One Of The Best Articles I've Read On Barrett's Elevation Into The Cesspool That The Supreme Court Has Become

IT'S pretty clear that the Republican-fascists on the Senate Judiciary Committee prepared for a hearing that the Democrats weren't stupid enough to give them, making Coney Barrett's putative religion the center of the debate, it's clear that's what they wanted to happen but the Democrats have, so far, been smarter than that. But that's not to say her religion should be entirely off-hands. In the National Catholic Reporter one of the best journalists today, Michael Sean Winters points this out.

Let's look at religion. Writing in his archdiocesan paper, Milwaukee Archbishop Jerome Listecki complained that Barrett was subjected to a litmus test because of her faith:

"Since Judge Barrett is a practicing Catholic, her litmus test as a Supreme Court nominee will be how well she has followed the Church's teachings. Was there a litmus test for those who claim to be practicing Catholics and either occupy or wish to occupy public governing offices before this? (I'm thinking of Joseph Biden, Nancy Pelosi or Andrew Cuomo.) Of course, any religious litmus test is against the Constitution of the United States. There may be other issues, but I believe that the pro-life issue is hidden in the subtle questions that will be asked to Judge Barrett. The religious litmus test, which is now required of other political candidates, is secularism."

If there is a litmus test for Catholics to join the court, someone must have given away the answers. If confirmed, Barrett will become the sixth Catholic on the court, and a seventh was raised Catholic. Out of nine. I guess we really should be terrified about the future of our religious liberty when we only have two-thirds of the highest court in the land.

Besides, it is Barrett's supporters who bring up her religion, and her big family, as often as do her critics. If it matters to conservatives, why is it not permitted to matter to liberals?

At the annual Red Mass at St. Matthew's Cathedral in our nation's capital, Bishop Michael Burbidge of Arlington, Virginia, preached the homily. He encouraged the assembled members of the court and other jurists and lawyers to "strive daily to bring Christ into the public arena. Be authentic witnesses of his saving work." If a Catholic is supposed to bring her faith into the public arena, surely non-Catholics are entitled to ask questions about it, as I pointed out when Barrett was first nominated.

That said, given the ridiculousness of the conversation so far, Democrats are ill-advised to focus on Barrett's religion. If last week's vice presidential debate is any indication, the Democrats understand that questioning Barrett about her faith is likely to backfire. Some questions in that regard are undoubtedly bigoted and others may be legitimate, but politically, it doesn't matter: Questioning another person's faith is bad politics. As Melinda Henneberger helpfully pointed out, "All faiths are at least a little bit weird to those outside of them."

Then Michael Sean Winters blows a hole through the ideological smokescreen that Barrett as as other servants of oligarchy hide their ideological preferences behind, even as everyone in the friggin' room knows what they're doing, making some points I hadn't seen made before.

My objection to confirming Barrett remains her judicial philosophy, specifically her commitment to textualism, a kissin' cousin of the originalism espoused by her hero Justice Antonin Scalia, for whom she clerked. She defined textualism in a 2010 Boston University Law Review article:

The defining tenet of textualism is the belief that it is impossible to know whether Congress would have drafted the statute differently if it had anticipated the situation before the court. The legislative process is path-dependent and riddled with compromise. A statute's language may be at odds with its broad purpose because proponents accept less than they want in order to secure the bill's passage. The language may appear awkward because competing factions agree "to split the difference between competing principles." To respect the deals that are inevitably struck along the way, the outcome of this complex process — the statutory text — must control. A judge who reshapes statutory language to alleviate its awkwardness risks undoing the very bargains that made the statute's passage possible.

Law review articles are not easy reading, although this one was more interesting than most. I saw no flashes of that "brilliance" with which she is so often credited. (Nor have I discerned it in anything else I have read of hers.) But, reading the article, what you realize is that originalists and textualists also have to decide which interpretive canons to apply, and why, and with what limits.

The problem with textualism, then, is not that it holds that the text is essentially self-interpreting, that the meaning of the words is fixed, even though the meanings of words are never fixed. The deeper problem is that textualists present their theory in such simplistic ways for popular consumption — who wants a judge who undermines the text of the Constitution? — but in fact the reasonings they apply are just as complicated and open to personal adjustment as those deployed by the court's liberals.

Put differently, do you think a conservative scholar like Scalia or Barrett would continue to adhere to textualism or originalism if it repeatedly yielded results they did not like? They can all point to the case or two that prove the rule, for example, Scalia's vote to defend flag burning in the 1989 Texas v. Johnson case. But that was a one-off. If it had become habitual, don't you think Scalia would have gone looking for a new judicial theory?

Like originalism, textualism permits judges to state, as Barrett did in her 2017 confirmation hearings, that personal beliefs matter not a whit to the interpretation of the law. When asked by Sen. John Kennedy of Louisiana about her reaction to the court's 1965 Griswold decision that married couples had a constitutional right to procure and use contraception, Barrett first noted that she had not been born when Griswold was decided.

She then added, "Well, gosh, Senator, I think, again, whatever I might have thought about it — I first read it when I was a law student. But whatever I would have thought about it then or whatever I would think about it today wouldn't matter." She is simply going to rule according to what the law says.

 

I've been listening to this kind of bullshit before and from the Senate Judiciary Commitee going back decades, I've written about it almost from the start of my public writing when it was about Roberts and Alito lying as everyone knew they were lying and getting away with it, it being the friggin' law and lawyers who were doing, facilitating and daintily trying to respond to the lies.  Sheldon Whitehouse was about the first one I saw who effectively cut through that sham, more of his Democratic colleagues have this time,  Kloubuchar, Blumenthal, Booker were good yesterday.   But that's too little and too late.   

PS,  Since drafting this I listened to Senator Whitehouse's masterful dissertation on the dark money that the Supreme Court first released into our politics and now Republican appointees benefit from.   The Supreme Court is now the epicenter of corruption in our government, both in enabling corruption and its members being determined by that corruption.   It must be reigned in and cleaned up and the only real way to do that is by adding honest members to it and setting a fixed term for membership.   Other than the unlikely ability to remove the thugs through impeachment - though in the case of Kavanaugh forcing his resignation due to his perjured testimony might be possible - it's going to rely on radical action by Democrats.  I think one of the things that has to happen is that he original extra-Constitutional power the court gave itself, the ability to nullify duly enacted laws passed by Congress which become law, must be either strictly restricted to unanimous opinions or it must be gotten rid of altogether.  I favor getting rid of it.   It's a lot easier to change a law through the legislature than it is to get rid of Supreme Court made law.