedly questioned and dismissed (without a shred of evidence) by the president, going against the entire worldwide scientific community.

This discussion played out similarly. Once again, it’s worth providing the entire exchange:

Senator Harris: ‘Do you accept that COVID-19 is infectious?’

Amy Coney Barrett: ‘I think, yes. I do accept that COVID-19 is infectious. That’s something of which I feel like we could say you take judicial notice of. It’s an obvious fact, yes.’

Senator Harris: ‘Do you accept that smoking causes cancer?’
Amy Coney Barrett: ‘I’m not sure exactly where you’re going with this, but the notice that smoking causes-‘

Senator Harris:
‘Question is what it is. You can answer it if you believe it. Yes or no.’

Amy Coney Barrett: ‘Senator Harris, yes. Every package of cigarettes warms that smoking causes cancer.’

Senator Harris: ‘And do you believe that climate change is happening and it’s threatening the air we breathe and the water we drink?’

Amy Coney Barrett: ‘Senator again, I was wondering where you were going with that. You have asked me a series of questions that are completely uncontroversial, like whether COVID-19 is infectious, whether smoking causes cancer, and then trying to analogize that to eliciting an opinion from me that is on a very contentious matter of public debate. And I will not do that. I will not express a view on a matter of public policy, especially one that is politically controversial because that’s inconsistent with the judicial role, as I have explained.’

Senator Harris: ‘Thank you. Thank you, Judge Barrett. And you’ve made your point clear that you believe that’s a debatable point.’

Judge Barrett was defensive, insinuating that Sen. Harris was somehow trying to trick her by asking her to acknowledge the scientific fact of climate change in the same way she would acknowledge other scientific facts. But what Harris showed is that Barrett was willing to accept similar scientific facts as long as they were not ones that the President has been openly skeptical of.

What Barrett’s answer reveals is the same thing revealed in the questions of basic morality. She calls the issue “very contentious” and “politically controversial,” but the only reason that would be the case is because we have a President that refuses to acknowledge reality. And Barrett is more interested in avoiding the contradiction of President Trump’s “reality” than she is in affirming the truth.

And that has led us to a society in which reality has been thrown into doubt across the board. As we are seeing this play out in the highest levels of our government, it becomes clear that we have reached an untenable position.

The Trump takeover of American society is complete. Not because he has won everyone over, but because his four-year project of gaslighting an entire nation has led us to this place where we can no longer agree, on even the most basic level, what reality, truth, morality, or facts even are.

Judge Barrett has shown us that even a smart, capable, respected judge can be brought into Trump’s orbit and forced into a defensiveness that keeps her from acknowledging fundamental facts and morality for fear of going against him.

As I’ve said, this same dynamic has been playing out with individuals and families across the country over the last four years. I’ve watched as people I once respected as smart and decent people have driven themselves into defense of the most egregious atrocities simply out of spite and defensiveness over admitting that Trump is wrong.

And I know many people who have had this play out in their own families, as they have been estranged from parents or siblings over these fundamental issues, issues that were not there before 2016.

We are not a nation polarized by differences of opinion. We are now a nation polarized by a difference in reality. Let me be clear what I mean by that: We have a President who does not live in reality. And he is bringing millions of Americans with him, either through their willing embrace of his delusions and cruelties, or, as with Judge Barrett, their refusal to affirm reality and stand up to the President.

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