I Cede the Rest of My Time: Redux

[Two caveats:

As anyone that reads these pages is aware, my concern isn’t that President Trump has nominated Judge Barrett, or that she is likely to be confirmed in the Senate, but that President Obama’s nominee, Judge Garland, wasn’t – for purely partisan reasons.   The purpose of much of what follows would simply be to suggest to persuadable viewers that the Republicans are acting in an unfairly partisan manner, hopefully nudging them to vote against the GOP on November 3.

Judge Barrett would obviously waffle on a number of the questions below in a real session; what I offer is what I suggest that she would say if she was being candid.  If any of the learned legal eyes that read these pages disagree with my construction of either Roe or Heller, we can debate our interpretations over a refresher in healthier times.  : ) ]

Thank you, Mr. Chairman.

Judge Barrett, is consistency important in a Judge?

“Yes.”

Is consistency in judicial rulings important?

“Generally, yes.”

Is it fair to say that your philosophy of Constitutional interpretation is much like that of the late Justice Scalia?

“Yes.”

I want to read comments I understand that you made on CBSN on February 15, 2016, two days after the passing of Justice Scalia:

“Kennedy is a moderate Republican and he replaced a moderate Republican, Powell.  We’re talking about Justice Scalia, the staunchest conservative on the Court, and we’re talking about him being replaced by someone who could dramatically flip the balance of power on the Court.  It’s not a lateral move.  And finally the reality is that we live in a different time.  Confirmation hearings have gotten far more contentious.  I just don’t think we live in the same kind of time.  I think in sum, the President has the power to nominate and the Senate has the power to act or not and I don’t think either one of them can claim there’s a rule governing one way or the other.”  

Does that sound like you?

“Yes.”

I don’t want to put words in your mouth; in your remarks to CBSN, were you not indicating that you thought Justices Powell and Kennedy had similar judicial philosophies?

“Yes.”

And you were suggesting that when Justice Kennedy replaced Justice Powell, there wasn’t much shift in what you called “the balance of power” on the Supreme Court?

“Yes.”

Now despite their well-known friendship, Justices Scalia and Ginsburg had markedly different – in many areas almost polar opposite — judicial philosophies, did they not?

“Yes.”

In your comments to CBSN after Justice Scalia’s death, as a judicial conservative, you were expressing concern that President Obama’s nominee might be liberal — might, in your words, “dramatically flip the balance of power on the Court” — were you not?

“Yes.” 

Since you are an adherent of Justice Scalia’s philosophy, and notwithstanding your undoubted respect for Justice Ginsburg as a person and a jurist, won’t your confirmation — using your words — “constitute the dramatic flip in the balance on the Court” that you yourself warned against four years ago?

[When she waffles: “To give an answer like that, you obviously agree with my wife that I’m even dumber than I look.  I’ll move on.”]

Is it fair to say that at times Justice Scalia referred to his philosophy as “Originalism” – interpreting the Constitution according to what the Founding Fathers intended – and “Textualism” – a philosophy under which Judges should interpret the Constitution and laws as they are written?

“Again, generally, yes.”

Let’s look at the President’s Constitutional power to nominate and appoint federal judges and the Senate’s power to advise and consent on such nominees.  Is there any time frame set forth in the Constitution in which the Executive and Legislative branches need to exercise their respective powers?

“No.”

Do you believe that the Constitution inherently includes an obligation upon the Executive and Legislative Branches to act within … a “reasonable time”?

“No.  As I said, there is no rule governing their behavior one way or the other.”

Is it therefore your opinion that the Founding Fathers intended that either the Article I or Article II Branches – the President by failing to nominate judges, or the Senate by failing to consent to the President’s appointments – each in the last analysis has the power to extinguish the Judicial Branch?

[Don’t care what she says.]

Let’s look at this from another way.  When Justice Scalia passed away in 2016, President Obama, a Democrat, nominated Judge Merrick Garland, and Sen. McConnell, a Republican, refused to allow hearings to go forward on Judge Garland’s nomination, declaring that the American people should have a voice in the next Supreme Court Justice through the 2016 Election, because they might elect a Republican.  From general news accounts, is that your understanding?

“Yes.”

Do you personally know of any reason that would have made Judge Garland professionally or personally unfit for the Court?

“No.”

Now, four years later, in another Election Year, President Trump, a Republican, has nominated you, and Senator McConnell has allowed these hearings to proceed, when he didn’t with Judge Garland.  His stated rationale is that the President and Senate are controlled by the same political party, where they weren’t in 2016.  Have you heard that?

“Yes.”

I understand that you are a member of the Federalist Society. You are obviously familiar with the Federalist?

“Yes.”

Now I have the book and you don’t, but does this sound like what you recall Alexander Hamilton writing in Federalist No 1?:  Quote, “Nothing could be more ill-judged than that intolerant spirit which has at all times characterized political parties?”

“Yes.”

Admittedly omitting some phrases, does this sound like the thrust of what you remember James Madison writing in Federalist No. 10?:  Quote, “A zeal for different opinions concerning religion, concerning government, and many other points; … an attachment to different leaders ambitiously contending for pre-eminence and power; … have … divided mankind into parties, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good”?

“Yes.”

Does the word, “party,” in the context of “political parties,” appear anywhere in the Constitution?

“No.”

Would you agree that one – perhaps even an Originalist — might reasonably infer that at least Mr. Hamilton and Mr. Madison would have had concerns about Sen. McConnell’s rationale in proceeding with your nomination hearings while refusing to schedule Judge Garland’s?

“I couldn’t say.”

I’m sure you couldn’t.  Let’s move on very briefly to Roe v. Wade.  Justice Blackmun wrote in the opinion, “It is undisputed that at common law, abortion performed before ‘quickening’ — the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy — was not an indictable offense,” “That prior to quickening” – I’m condensing a bit here – “the fetus was to be considered part of the mother,” and “The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.” 

Do you agree that the “Common Law” referred to by Justice Blackmun would have been the prevailing state of the law at the time the Constitution was written?

“Yes.”

In District of Columbia v. Heller, your mentor, Justice Scalia, wrote:  “Like most rights, the right secured by the Second Amendment is not unlimited.  From Blackstone through the 19^th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”  He indicated, “We also recognize another important limitation on the right to keep and carry arms.  Miller [United States v. Miller] said, as we have explained, that the sort of weapons protected were those ‘in common use at the time.’  We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”  Finally, he stated, “It may be objected that if weapons that are most useful in military service – M-16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause….But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”

Judge Barrett, you may not know a lot more about the innards of weapons than I do, but I believe that in the classes of weaponry, the M-16s Justice Scalia referred to in Heller are akin to today’s AR-15s.  Is that generally your understanding?

“Yes.”

Can we agree that AR-15s have been the weapon of choice for perpetrators of a number of the mass shootings that our people have suffered in this century?

“Yes.”

And that AR-15s were carried by a number of the men that entered the Michigan legislature last spring to protest the Michigan Governor’s policies to address the Coronavirus?

“Yes.”

Have you heard reports that at least one of the men that demonstrated in the Michigan legislature has been arrested by law enforcement on the charge of engaging in a plot to kidnap the Michigan Governor?

“Yes.”  

Now, Justice Scalia simply stated in Heller that the Second Amendment right to bear arms is not unlimited; the rest is admittedly dicta.  Even so, do you agree that one could reasonably infer that he suggested that it might be Constitutionally permissible under the Second Amendment to – his word – ban weapons such as M-16s?

“Yes.”

Do you agree with Justice Scalia that an American citizen’s Second Amendment right to bear arms is not unlimited?

“Yes.”

Finally – are you aware that President Trump has recently said, “I think this” – meaning disputes relating to the presidential election about three weeks away – “will end up in the Supreme Court, and I think it’s very important that we have nine Justices”?

“I am.”

You’re excited by the opportunity to serve on the Supreme Court, are you not?

“Yes.”

And you are thankful to President Trump that of all the potential Supreme Court nominees he has publicly listed over the years, at this particular time he has chosen to nominate you?

“Of course.”

Thank you.  Mr. Chairman, I cede the rest of my time.