“Fool me once . . .” You know how the saying ends. During the most contentious confirmations of the past three decades — those of Justice Clarence Thomas and Justice Brett M. Kavanaugh — Democrats successfully demanded the reopening of Senate Judiciary Committee hearings based on late-arriving allegations of misconduct.
Both episodes were fiascoes, as my colleague Ruth Marcus detailed last year in “Supreme Ambition,” the subtitle of which — “Brett Kavanaugh and the Conservative Takeover” — telegraphs how the story ends.
But, wait, the story isn’t over. Now comes the nomination of Judge Amy Coney Barrett, and if past is prologue, a similarly belated Democratic scramble to derail a Republican Supreme Court nominee can be expected.
At my urging during a radio interview on Tuesday, Sen. John Cornyn (R-Tex.) said he would encourage Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) to begin the confirmation hearings, starting Oct. 12, with a declaration that under no circumstances will they be reopened after they close at the end of that week.
I expect Democrats to launch torpedoes at ACB, as Barrett is already being called, from two directions. After joining University of Notre Dame Law School faculty in 2002 and eventually gaining tenure, Barrett would have had a vote on every other candidate for tenure. Expect Senate Democrats to find a disappointed tenure-seeker who blames Barrett and is willing to testify against her.
Similarly, Barrett served for many years on the law school’s Appointments Committee, and for a couple of years as its chair. No doubt, Democrats are scouring academia for anyone who failed to land a job teaching at ND Law and bears a grudge against Barrett.
I’m familiar with the workings of appointments and tenure committees from a quarter-century on the faculty of Chapman University’s Fowler School of Law (I am on leave this academic year). Committee members try to be diligent and fair with every applicant for hiring or promotion. But these undertakings are not for the faint of heart. You disappoint vastly more people than you are able to please.
As a professor, Barrett will also almost certainly have had student evaluations filed every semester. Even for the best teachers, these evaluations, as with all large-enough samples, fall into a bell curve. Always. There is 10 percent of every class that most adores your style of teaching and a 10 percent that finds it least appealing or even loathes it. Expect to hear from some of Barrett’s former students over the past 18 years who fell in the latter category. The former student with the deepest grievance has probably already contacted Senate Democrats.
Whether the Judiciary Committee hears that student — or the disappointed tenure-seeker, or the frustrated job applicant — is not inevitable. Graham needs to be fair, but he need not be a sucker for the sort of tactics that smeared Kavanaugh and Thomas with late-arriving allegations.
An open and fair process — with a beginning, an end and a vote — is what’s needed. The same for the debate that will follow on the Senate floor. That final vote should occur before the Nov. 3 election. (As a practical matter, GOP Senate candidates risk getting wiped out if there is no vote before the election. Their base will stay home in disgust.)
I hope this possibly pessimistic preview of how Senate Democrats on the Judiciary Committee will behave turns out to be wrong. I hope senators and witnesses stay on the law and within the schedule. I hope Barrett adheres to the famed “Ginsburg rule,” established during Ruth Bader Ginsburg’s 1993 confirmation hearings.
As former U.S. attorney general Edwin Meese wrote in a 2005 essay about the “Ginsburg rule,” the ground rules devised by the Judiciary Committee’s then-chairman, Joe Biden (D-Del.), “stipulated that she had no obligation to answer questions about her personal views or on issues that might come before the Court.” That approach has since served other nominees, and the court, and the country, and it should serve again. Graham ought to see to it.
“I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews,” Ginsburg coolly responded to her questioners. As RBG’s successor, ACB would be wise to study her example and emulate it.
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