One: Lindsey Graham asked her if there existed a constitutional right to polygamy. She couldn’t say. Two: Pat Leahy asked if a president could self-pardon. Couldn’t touch that one. Three: Amy Klobuchar asked if she thought mail-in ballots were legitimately democratic. That’s a policy position, I can’t express a view.
Four: Richard Blumenthal asked if Obergefell was properly decided and asked her to consider its being overturned from the point of view of a gay or lesbian couple. It would be quite wrong to discuss that, and not only that, Senator, you seem to be implying that I’m itching to overturn it, which I assure you is not the case.
Five: Cory Booker wondered if a president should commit to the peaceful transfer of power. Can’t answer that one, Senator. Six, and most stunningly of all: Dianne Feinstein asked her if anything in the Constitution made it OK for a president to unilaterally delay an election. Well, Senator, again, to the extent that that could come before the court, I can’t say—I’d have to look at the briefs and consider the evidence.
On the plus side, Kamala Harris did get her to agree that smoking causes cancer.
OK, look. Liberal Supreme Court nominees do this too. In fact, these non-answer answers were kind of pioneered by the sainted RBG, so Barrett is not unique here. But somehow her non-answers seem more extreme. I mean, if she can’t even say that fuck no a president can’t unilaterally delay an election, or some version of “well, Senator, if that came before the court of course I’d have to consider the evidence and the briefs, but I would be extremely skeptical, given our proud history as a country that has existed for 241 years where that has never happened, that the Constitution contained such a right”—I’m sorry, that’s really disturbing.
We’ve reached the point of parody when a Supreme Court nominee can’t even say that. And let’s cut to the chase. We know why she didn’t say it. It’s partly because of the whole non-answer-answer thing. But it’s also partly because she knows deep down that she might indeed be called upon to decide that yes, Donald Trump can unilaterally delay an election, or do something equally egregious and disruptive of democratic tradition, if that’s what it will take to keep the Godless liberal scum from taking over the country.
If I were a senator, here’s what I would have asked when my turn came, just to try to expose the whole ridiculousness of this charade. I’d have said, Judge Barrett: Is there anything in the Constitution that prevents the president from building a string of concentration camps and stuffing them to the gills with his perceived political opponents?
She might have said well, Senator, that’s a rather far-fetched scenario that has no precedent in our history, and I can’t imagine giving constitutional imprimatur to such a move.
But everything I saw over these last two days suggests to me that if she had been asked this, she would have gone with the standard evasion. And that is shocking and should make us stop and think a couple chilling thoughts.
The first chilling thing it makes me think is: Well, maybe there isn’t anything in the Constitution that prevents a president from building concentration camps. Maybe it’s just another of those questions that hasn’t been tested because no one’s done it yet, and it has just depended on the restraint and decency of presidents throughout our history.
The second chilling thing it makes me think is this. What if Trump did it? In that case, would Congress rise up to say no, and pass a law forbidding concentration camps?
And even if it did, the Trump administration would sue, and it would all end up at the Supreme Court; and then what? Would this court rule against Trump on the obviously moral grounds that concentration camps don’t belong in democratic societies? Or would it scour the Constitution, wearing its originalist spectacles, and find in Article II (on the executive branch) no prohibition against their construction?
I tremble at putting percentages on these two outcomes with this court, especially after Barrett gets on it. Remember, she’s lying her brains out, most likely, on all this stuff about having an open mind. Leonard Leo and the Federalist Society vetted her to make sure that she doesn’t have an open mind. They vetted her to ensure that she’ll be a judge who’ll serve the Republican Party and the conservative movement. That is why she’s up there. You are naive or delusional to think anything else.
Oh, if she gets on the court, she might surprise us once in a great while. But she is there to move the court hard to the right, and she was recommended by people who have been behind closed doors with her and are confident that she’ll play the role they expect of her.
And that’s what makes these non-answers of hers creepier than usual. I know—I’m a liberal, and I wasn’t this put out by Elana Kagan’s or Sonia Sotomayor’s non-answers, because I knew deep down that in the main they’ll defend positions I like. I get that.
But I’m talking here about something different. I know Barrett is going to undo abortion rights and health care and same-sex marriage. I hate those outcomes, but I understand. Them’s the rules.
But her non-answers, the ones to Feinstein and Booker in particular, suggest something even worse. They suggest that she might not even be willing to defend the principle that this Constitution, whatever the specific words therein, has for more than two centuries been fundamentally devoted to defending the idea of a democratic republic; and if the founders didn’t explicitly mention that the president can’t unilaterally delay an election or must respect the peaceful transfer of power, then, well, maybe the president can do those things, and we’ll just be a democratic republic in which a president can delay an election if that's what he wants to do.
If she couldn’t even say she was at least disturbed by those scenarios, then she is a dangerous person.