Admittedly, some questioners have spent their time waxing indignant about the absurdity of the whole production. They noted that the string of coronavirus infections stemming from last month’s Rose Garden nomination ceremony renders it irresponsible to convene in person — regardless of whether Barrett wears a mask to simulate safety. They groused that a group of politicians who had refused to give Merrick Garland a hearing for eight months in 2016 now scoff at the concept of waiting for the country to vote this time around.
“This hearing is a sham,” Sen. Amy Klobuchar (D-Minn.) said on Monday. “But I am here to do my job. To tell the truth.”
Showing up at all, however, is itself a bit false: The act lends credence to the notion that this is a legitimate constitutional exercise, rather than a charade. More perplexing have been the lines of inquiry that suggested those doing the asking expected real answers: Sen. Dianne Feinstein (D-Calif.) started Tuesday off by asking and asking again what Barrett believed about Roe v. Wade. The hours dragged on, and other Democrats repeated the move, homing in on Barrett’s views on the Affordable Care Act, or her possible recusal from any case involving the outcome of the election.
Of course, we already know what Barrett believes about Roe v. Wade because she signed an advertisement demanding “an end to the barbaric legacy” of the case; because she gave a speech envisioning restrictions on clinics; because she has displayed an outlandish willingness in her academic work to discard precedent. We also know we aren’t going to hear any of that in this setting. Instead, we’ve heard a lot about maintaining an “open mind” and about refusing to “short-circuit that entire process” of recusal.
This last line was delivered un-ironically — even though short-circuiting regular processes has been a vital piece of the Republicans’ court-packing scheme.
Why does Barrett bother to avoid saying what she really thinks? All the Republicans will vote yes; all the Democrats will vote no. The reason: to uphold the myth of judicial independence (and eliminate even any hint that the White House might have extracted promises from its chosen champion). Each is part of the ritual performance. A slim majority of senators in the audience was ready to deliver a standing ovation before the curtain rose, and the minority was itching to hurl tomatoes.
Supreme Court hearings have long been at least partly for show; Robert Bork got burned in 1987 for being honest, so, after that, honesty ended and evasion began. Maybe Ruth Bader Ginsburg would have won fewer than 96 yesses had she spoken more freely about her activist past. And even before Christine Blasey Ford accused a teenage Brett M. Kavanaugh of sexual assault, we wondered — maybe naively — where Sen. Susan Collins (R-Maine) would come out on his fitness to serve. When Ford did testify, many couldn’t imagine how Sen. Jeff Flake (R-Ariz.) could possibly listen and not believe. Maybe it was then that we realized everything was already broken.
So why do we watch? Perhaps we’re simply masochists, or just morbidly fascinated; perhaps we’re creatures of habit who were taught that Supreme Court hearings were must-watch and now feel we still must watch them. Or perhaps we think there ought to be a point, even if there isn’t — because we believe these appointments shouldn’t just be rubber-stamped on a partisan basis, or at least that we should understand who these nine fallible people responsible for the final say on the law of the land actually are. Or because we feel that throwing our hands up on our democracy today means giving up on it tomorrow.
You might call it silly, and you might call it stupid. Or you might call it an act of faith.