Tag: Amy Coney Barrett

Assessing the Supreme Court’s new oral argument format

When the coronavirus pandemic forced it to move to telephonic oral arguments last May, the U.S. Supreme Court adopted a new format. Each Justice, in descending order of seniority, was afforded three minutes to ask questions of each side. The result was much cleaner, and in many ways more interesting, that the conversational scrum that typically erupts at One First Street. Justice Thomas has come alive, knowing that he will be able to get a question out without interruption. And while more junior Justices have some of the wind taken out of their sails for having to wait their turn, some of the follow-up questions have proven to be equally interesting and clarifying.

Of course, not everyone is happy with the new format, and Bloomberg Law reporter Kimberly Strawbridge Robinson has been all over it. Last month, she explained that it has been harder for advocates and reporters to get a sense of what’s on the mind of Amy Coney Barrett, the juniormost Justice, since she is last in the queue to ask questions. And recently, she reported that many of the Justices themselves dislike the format, specifically because it stifles the freewheeling discussion to which they are accustomed. In particular, Justice Breyer, who likes to tease out lengthy hypotheticals during oral argument, has been frustrated to hear the Chief Justice say “your time is up” before the question is even complete.

I’m not sure there is an answer that will please everyone. My gut instinct is to extend the time for oral argument — there is nothing magical about 30 minutes per side — but that will probably just invite more palaverous and repetitive questions. What about submitting written questions to the parties after the argument? I’m just spitballing here. But having enjoyed getting to hear Justice Thomas’s thinking during telephonic hearings — not to mention the clarity of not having everyone talk over each other — I would hate to just have a knee-jerk reversion to the old system when the pandemic subsides.

Barrett confirmed and sworn in

Amy Coney Barrett is now the newest Justice of the United States Supreme Court. After a 52-48 vote Senate vote, she was sworn in last night by Justice Clarence Thomas.

Justice Barrett has demonstrated the intelligence, legal skill, care, and demeanor to be an influential member of the Court for decades to come. As importantly, the Court is back to full strength and in a better position to carry out its Constitutional duties efficiently and effectively.

Senate Democrats to boycott Barrett confirmation vote, replacing themselves with cardboard cutouts

Please tell me this is a joke:

Democrats on the Senate Judiciary Committee plan to boycott Thursday’s committee vote on Amy Coney Barrett’s Supreme Court nomination as a protest against Republican efforts to rush her through before the election.

The plan hasn’t been finalized yet, according to a Democratic aide, but Democrats are preparing to fill their empty seats with poster-sized photos of people who would be hurt by Barrett potentially casting a deciding vote against the Affordable Care Act. These would be the same pictures of people Democrats had on display during Barrett’s confirmation hearing last week.

Sadly, it appears to be real. Rather than upholding their Constitutional responsibility to vote a Supreme Court nominee, Senate Democrats are planning to replace themselves with cardboard cutouts for cheap political gain. In doing so, they will:

    • Send the message to undecided voters, just days before a major election, that they are not serious about their fundamental responsibilities;
    • Sow the ground for Republicans to pull a similar stunt (perhaps with cardboard cutouts of aborted fetuses) the next time the Democrats have a Senate majority and a Supreme Court nominee; and
    • Provide some free advertising for South Park and Bud Light.

My goodness. What have we become?

A senator beclowns herself at a Judiciary Committee hearing (again). Facebook rushes to her aid.

I don’t usually comment on the culture wars, but every once in a while they connect directly to the operation and interdependence of the judiciary. This week brought an unfortunate example.

This blog has chronicled some of the inappropriate questions and comments from Senator Mazie Hirono (D-HI) in the course of her service as a member of the Senate Judiciary Committee — comments that have drawn sharp criticism even from members of her own party. Among other things, Senator Hirono finds it proper to ask Catholic judicial nominees about their private religious affiliations and practices, as if membership in a church or the Knights of Columbus has any demonstrable impact on a person’s ability to handle the solemn duties of judicial office.

Hirono’s aggressive disgressions were on display during last week’s confirmation hearings for Amy Coney Barrett. First, Hirono asked Barrett — a widely-respected judge, law professor, and mother of seven — if she had ever sexually assaulted anyone. Hirono followed this obscene question with a loud “tsk-tsk”ing of Barrett for her use of the term “sexual preference” during the hearing. Even though Judge Barrett immediately apologized for any unintended offense, Hirono proceeded with a baseless attempt to brand Barrett as a homophobe. (The meaning of the term is certainly in flux and is offensive to many, but it remains in use by, among others, Joe Biden.)

Questions and comments like Hirono’s — which erode public confidence in the court system without any concomitant positive contribution — are cause for civic despair. But in America, such despair often manifests itself as gentle mockery. And the Babylon Bee, a Christian humor site, came through with the following satirical story:

Senator Hirono Demands ACB Be Weighed Against A Duck To See If She Is A Witch.

This may not be the funniest thing I have read in my life, but it’s certainly good for a chuckle — especially for the large number of readers who instantly recognize the direct allusion to “Monty Python’s Holy Grail.” It’s not surprising, then, that the Bee piece was shared widely on social media, including Facebook.

But in a stunning bit of self-importance and tone-deafness this week, Facebook pulled down the article and demonetized the Bee’s own Facebook page, on the spurious grounds that the article “incites violence.” After an appeal and manual review, Facebook has apparently chosen to stand by its decision.

So Americans lose twice. First, a Senator squanders an important opportunity to substantively question a Supreme Court nominee in the name of advancing identity politics. And then, a long tradition of satire is crushed by a social media giant on the weakest of pretenses. Score another point for civic despair. 

The political calculus: Who WILL be the Supreme Court nominee?

Third in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

In my last post, I suggested that purely from the standpoint of conventional political strategy, the President should nominate Sixth Circuit Judge Joan Larsen to fill Justice Ruth Bader Ginsburg’s seat on the U.S. Supreme Court. Judge Larsen is reportedly on the short list, so it’s certainly possible.

But we also know that the President’s political instincts rarely align with convention. And if he wants a public fight instead of a better chance of an electoral win, he has other options.

I think he will go with the current consensus front-runner, Amy Coney Barrett. And he’ll do it not because of her qualifications — which are excellent — but because her nomination is likely to create the most short-term political chaos.

Continue reading “The political calculus: Who WILL be the Supreme Court nominee?”

Mazie Hirono is wrong, and she’s playing right into Donald Trump’s hands

My latest post at the New England Faculty Blog explains why the efforts of Senate Democrats to grill judicial nominees on their religious beliefs is both wrong as a matter of course, and a strategic blunder that the President is ready to exploit.