Barrett, Graham, Feinstein, and de Tocqueville

I watched a little of this past week’s Supreme Court confirmation hearings and can’t say I enjoyed — or was enlightened — by it very much. Alexis de Tocqueville observed 185 year ago that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.” While members of the Senate Judiciary Committee and a certain Supreme Court nominee might publicly contend otherwise, there’s hardly a question about the fitness of a judicial nominee that isn’t actually a political question. That is what judicial confirmation hearings are all about: the judgment of the person nominated to become a Justice. 

de Toqueville wrote that “an American judge armed with the right to declare laws unconstitutional is constantly intervening in political affairs.” Senator McConnell, were he more effusive, likely would agree that “the more one reflects on what happens in the United States, the more one feels convinced that the legal body forms the most powerful … counterbalance to democracy in that country.” (Except, perhaps, the U.S. Senate.)

I was struck by the empty formalism of the proceedings; by the faux appearance of normalcy. And yet— the hearings were rushed, with minimal time for investigating the nominee; the disclosure documents were incomplete; maskless Senators who had contracted COVID participated in the hearing room bearing an unreliable doctor’s note; the committee chair pledged support to hominee prior to knowing her identity; and formerly-valued norms like the filibuster are being held in abeyance.

The Senate Judiciary Committee did not follow its own rules, steamrolling past its own requirement that two Democrats be present for business proceedings to proceed. All this is why these proceedings should not happen as an election is ongoing, especially in light of Chairman Graham’s comment “I just don’t think you can separate this [confirmation hearing] from the election that we are in.” Graham, of course, used the proceedings as a platform to fund raise on federal property in apparent violation of federal law. 

The center(-right) did not hold, with RM Feinstein taking the lead in undercutting the Democratic position, culminating in her parting observation that “this has been one of the best set of hearings that I’ve participated in,” after which she hugged Chairman Lindsey Graham. With. Her. Mask. Off. In September, POLITICO’s John Breshnahan gently pointed to her cognitive decline, inability to manage on her own, and increasing number of political gaffes in an article entitled “Democrats worry Feinstein can’t handle Supreme Court battle.” The New York Times followed on with a similarly-themed article that had a bunch of strong on-the-record quotes.

In the last few days, Demand Justice, MoveOn, Demand Progress, NARAL, and likely others have called for her to no longer serve as the lead Dem on that committee. I imagine this will be dealt with tactfully by Senate Democrats, but I expect it will be dealt with. (Alas, Senate Democratic caucus rules are not publicly available, unlike their Republican and House counterparts, so it’s hard to know how that will work.) 

Senate Democrats, should they get a majority in the next Congress, would be foolish to allow their majority to be restrained in light of all that has occurred, as it is clear that Senate Republicans will abide by no real constraints. (That does not mean, in our opinion, that Democrats should stop fighting on this nomination; in fact, we believe exactly the opposite.) The Senate is now a majoritarian institution — as made clear by its operations. The question is only when and how it will bring its rules into conformity.