Judge Barrett: "What sane person would go through [the Confirmation Process] if there was not a benefit on the other side?"

"Why should I say someone else should do the difficulty if the difficulty is the only reason to say no."

|The Volokh Conspiracy |

Day two of Judge Barrett's confirmation hearing is winding to a close. Unsurprisingly, there were few surprises. Most Senators lack the ability to deviate from scripted questions, and Judge Barrett is smart enough to avoid disqualifying answers. This hearing is like the easiest faculty workshop Professor Barrett would ever have to sit through.

But on a few occasions, Senators asked more personal questions, where Judge Barrett was allowed to shine. One such exchange occurred at the tail-end of Chairman Graham's time. He asked "How does it feel to be nominated for the Supreme Court of the United States?"

Judge Barrett responded (my best attempt at a transcript):

Well, Senator, I have tried to be on a media blackout for the sake of my mental health, but you cannot keep yourself walled off from everything. I am aware of the caricatures floating around. I think what I would like to say in response to that question is that I have made distinct choices. I decided to pursue a career and have a large family. I have a multiracial family, our faith is important to us. All of those things are true, but they are my choices. In my personal interactions with people, I have a life brimming with people who have made different choices and I have never tried to impose my choices on them. The same is true professionally. I apply the law and Senator, I think I should say why I'm sitting in the seat. Why I have agreed to be here. I do not think it is any secret to any of you or the American people this is a really difficult, some might say excruciating, process. Jesse and I had a very brief amount of time to make a decision with momentous consequences for our family. We knew that our lives would be combed over for any negative detail. We knew our faith would be caricatured. Our family would be attacked. And so we had to decide whether those difficulties would be worth it. Because what sane person would go through that if there was not a benefit on the other side? The benefit is that I am committed to the rule of law and the role of the Supreme Court and dispensing equal justice for all. And I am not the only person who could do this job, but I was asked. And it would be difficult for anyone. So why should I say someone else should do the difficulty if the difficulty is the only reason to say no. I should serve my country. My family is all in on that because they share my belief in the rule of law.

Judge Barrett posed the critical question: Why would any "sane person" subject herself to this confirmation crucible? For many Supreme Court nominees, I think the answer is ambition. That judge truly believes that he or she is the best person for the job. And that belief fermented through a lifetime of social-climbing. The jurist takes all the right steps and forms the right relationships to be in the right place when lightning strikes, and a vacancy arises. I have long thought that any person willing to subject himself or herself to this process lacks the humility to be a Supreme Court justice. Anyone not willing to walk away from a job interview should not have that job. On the Roberts Court today, the Justices who wanted the job the most are more likely to bend and sway in response to social pressures. The Justices who wanted it the least are most likely to stand resolute.

In my mind, seeking a Supreme Court seat should be disqualifying for that position. Perhaps the ideal Supreme Court nominee would be Shermanesque: " I will not accept if nominated, and will not serve if confirmed."Wanting something for so long create a sense of entitlement. And when you feel entitled, your judgment is clouded over whether you are actually the best person for the job. Your judgment is also clouded on whether the painful process is worth it for your family, or indeed for your country. In other words, why let the mobs drag your family through the mud? For what end? So you can reach for the ultimate brass ring?

Now, how does Judge Barrett answer the question? She said:

Because what sane person would go through that if there was not a benefit on the other side? The benefit is that I am committed to the rule of law and the role of the Supreme Court and dispensing equal justice for all. And I am not the only person who could do this job, but I was asked. And it would be difficult for anyone. So why should I say someone else should do the difficulty if the difficulty is the only reason to say no. I should serve my country. My family is all in on that because they share my belief in the rule of law.

First, she admits she is not the only person who could do this job. It is easy enough to gloss over this modesty, but it is profound. Some members of the Supreme Court truly believe they are the best person for the job. I don't think Judge Barrett does. And she is wiling to say so publicly.

Second, she recognizes "she was asked" to do it. Some members of the Supreme Court scratched and clawed for years to put themselves in a position to be nominated. My impression–and I may be wrong–is that Judge Barrett didn't have to audition. Rather, those around her recognized and saw her potential, and boosted her. In other words, it was Judge Barrett's network that lifted her up. She wasn't dragging her network behind her. Every person I have talked to about Judge Barrett has conveyed the same message. She radiates this goodness that is so absent in our polity. I have only met her once or twice, and was immediately impressed with her persona.

Third, she recognizes this process would be "difficult for anyone." Even during this tough time, she is still thinking of others. She adds, "So why should I say someone else should do the difficulty if the difficulty is the only reason to say no." She said that line very quickly, and I had to listen to a few times to make sure I transcribed it correctly. Usually Judge Barrett spoke very deliberately. But she rushed this line. From my experience, when I am talking about something I have prepared, I can control my pace. But when I am speaking off the cuff, I need to focus on my words. In the process, I lose focus on my pace, and I start speaking more quickly. This line came from the heart. Think about what she is saying. If Judge Barrett declined the nomination because she did not want to suffer through the process, then someone else would have the suffer the slings and arrows of the confirmation process. And if the only reason Judge Barrett said no was to avoid that pain, she would be foisting that pain onto someone else. In short, declining the job would make her complicit in someone else's suffering. She is willing to endure the process to help her country, and not help herself. Please email me if you think I missed her point, but the reasoning from a Notre Dame Law Professor seems very poignant.

Fourth, Barrett says she is not willing to say no because of the painful process. And what is the benefit? Service to her country. And critically, her family is committed to that process, because they share her belief. Even at the most difficult time, everything comes back to her family, and not herself. It is remarkable how someone who is so publicly selfless can still aspire to the highest judicial official in the land.

I am truly impressed by her character. I hope she can show more of her virtue throughout the remainder of this hearing.

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  1. Some folks find Comey Barrett dishonest because she’s chose not to reject pre-election confirmation hearings in 2020, when in 2016 she gave her full-throated support for the GOP Senate’s refusal to hold hearings on Garland … because it was an eleciton year.

    1. How dare you make such an attack on her multi-racial family and her Catholic faith!!!

      1. I wonder why Merrick Garland didn’t refuse the nomination because it was an election year?

        1. Hmm, probably because up ’til that time no one had ever argued that it was inappropriate to consider a nomination in an election year. Certainly Merrick Garland hadn’t done so about any previous nomination.

          (Having said that, the argument that ACB gave “full throated” support to the Republican tactics at the time is wrong unless there’s some evidence I haven’t seen.)

        2. Shhhhh!

    2. Interesting, I’m lazy so do you have a link?

      1. Many people are saying this!

      2. Sure, here ya go!

    3. “when in 2016 she gave her full-throated support for the GOP Senate’s refusal to hold hearings on Garland”

      Is that true? I think not, but if I’m wrong, please provide the evidence. What I know she did say is:

      “Washington — Judge Amy Coney Barrett, one of the leading contenders to fill the Supreme Court seat left vacant by the death of Justice Ruth Bader Ginsburg, said in 2016 that she did not think precedent “establishes a rule for either side in the debate” over replacing Supreme Court justices during an election year.

      “It shouldn’t be a surprise that the Senate is willing to push a president’s nominee through in an election year when they share the same political affiliation,” Barrett, a professor at Notre Dame Law School at the time, told CBSN in February 2016.”

      “I gather that there have been six in the 20th century, and 11 if you go back to the Civil War, of confirmations that happened during presidential election years,” Barrett said. “But I think the question is, what does this precedent establish? And I don’t think it establishes a rule for either side in the debate.”

      1. Right, Publius. She doesn’t think it establishes a legal precedent for either side.

        To her discredit, she ignores the gigantic problem of the normative precedent, which in this case threatens political consequences which everyone agrees threaten Court legitimacy. I get that she prefers meticulous focus on the law, especially when that focus is useful to steer conversation away from her own policy preferences, which she understands would dismay many Americans if uttered aloud in this forum.

        But wouldn’t it be better if a prospective Supreme Court Justice was willing to engage at least a bit with such an imposing normative controversy—especially when it threatens grave damage to the institution she wants to join?

        To avoid useless annoyance, please do not respond if all you can think to do is suggest the entire normative threat, along with the court packing controversy it engendered, are all entirely the fault of Democrats.

        1. She’s accountable only for the legality of the process. The ethos of it is a concern for politician and voters, not for the candidate.

          1. Pava, here again the question you ignored:

            But wouldn’t it be better if a prospective Supreme Court Justice was willing to engage at least a bit with such an imposing normative controversy—especially when it threatens grave damage to the institution she wants to join?

            1. No it wouldn’t be better. I prefer Supreme Court Justices to be legalative not normative. Any sign of normativity in a nominee is a red flag. A normative nominee turns into a normative judge, and a normative judge is a judge that has gone off the rails into the thickets of her own normativities.

              Let’s kill all the lawyers, but as that’s a big job, let’s start with the normative judges.

              1. “legalative?” Is that “legalistic,” “legislative,” or your own portmanteau?
                Spill chuck am not purr fact.

                1. It is my own construction.

                  Legislative would plainly be wrong as a matter of semantics. Legalistic would be right, but would not rhyme with normative. When one is quoting Shakespeare one must pay attention to cadence.

                  You plainly lack the poetic ear, or else you would have spotted that the whole thing is a riff on “normative.”

        2. Lathrop : She doesn’t think it establishes a legal precedent for either side. To her discredit, she ignores the gigantic problem of the normative precedent

          This is of course nonsense. She is not talking about legal precedents, since nobody imagines that the Senate is legally bound by any other law than that the majority wins.

          She is talking about what the Senate normally does, ie those “norms” we hear so much about :

          “I gather that there have been six in the 20th century, and 11 if you go back to the Civil War, of confirmations that happened during presidential election years,” Barrett said. “But I think the question is, what does this precedent establish? And I don’t think it establishes a rule for either side in the debate.”

          So she’s saying that there’s no apparent precedent from past Senate behavior that, so far as she can see (in 2016), establishes a norm for how the Senate should act.

    4. “when in 2016 she gave her full-throated support for the GOP Senate’s refusal to hold hearings on Garland …”

      is your statement factual?
      Do you have any basis to make that statement?
      Do you have a citation?

      Or did you just make that up?

  2. Straying off topic just a bit, my immediate problem with Barrett is Fulton v. Philadelphia which is set for oral argument on Nov. 4.

    Catholic Charities, while doing the work of the state in foster care and while being compensated for that work by taxpayers and in defiance of local law, asserts a right to discriminate.

    Does anyone really believe that Barrett would vote in favor of the City defending its nondiscrimination ordinance?

    1. “Does anyone really believe that Barrett would vote in favor of the City defending its nondiscrimination ordinance?”

      Are you saying that’s the correct ruling in this case? They could save a lot of time and money by just giving you a call.

      I think she’ll vote according to what, in her analysis, the law requires.

      1. I think she’ll vote according to what, in her analysis, the law requires.

        And if she’s anything like Scalia, that will always be what she wanted to do anyway.

        1. Really? What about Texas v Johnson? You think Scalia liked flag burners? Or maybe, just maybe, he thinks it’s those laws violate the First Amendment.

          1. OK. Virtually always.

    2. “Does anyone really believe that Barrett would vote in favor of the City defending its nondiscrimination ordinance?”

      Does anyone really believe that Sotomajor, Kagan and Breyer would vote in favor of Catholic Charities?

      1. Kagan and Breyer voted in favor of Masterpiece Cakeshop.

        1. Well, bakers can’t be choosers.

          1. That’s just frosting on the … you know ….

        2. Josh R : Kagan and Breyer voted in favor of Masterpiece Cakeshop

          Sure. it was one of those classic Roberts Court punts. They joined the majority so as to have the case decided on the narrow point that the relevant apparatchiks had been foolish enough to commit their bias to paper; and then underlined that the point in their concurrence.

          It was 7-2, so they were going to lose anyway. Better to trade for a narrow loss than charge the guns with Ginsburg and Sotomayor, and risk a substantive precedent.

          The smart libs are happy to do this trade when they’re losing anyway, and Roberts likes it as it offers the illusion of apoliticality.
          But they never defect when their vote is decisive.

          So Kagan and Breyer may well vote in favor of Catholic Charities….. if they can get a deal for their votes.

      2. Sotomayer was the one that wrote the dissent in Shuette v Mamn believing it was unconstitutional for a state to add an amendment to the state constitution requiring compliance with the 14th amendment to the US constitution

        1. Reading opinions of Justices you don’t like in bad faith is fun and all, but makes you look a bit petty.

          1. She said it was unconstitutional for a state to pass an amendment saying, that the state “…shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

            Sorry dude, that’s just batshit crazy.

            1. Did you bother to *read* the dissent?

              It’s clear this is aimed at affirmative action, and it is analyzed accordingly.

              You can disagree, but calling it crazy is mistaking partisan rhetoric for an actual argument.

              You used to engage.

              1. Yes, it’s clear that this was aimed at affirmative action, specifically the sort of affirmative action that relies on racial discrimination. Why is this a problem?

                To quote Scalia, who put the issue in a nutshell:

                “It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?”

                Yes, Sotomayor literally would have ruled it unconstitutional for a state to have an amendment in its own constitution requiring it to comply with the 14th amendment.

                1. Except that’s not what the 14th says, nor how it’s interpreted – it’s just how you’ve decided it must be interpreted.

    3. Or, the state, arrogating to itself the work that should be done by private entities….
      Do we have any libertarians visiting the comments anymore?

      The funding question is valid, though.

  3. Some great strawmans there about the attacks she has suffered for her faith and for her multi-racial family … problem is that no Democratic Senators have made any such attacks, particularly as to her multi-racial family. We all know which side would have the problem with that. (I can already here the answer – “the Democrats were pro-segregation!!!!” Yes, those “Democrats” are now Republicans.)

    1. Yup.

      You’d think asking her about Griswold was a physical assault on the Pope.

      1. That was an insane take from Hawley: you can’t ask a potential Supreme Court Justice about a landmark case in constitutional law because the religion she practices has strong opinions on the subject matter. If that’s the standard, you can’t ask about a lot of things.

      2. Also, a lot of these clowns wouldn’t mind a physical assault on the current Pope anyway.

        1. Got that right. We keep telling ourselves, “The Borgia pope was worse. The Borgia pope was worse.” but it rings hollow. The latest outrage: He’s reached an agreement to let the Chinese Communist government chose Catholic bishops in China. Bishops who’d play a role in picking the next Pope!

          He’s basically in the process of handing control of the Roman Catholic church over to a communist dictator.

          1. Oh good. Brett is endorsing violence against a religious leader. Glad to see that your morals are in top notch form as always.

            1. No, I’m not endorsing it. I’m just saying that it wouldn’t particularly offend me. It would still obviously be wrong and illegal, I just wouldn’t personally be bothered by it.

              1. And, yes, I’m aware that ideally I should care just as much about an assault on a Pope who’s busy trying to destroy the Church, as I would about my neighbor being assaulted. But he’s making it really hard to care.

                1. Brett, who has been a Catholic for about ten minutes, suddenly understands the church’s teachings better than the Pope.

                  1. That’s a new one to add to the list!

                    Knows history better than historians,
                    Knows law better than lawyers,
                    Knows the Jews better than Jews,
                    And knows Catholicism better than the Pope.

                  2. I know, right? It’s not like the CCP is constantly hostile to religious practices over many decades. And besides, what has the Falun Gong done for the Pope, anyway?

    2. Look who’s talking about strawmans! She never said it was Democratic Senators making such attacks, did she?

      BTW, “Yes, those “Democrats” are now Republicans” is B.S. and has been thoroughly debunked.

      1. “BTW, “Yes, those “Democrats” are now Republicans” is B.S. and has been thoroughly debunked.”

        It’s a simplistic formulation of the changing coalitions and positions that have occurred between the parties in the last fifty years, but the general idea that there has been a shift in how the parties treat racial and civil rights issues is something that historians and political scientists consider pretty well-established.

        Unless you think Dinesh D’Souza counts as a debunker, in which case no one can help you.

        1. “a shift in how the parties treat racial and civil rights issues”

          Coincidentally, there’s also been a shift in what issues are considered civil-rights issues.

        2. That’s more false narrative, as if to say that it’s “settled political science” that the parties flipped.

          1. Flipped is simplistic. But pretending there weren’t shifts in ideology and racial coalitions between the parties is ahistorical nonsense bordering on willful blindness.

            Which political historians and political scientists do you think agree with you on this issue?

            How do you address Jackie Robinson’s feeling of loneliness at the 1964 RNC?

            What is your explanation for why so many black civil rights leaders joined the Democratic party in the wake of the Civil Rights movement? (John Lewis, Jesse Jackson, Julian Bond, Fred Grey, etc.)

            What is your explanation for the change in the South’s voting patterns since the 1960s? How do you explain Strom Thurmond, Trent Lott, Jesse Helms? How do you explain the state-level political shift to Republican majorities in the South. Why are so many of the Southern Democrats today black?

            What is your explanation for white and black voting patterns today?

            Why are current Republican judicial nominees the most hostile to a strong interpretation of the Voting Rights Act, a signature legislative accomplishment of the Civil Rights Movement?

            Why are so many Republican politicians and conservative activists against or ambivalent on removing Confederate monuments?

            How do you explain RNC Chair Lee Atwater’s views on the Southern Strategy?

            1. Ford had voted for civil rights legislation whereas Carter had a more ambiguous civil rights record. So Ford lost southern states that Nixon had won upwards 75%. Bush lost the 1970 Texas senate race because Lloyd Bentsen primaried a civil rights hero attacking him on integration and Vietnam.

              1. Texas is interesting because the liberal on civil rights was in fact the Democrat Ralph Yarborough (who Bentsen primaried) and the conservative was in fact the Republican, John Tower, the first one from the state since reconstruction.

                The point being, that “party flipping” is overly simplistic but the shifting of ideology and coalitions between the parties in the last 50 years is hard to refute.

                1. Pat Buchanan used to be on MSNBC and Chris Mathews asked him about the “southern strategy” and he answered “of course we wanted those voters!?!” Both parties wanted to win senate seats and the presidency so implicit in liberals saying there was a “southern strategy” is that Democrats wanted to win those votes and simply couldn’t craft an effective strategy to win them…except they did and Lloyd Bentsen is an example of how they kept HW Bush from winning a senate seat in 1970. And Democrats actually had a majority of seats in the Texas congressional delegation up until 2004…long after all of the statewide offices had gone Republican.

            2. “What is your explanation for why so many black civil rights leaders joined the Democratic party in the wake of the Civil Rights movement? (John Lewis, Jesse Jackson, Julian Bond, Fred Grey, etc.)”

              That’s an easy one: The Republican party only offered equal treatment under the law, while the Democratic party, long used to being the party of racial spoils, offered them racial preferences.

              The GOP got outbid, a large part of the black civil rights movement abandoned the very principles underlying their movement in favor of what looked like a quick win.

        3. historians and political scientists consider pretty well-established.

          LOL

          1. Care to elaborate?

      2. “Strawmans” is sexist! We need to use “strawhupersons.”

        1. Strawhuperspawn, please.

      3. Strawpeople, please! Ain’t you woke?

    3. There have been attacks on her adopting black kids as white oppression or some such nonsense. Are you saying those were Republicans?

      1. No, just butthead professors.

    4. “Some great strawmans there about the attacks she has suffered for her faith and for her multi-racial family … problem is that no Democratic Senators have made any such attacks…”

      No. They have their media dogs to do that.

      https://www.washingtonpost.com/nation/2020/10/12/supreme-court-nominee-amy-coney-barrett-has-seven-kids-dont-you-dare-forget-it/

    1. I bet the rape babies women are about to start plopping out will really make America great again…what an adorable baby, he has your rapist’s eyes!!!

  4. “I am truly impressed by her character. I hope she can show more of her virtue throughout the remainder of this hearing.”

    I seem to recall you being up in arms about the Chief’s “pathetic virtue signaling” for saying that (checks notes) Japanese internment was bad. But you’re okay with Barrett signaling her virtue here?

    According to Josh, it is good to signal your virtue by making yourself look like a martyr in a confirmation hearing so you can become one of the most powerful and honored people in the world but pathetic to acknowledge a historical wrong in a judicial opinion.

    This says a lot about Josh’s character. Of course he thinks you should play up your “virtues” if it gets you what you want, but bad if it simply acknowledges a historical and moral truth. Being virtuous is apparently completely transactional to him.

    1. Wait – are you claiming a conservative is arguing in bad faith? No way.

  5. She applies the law… but would she apply it were it unjust?

    That’s the question I suspect no one is going to ask her.

    And even if someone does, I suspect she’ll find a way to not answer.

    And that’s why confirmation hearings are nonsense. The single biggest question, “will your rule justly” is verboten, and even if someone dared to ask, no one would punish a nominee for not answering.

    1. What you ask is whether she should disregard the law in service of her personal sense of justice. That’s precisely what proggy judges do that originalists dislike. Judges are to render justice under the law, not justice according to some personal set of beliefs.

      1. Judges are to render justice under the law […]

        That was the point. When the law itself is unjust, there can be no “justice under the law”.

        How a justice will act when they –in their own views– cannot achieve both is far more important then how they’ll act when –again, in their own views– the two are in concordance to each other.

        That said? You’re an idiot and fool if you think “originalists” don’t inject their personal set of beliefs into their decisions. All judges do it. They just choose different ways to justify it.

        1. Choosing originalism as the sole correct interpretive method is itself a personal choice based on personal beliefs anyway. There’s no actual “original public meaning must be used” clause in the Constitution. (And even if there was there probably wouldn’t be a “original public meaning that doesn’t use definitions that have high levels of generalization and abstraction” clause.)

          And choosing to adhere to an 18th century understanding of “cruelty” for instance, might say something about your personal beliefs and morals which isn’t all that flattering.

          1. And choosing to adhere to an 18th century understanding of “cruelty” for instance, might say something about your personal beliefs and morals which isn’t all that flattering.

            Which is exactly why the judiciary should never weigh in with an interpretation. The People, through their elected representatives will determine that which is cruel and unusual.

            1. As LTG noted, it’s not at all clear that’s required, or even intended by the Founders!

              The Constitution is a check against The People. You would render it dead letter so long as popular bloodthirst is a bit above the 18th Century.

              1. “You would render it dead letter so long as popular bloodthirst is a bit above the 18th Century.”

                What happens if popular bloodthirst falls below the 18th century?

                1. Then we’re in some deep trouble.

              2. The Constitution is a check against the momentary passions of the people, not their sustained desires.

                1. When Judith Shklar said we need to “put cruelty first” she didn’t mean it that way.

          2. “There’s no actual “original public meaning must be used” clause in the Constitution.”

            There’s no, “This Constitution is written in English” clause, either. So I guess you could invent a new language that uses the same words, but they just mean different things, and read the Constitution using that language instead of English. It doesn’t say you can’t.

            1. You know it’s funny that you say that, because in some sense that’s how originalism works. A person reads the constitution and has a conception of what is “cruel” or “equal protection” and believes the constitution protects her accordingly based on her understanding of those terms. Then Justice Originalist comes along and says “UM ACKSHUALLY this 18th century dictionary, this treatise by Matthew Hale, these Thomas dissents, and this Randy Barnett article from Obscure Originalist Quarterly day they mean something completely different.”

              1. The way originalism works, is that the meaning of the words in a document is fixed at the moment it’s written. That’s the way you read any old document, if you actually care what it means.

                Sure, after a century or two you’re not using the same language as people use in everyday speech. But at least you haven’t licensed Merriam-Webster to amend the Constitution.

                By the way, the cruel and unusual clause is actually directed at judicial abuses, not legislative. It was meant to curb the judicial tendency to get inventive when it came to setting punishments.

                1. the cruel and unusual clause is actually directed at judicial abuses, not legislative. It was meant to curb the judicial tendency to get inventive when it came to setting punishments.

                  So it doesn’t mean what it says, despite your previous comments.

                  1. No, it actually does mean what it says.

                    “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

                    And who’s doing all that? Judges.

                    1. Who sets the fines and sentences? And who uses the physical force to inflict them? It’s not the judges.

                    2. Funny. I don’t see the words “judges” or “courts” in that sentence.

                    3. Strictly, it’s the executive imposing the punishments, pursuant to the judge’s sentence.

                      I think the better argument that the clause does not apply to the legislative branch is that a punishment stipulated in law cannot be “unusual”, by definition. For it is the punishment established for every instance of the crime.

                      So if the law prescribes a punishment of 25 years in jail and castration, for child molesting, it’s literally impossible for that sentence when carried out, to be unusual. However cruel it may be.

                      It doesn’t matter if you’re the first person ever to be sentenced under that child molesting law – you’ve still got the usual punishment. As will be confirmed by the next thousand sentences passed under that law.

                      I think the original notion of cruel and unusual derived from the old common law days where judges had a free hand in sentencing, and the cruel and unusual thing was to limit their discretion. If a judge passed a cruel, but usual, sentence, he was not abusing his discretion. If he passed an unusual, but not cruel, sentence, even if he was abusing his discretion, the harm was small. Only when the two were combined was there a need to check him.

                2. “The way originalism works, is that the meaning of the words in a document is fixed at the moment it’s written. That’s the way you read any old document, if you actually care what it means.”

                  Well the Constitution isn’t any old document, its the basis for a government and its legitimacy depends on people today accepting it. There’s a reason that a lot of historians think originalism is nonsense, and that’s because they know that its simply a political project designed as historical inquiry completely divorced from the reality that history is actually messy. They understand that there was never even a common original understanding even amongst the drafters and ratifiers, so why would there be a single fixed one among the larger public?

                  “Sure, after a century or two you’re not using the same language as people use in everyday speech. But at least you haven’t licensed Merriam-Webster to amend the Constitution.”

                  No instead you have licensed 5 amateur (and not very good) historians and philologists to overturn decades of common understanding and precedent based on whatever Randy Barnett article they thought was interesting. At least ordinary people have access to Merriam Webster’s.

                  “By the way, the cruel and unusual clause is actually directed at judicial abuses, not legislative. It was meant to curb the judicial tendency to get inventive when it came to setting punishments.”

                  You’ve said this before, and it is absolutely ludicrous. 1. It’s no where supported by the text itself 2. If the Constitution empowers the executive and legislative branches to impose systematic rape and torture as a punishment for petty theft so long as a judge doesn’t make it up on the spot, the Eighth is a completely worthless amendment, so why even bother having it at all.

                  1. All human undertakings are imperfect, but when we quit striving for a consistent meaning for the constitution, we no longer have one. We just have some number of geezers and biddies up there issuing edicts. Why should we listen to them? Because the constitution says so? What constitution?

                  2. “There’s a reason that a lot of historians think originalism is nonsense, and that’s because they know that its simply a political project designed as historical inquiry completely divorced from the reality that history is actually messy.”

                    The real reason a lot of historians think originalism is nonsense.

                    1. Lol. Of all the things you are out of your depth on, your misunderstanding of the historical profession is by far the funniest. The reason historians think originalism is stupid is because they actually spend every day thinking about and studying the past unlike lawyers, judges, and for the purposes of this conversation, you.

                      You and originalist judges have not read the amount of primary and secondary sources as they have. You and they have not done deep archival research like they have. You and they have not pondered historical problems in as great detail as they have. You and they have not been subject to peer review by other experts. You are complete amateurs pretending your ignorance is as good as their expertise.

                    2. I read enough of the primary sources in the Heller case to know that Stevens was BSing.

                      Most historians disapprove of originalism because the field of academic history has been thoroughly politicized. They disapprove of originalism because they’re Democrats, and the original meaning of the Constitution isn’t what they WANT it to be.

                    3. “I read enough of the primary sources in the Heller case to know that Stevens was BSing.”

                      Stevens is not a historian.

                      “Most historians disapprove of originalism because the field of academic history has been thoroughly politicized. They disapprove of originalism because they’re Democrats, and the original meaning of the Constitution isn’t what they WANT it to be.”

                      Again it’s because they literally do historical study for their job and know that originalists aren’t doing that because its a political project disguised as historical inquiry. That’s why originalists like Barnett get all whiny when actual historians (who he knows deep down understand the past far better than he does) criticize him.

                      You and originalist judges do not know more about reconstruction than Eric Foner and Heather Cox Richardson. You do not know more about the Revolutionary era than Gordon Wood or Bernard Bailyn or Joseph Ellis. You do not know more about slavery than David Brion Davis. You do not know more about legal history than John Langbein, etc. ad nauseum (And in case Sam Gompers is listening, and you probably need to hear this too, you actually do not know more about the Holocaust and the ideology of Nazi Germany than Yehuda Bauer, Christopher Browning, or Saul Friedlander).

                  3. It’s no where supported by the text itself

                    It is supported by the word “unusual.”

                    A punishment prescribed by statute is by definition the usual punishment for that offense.

        2. “When the law itself is unjust” — as Democrats see the 1st and 2nd amendments. Are you proud of how the four lefty justices voted to eviscerate freedom of speech?

          For that matter, are you proud of how Chief Justice Taney made up entire sections of the Constitution to justify slavery?

          1. Remind me? Which justices voted for the plaintiff in Snyder v Phelps? And for the Defendant in United States v. Stevens? And in Elonis v United States? And which ones voted for the School District in Morse v Frederick? And what were the coalitions in Packingham v North Carolina?

        3. If the law itself if unjust, that’s the Legislature’s job to fix. When the Legislature fails to correct an unjust law, what gives an individual judge the right to unilaterally substitute his/her opinion about what counts as just or unjust?

    2. “will your rule justly”

      Such a softball.

      “Yes, of course” would be anyone’s response.

      Every judge ever thinks his or her ruling is just.

      1. Not really.

        Judges these days all try to hide behind “I’ll apply the law, of course”, and pretend that their personal judgement, character, and values are meaningless little ribbons that may be nice to look at, but won’t impact the way they perform their job.

        So ask them, directly… what about when the law is unjust?

        Either (A) they stick to their claim that they apply the law regardless. This can be fun, ’cause you can ask particulars. There’s all sorts of unjust laws that were never declared unconstitutional, and you can run them through them all. Or you can jump straight to slavery: “Prior to the Civil War, would you have applied the law and returned a runaway slave to their master?”

        Option (B) is where they admit that yes, when the law and justice come into conflict, they’ll opt for justice. Once they’ve admitted that they won’t always apply the law†, then they can’t hide behind “I’ll apply the law” for other answers.

        Fact is, almost all judges claim that they apply the law without bias. None of them actually do that. So getting them to actually talk about what their views of justice is probably the most useful thing you can do.

        Far more useful then the dog and pony show we’ve had for decades.
        ________
        †Which is actually true of all judges, but most won’t admit it.

        1. I don’t think hack senators can trick up these smart nominees so easily.

          Every recent supreme court nominee [from both parties] is twice as smart as most senators. Like Ginsburg, they learned from Bork to deflect.

          1. The real tragedy is that a prospective justice talking about their views of justice would be seen as a “mistake”.

            1. True. These hearings are another tragedy, basically being soundbites for future campaigns. I doubt a single Senator ever changed their up or down decision based on the nominee’s answers.

          2. Bob from Ohio : “….they learned from Bork to deflect”

            Bork’s problem was his long trail of statements & writings, often done in-your-face curmudgeon-style. By the time he reached the Judiciary Committee hot seat, deflection was beyond hopeless.

            What nominees post-Bork learned was to carefully police their paper trail. At some point they also learned to broadcast signals to their potential customer, even while being careful what they put on the record (which has to be a fine line to walk).

            From what I’ve read, Judge Barrett did this with reasonable skill. Kavanaugh didn’t have to. His sleazy record in right-wing politics probably assured him consideration regardless.

            1. No one was more careful of not leaving a paper trail than Pres. BHO. It was always commented by UC law school students that he had no written record post Harvard Law Review unlike Posner and Sunstein who probably wrote in their sleep.

            2. Bork’s problem is that he’d offended people in BOTH camps. He might have been confirmed if not for that “inkblot” remark, conservatives aren’t inclined to defend somebody who regards part of the Constitution as meaningless.

              1. IOW, Bork’s problem was his actual, expressly stated, views, not some malicious campaign of slander.

                I wonder what today’s allegedly zealous conservative defenders of the 1A think of Bork’s views on that subject.

                1. Yup. Bork wasn’t “Borked”, he was defeated on the merits.

              2. “[C]onservatives aren’t inclined to defend somebody who regards part of the Constitution as meaningless.”

                You defend an interpretation of the Eighth Amendment that renders it meaningless…

                1. No, I defend an interpretation of the 8th amendment that was directed against judges getting inventive and coming up with cruel punishments directed against defendants they didn’t like, instead of just going with the usual sentence for the offense. You think the judiciary is the only branch of government that doesn’t have abuses that need protection against by a Bill of Rights?

                  1. No, I think your view of the Eighth Amendment renders it a worthless and meaningless right if it is not violated when the legislative and executive branches decide that rape and torture is an appropriate punishment for shoplifting.

    3. The answer should be what I imagine her old boss Scalia would have said: Her job is to apply the law as it is. Where the law gives her some leeway, she can interpret it to lean toward greater justice, but not the the point of replacing the view of justice embodied in the law with her own. Thus, for example, if she were sitting on the court before the Civil War, she would be obligated to enforce the Fugitive Slave Law. If you don’t like the law, get it changed, don’t get a judge to pretend it doesn’t exist.

      This shouldn’t be a controversial viewpoint.

      1. Are judges and lawyers really so divorced from basic moral thought that they’ve forgotten that “I was just following orders” has never been a good defense?

        1. Are you so divorced from western civilization that you’ve forgotten the difference between “rule of law” and “rule of men”?

        2. Thank you for providing the justification for a judge to rule that the killing of an abortion provider is perfectly acceptable in his eyes as a moral necessity, and therefore a matter of correct “justice”.

        3. A judge is granted authority by the state or the Government to enforce the law. That is why Article III of the Constitution calls it “the judicial power of the United States.” Judging is an exercise of sovereign power, which in a Constitutional republic is granted by the People to the judiciary.

          But that power is conditioned on acting within the law. It is immoral to use the power granted by the People to act outside the conditions they set to use it, and the primary condition is to act within the law.

          A judge, unlike a soldier, always has the option to resign if he or she finds their job morally repugnant. That is a noble option. Perverting your authority to act against the law because you find the result in one case “unjust” is immoral.

          1. A judge, unlike a soldier, always has the option to resign if he or she finds their job morally repugnant.

            A judge has a slightly wider set of options than a soldier. A judge can recuse from particular battles. A soldier, not so much.

      2. Idk, i think the fugitive slave act is a poor example. It was clearly unconstitutional when written, and a SCOTUS nominee should have no problem saying they’d have struck it down as required by the constitution.

        1. Direct quote from the Constitution:

          “No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due.”

          The fugitive slave act was a lot of things, but “unconstitutional” wasn’t one of them.

          1. A fugitive slave law would be constitutional. Whether thefugitive saw law was constitutional would depend on a lot of things that never got litigated or decided.

            1. But since you said it was clearly unconstitutional, you can identify those things on which its constitutionality depends, and the knockout arguments that show that they come down on the unconstititional side.

              One will do.

              Take your time.

              You may write on both sides of the paper.

              1. You’re mistaking me for someone else. Squirelloid, not I, said the fugitive slave law — whichever version he’s referring to — was “clearly unconstitutional.” I haven’t expressed an opinion on the constitutionality of any version of the fugitive slave law, and have no interest in doing the work to form one on a moot issue.
                My comment was a response to Brett, who pointed to language in the Constitution that could reasonably be read as authorizing some form of fugitive slave law — though some respectable legal authorities of the type Brett usually likes thought it merely recognized the state’s obligation to render fugitive slaves and did not authorize federal legislation on the subject — as if that settled the question of the constitutionality of fugitive slaves laws full stop. It’s like someone saying that any particular death penalty law is constitutional because the Constitution refers to deprivations of, among other things, “life,” without due process of law.

                1. My apologies. Obviously too much port after lunch.

          2. “…held to service or labour…” avoids mentioning chattel slavery. One could claim that, the US having incorporated English common law which had, prior to 1776, restricted slavery [Somerset v Stewart (1772) 98 ER 499] , we could recognize a ninth amendment right of self-ownership, if not a 5th amendment liberty right. Of course, that would have been laughed out of court in the late 18th-early 19th century. But you can basically strap the text of the Constitution to the metaphorical rack and torture it until you get the result you want, even keeping to common textual meanings of the time in which the clause was written. Some of those clauses contained “terms of art” that are better defined by consulting Coke or Blackstone than Webster, whose Dictionary, in 1787, wouldn’t be published for another 4 decades.

    4. “She applies the law… but would she apply it were it unjust?
      That’s the question I suspect no one is going to ask her.”

      Why wouldn’t a jurist respond: Senator, if there is an unjust law, why do you, as a member of the legislative branch, not address it yourself?

      1. You cannot be that candid from that side of the table.

        1. Which is unfortunate, because it’s really the correct response.

  6. This post seems a bit fawning and cultish for what I would presume is an honest answer. It was, I supposed, meant as a softball question but maybe she made the mistake of saying what she was actually thinking rather than a scripted answer.

    Because a scripted answer would have started off with this is a great honor etc., etc., and when I was just six years old my Momma told me to always be fair and that’s what I’ve been trying to do all my life and to have a chance to carry out my Momma’s injunctions would be such an honor etc. etc.

    1. This post seems a bit fawning and cultish […]

      But then you remembered it was a Blackman article, and it all made sense.

      1. This is a little much, even for him.

        1. LawTalkingGuy : This is a little much, even for him.

          I don’t think that’s even possible. A few months ago he suddenly started praising Trump’s bravery in sticking with Kavanaugh’s nomination.

          This was absurd. As much as I’d like to have seen that nomination fail ( Kavanaugh under Starr was grossly unethical ), it was never in serious doubt. To rewrite history as Profiles in Courage starring Donald Trump was just plain silly.

          Still, only a single opinion, right? But then Blackman repeated the exact same spiel the next day, and again the day following that. I’m not sure he didn’t gush over Trump’s courage four days straight.

          So obviously he decided someone’s boot leather needed polishing. And obviously he decided polishing boot leather is productive enterprise for him. I doubt it was for the taste alone.

    2. This post seems a bit fawning and cultish

      A bit?

      Blackman is positively slobbering. It’s “selfless” to take a Supreme Court appointment?

      “profound modesty?”

      The only benefit is “serving her country?” Like being on the court is some sort of nasty, dangerous job that one only undertakes out of a sense of duty?

      Really? Blackman’s post is cringeworthy, even for him. He must be trying for Sycophant of the Year.

  7. “The Justices who wanted it the least are most likely to stand resolute.”

    Imagine the lack of self-awareness for Josh Blackman to write negatively of careerist social striving.

  8. One more quick point. If Josh is being honest in his praise here and not desperately trying to go on sabbatical to go clerk for her next term, he must be the most credulous interviewer on the planet. It’s like he was going to hire the person with the skills he most needed but then was just really impressed by the person who said their greatest weakness was working too hard and caring too much so he hired them instead.

    1. The answer could well be honest – it’s nice but not earth-shaking.

      Correct me if I’m wrong, but the ritual of a nominee appearing in person for hearings started with Felix Frankfurter when he came to answer accusations of Communism. (An understandable concern for a New Dealer, but Frankfurter happened to be a non-Communist)

      Then I think there was a gap, then it was back to the personal Miss America style interviews – if Miss America interviews were set with trap questions in an attempt to get the contestant to disqualify herself by, say, declaring that world peace isn’t what it’s cracked up to be.

      1. It’s possibly partially honest…but it’s also certainly scripted and reasonably calculated to make the nominee look good. And I say partially because while I think it’s certainly true that there are sacrifices and burdens associated with being a high level public official, and someone might in balance reject the nomination because it’s too much, the idea that anyone at that level is acting completely selfless in this regard is rather laughable. Most selfless things don’t involve a lifetime of power, honor, and deference from others. Quitting your job to go home and take care of your infirm parents is incredibly selfless. Being on SCOTUS? Not so much.

        Not sure about confirmation hearing history. I’ll have to look into that. Might be in a book I have somewhere….

      2. A cynic might say that televised Senate hearings on potential justices are, more than anything else, about getting face time on the local and national news for the APA: the Aspiring Presidents of America.

  9. She worked on behalf of George W Bush in Florida in 2000, so I would ask her how she squares being pro-life with all of the Iraqis Bush slaughtered because Bush was angry at Muslims?? And does she support torturing prisoners of wars in order to elicit false confessions in order to create a pretext to kill Muslims?? And does she think she owes the families of the slaughtered Iraqis an apology for helping Bush steal an election??

    1. If I were a whataboutist, I would ask, what about the people who died in totally-not-war economic warfare measures against Iraq during the administration Gore was part of?

      “because Bush was angry at Muslims”

      I’m fairly sure it was worse – Bush was a Wilsonian who thought he could bring civilization and enlightenment to the Middle East by war.

      1. Kavanaugh and ACB dropped everything and went to Florida and used the lawyerly talents to help Bush win…that is much different than just voting for a person. Bush/Cheney did things exponentially worse than anything Trump has done but because many Bush loyalists oppose Trump Democrats are now giving Bush a pass. Kavanaugh and ACB should have to answer for the crimes of the man they helped with their lawyerly talent because it goes to judgment. Kavanaugh was W Bush’s right hand man and so asking him if he supports torturing detainees to elicit false confessions would have been an entirely legitimate question. This woman holds herself out as pro-life—so how does she square being pro-life with working for a president that is responsible for the deaths of hundreds of thousands of Iraqis??

        1. The choice was between Bush and Gore…Gore of course presided over the “economic sanctions” (i. e. economic warfare) on Iraq and of course there was the Iraq Liberation Act of 1998 which proclaimed

          “It should be the policy of the United States to support efforts
          to remove the regime headed by Saddam Hussein from power
          in Iraq and to promote the emergence of a democratic government to replace that regime.”

          https://www.govinfo.gov/content/pkg/PLAW-105publ338/pdf/PLAW-105publ338.pdf

          Which is what Bush tried to do, of course, with the wonderful results we all know about.

          Yet in your alternate universe where Gore is President, suddenly Gore becomes a peacenik who kills fewer Iraqis.

          1. Clinton/Gore has access to the real intelligence and decided not to go to war. So go read the excerpts of “To Start a War” in the NYTimes. Colin Powell initially thought W Bush was joking about invading Iraq and thought there was no way he would be talking about it a week later. Literally no other president other than Cheney would have taken us to war against Iraq because it made no sense and the Bush administration had to make up their own intelligence to take us to war because the CIA thought they were nuts too. And the CIA resisted pressure from the Bush WH to use torture to elicit false confessions from detainees tying Saddam to 9/11…that is exponentially worse than Trump’s Ukraine call.

            1. That would be the same Iraq War that the Democrats 2000 VP Nominee, their 2004 President and VP Nominees, their 2008 VP Nominee, their 2012 VP Nominee, their 2016 Presidential Nominee, and their 2020 Presidential Nominee all voted for?

              1. Implicit in your comment is the Iraq War was a huge mistake AND W Bush was a terrible president. So congratulations! In fewer than 20 years Republicans gave America two bottom 5 presidents and we have the two deep recessions and debt approaching $30 trillion as the “tramp stamp” to forever remind us of your stupidity!

                1. Bush was a terrible President. The Iraq War was a huge mistake. And all the people from both parties who supported the war (like Joe Biden) should admit their mistake and retire from public life.

            2. Neither you nor anyone else knows how history would be different had UBL attacked a country led by Gore. Gore was never as smart as he thought he was. His fellow D senator knew that from the beginning by his behavior in caucus meetings.

              1. Just like no one could have done a worse job than Trump…no one could have done a worse job than W Bush from 2001-2008.

                1. I bet you could have. You’re making Bush look like a friggin’ genius here.

                  1. A Bush and Trump fan….do America a favor—don’t vote!!!

    2. “all of the Iraqis Bush slaughtered”

      Joe Biden voted to let him. Does that disqualify Biden from being president?

      1. Biden didn’t support invading Iraq because Bush failed to build a strong coalition with regional legitimacy. Plus Bush was the one beating the drums of war and after 9/11 Bush had 80% approval…so that is very different from Vietnam in which the old Cold Warrior senators were the ones beating the drums of war. Invading Iraq was a non sequiter after 9/11 and Bush was the individual that got the ball rolling and so he gets all of the blame. Does Biden deserve a Profile in Courage?? No, but had Bush never started talking about Iraq nobody would have wanted to invade the country.

        1. “Biden didn’t support invading Iraq ”

          “Those voting for the resolution were:

          Sens. Baucus (D-MT), Bayh (D-IN), Biden (D-DE), Breaux (D-LA), Cantwell (D-WA), Carnahan (D-MO), Carper (D-DE), Cleland (D-GA), Clinton (D-NY)…” wikipedia “Authorization for Use of Military Force Against Iraq Resolution of 2002”

          Voting to authorize the war sure seems like support.

          1. Opps, forgot “Kerry (D-MA)”

            3 of the last 4 Dem nominees for president. Fancy that.

            1. Everyone believed using force to remove Saddam was justified…but Clinton/Gore didn’t invade because they believed it would have been extremely stupid to invade when Saddam was being contained by the no fly zone. So Clinton/Gore used military force against Saddam and so obviously using military force to remove him would have been justified…but it would also be super dumb! Do you seriously believe right now we aren’t justified in using force to remove Lil Kim?? So by your logic Trump should invade NK tomorrow.

              1. SC,
                The “No fly” policy works so well in creating a stable government in Libya

                1. I don’t care about shithole countries now that fracking has made us energy independent?? The real reason W Bush invaded Iraq was actually a fairly good reason—America was in the midst of an energy crisis and the globe was in the midst of an oil crisis. So the underlying cause of the suboptimal American, English, Spanish, et al economies that produced a global housing bubble was high oil prices and in America high oil prices AND high natural gas prices. So export economies like Japan and Germany can simply export more products to oil exporters but the energy intensive consumer spending economies can’t process high energy prices. So Iraq was a big underperformer with respect to oil production so liberating its oil from Saddam would have helped the world and the Iraqi people.

                  1. That is terrible justification for the use of government force on anyone. You should be appalled that you think this qualifies as a “fairly good reason”.

                    1. Fighting over resources is probably the most common reason for war…except Bush was doing it for the benefit of the world (and not just America) because cheap energy is necessary in order to expand the global middle class. Invading Iraq was still stupid because a few people believed in fracking but Bush’s butt buddies Tillerson and Raymond dismissed it out of hand so Bush/Cheney had no idea how close frackers were to perfecting the technology.

                    2. I’m with squirreloid here.

                      Your argument is like saying it’s OK to rob someone, because you’d really like to have more money.

                    3. W Bush was behaving more like Robin Hood than he was behaving like a mugger. Saddam was an illegitimate leader squandering his people’s wealth…which is why Clinton used military force against him. And that is also why Obama used military force against Qaddafi.

          2. “Voting to authorize the war sure seems like support.”

            To disaffected, half-educated, obsolete bigots from No-Count, Ohio, perhaps . . .

          3. Of course, given that the case for the war was built on lies, including some big public whoppers by Powell, maybe we give those voting in favor a bit of slack.

      2. It absolutely should. In any non-shithole country, neither Trump nor Biden would be considered acceptable leaders.

        1. Let’s give “whataboutist” a rest, and consider its evil twin : “both-sides-ism”

          Biden in the same breath as Trump, beneath-contempt-wise? Not a chance.

          1. Biden is certainly not as bad as Trump in being deserving of contempt, but that doesn’t make his Iraq War cheerleading forgivable.

  10. Great post, thanks for writing.

  11. Booker and Barrett are now talking about use of the n-word. Should the unexpurgated word be used instead?

    1. I’m not saying she’s a gold-digger
      But I haven’t observed her with any economically disadvantaged African-Americans

      1. True, Spartacus is not one of those.
        But I happy to know that the kids from Haiti had sterling cups and spoons as babies.

    2. I know what they’re talking about, so no need.

  12. This idea that being a government employee is “serving” the government makes me wretch. It goes right along with all those idiots who think a government paycheck turns naive, gullible, stupid masses into wise, honest, trustworthy neutral arbiters of the public good.

    Saying that wanting to be a Supreme Court justice ought to disqualify one from being such, then turning around and saying she’s super-qualified because she wants to serve the public … good grief.

    1. All humans are awful so embrace the suck.

      That’s a pretty sad worldview to go through life with.

      1. I usually try to reject the completely cynical worldview but I think it’s a little absurd to believe that government service, and particularly serving in the jobs with high prestige and power, totally comes from a place of pure selflessness.

        1. Nah, it doesn’t. But that doesn’t mean we shouldn’t have some standard for our higher level public servants.

      2. Fellating “public servants” because they get a government paycheck is truly, deeply. madly pathetic.

        1. If only there were some middle ground between fellating and declaring them all naïve, gullible, and stupid.

          1. I thought calling them naive, gullible and stupid was the middle ground.

        2. Where do I go to get some fellating?

  13. I for one am glad someone is asking the tough questions

  14. ” I am truly impressed by her character. ”

    The handmaid seems to have the support of incel fanboys and obsolete, superstitious clingers, who think she’s just dreamy.

    1. For some reason I figured you liked incel boys AK…

      1. I like thinking about November, and January . . . looking forward to the predictable, enjoyable change of season . . .

        1. When Donald Trump wins the election and takes his second oath of office. Then proceeds to place two more justices on the Supreme Court thus locking up the conservative vote for a generation and eliminating the false left wing narrative.

          You and me both Rev.

  15. “Some members of the Supreme Court truly believe they are the best person for the job.”
    Really? Which members, and what is your evidence? I’m not a fan of the “wise latina” remark, but can forgive a bit of Marianismo. Justices in public talks always seem to have humility which derives in part from genuine intellectual curiosity and an understanding that there are loads of appellate judges, practitioners, and academics well qualified to serve.

  16. Wow. What a post.

    First, she admits she is not the only person who could do this job. It is easy enough to gloss over this modesty, but it is profound.

    My impression–and I may be wrong–is that Judge Barrett didn’t have to audition. Rather, those around her recognized and saw her potential, and boosted her. In other words, it was Judge Barrett’s network that lifted her up. She wasn’t dragging her network behind her. Every person I have talked to about Judge Barrett has conveyed the same message. She radiates this goodness that is so absent in our polity. I have only met her once or twice, and was immediately impressed with her persona.

    Third, she recognizes this process would be “difficult for anyone.” Even during this tough time, she is still thinking of others.

    Fourth, Barrett says she is not willing to say no because of the painful process. And what is the benefit? Service to her country. And critically, her family is committed to that process, because they share her belief. Even at the most difficult time, everything comes back to her family, and not herself. It is remarkable how someone who is so publicly selfless can still aspire to the highest judicial official in the land.

    Jeez, Josh. Suck up much? What job are you applying for?

    Here’s the thing. Yes, going through the hearings is undoubtedly a PITA, but a “difficult time?” There are a lot of people in the country going through difficult times right now. Barrett is not one of them. And she is “thinking of others?” Who exactly?

    And then the benefit is “service to her country,” as if she’s being asked to go fight in Afghanistan or something. Guess what. Being a Supreme Court Justice is not tough duty. It’s not some giant sacrifice to take that lifetime appointment and all that goes with it. The English language lacks words to describe just how insane calling it a “selfless act” is.

    Per Blackman, Mother Theresa had nothing on Amy Barrett.

  17. Apparently Kony-Barrett is refusing to recuse from an election challenge, and will instead help Trump hold onto power. We love our banana republic, don’t we folks?

    1. Yeah she should help by counting some fake mail in ballots.

      1. I’m starting to think people who actually believe there are fake ballots have never actually voted in their entire lives. Have you ever seen a general election ballot during a Presidential year? I mean do you even know what’s on a ballot? Do you think we live in some kind of cartoon world where it’s just a slip of paper with a big checkbox for Trump and a big checkbox for Biden?

        1. Say why don’t we talk about the large number of mail in ballots already rejected. Or about the 500,000 rejected in the primaries earlier this year.

          If you think that everyone’s vote counts, you are deluding yourself badly. This election will be a measurement with large error bars.

          1. Why is that relevant to JTD’s BS claim about fake ballots.

        2. I don’t think “fake” ballots here actually refers to ballots somebody printed at home. It refers to genuine ballots that weren’t filled out by whoever they purport to have been filled out by. Which IS a real thing.

          1. I don’t know about fake ballots, but the Republicans do seem to be trying out fake dropboxes.

            Funny how despite all the squawking coming from the right, recent vote fraudsters have mostly been Republicans.

  18. Love the liberal caterwauling going on today. These are the same people that are all for “women” but only the right kind of women. And oh those black kids, obviously she purchased them as political pawns. And always love it when a “progressive” suggests that her job as a woman is to care for those seven kids instead of sitting as a Supreme Court Justice. Keep it up with the PR stunts though. It is turning off voters by the minute.

    1. Weird that the people that kept bringing up her kids today were Republicans…

  19. Doesn’t ACB have more black kids than RGB had black clerks?

    1. More brains too. RGB was beholden to the illiberal left and their insanity.

      1. RGB was an awful jurist. She referenced international law as precedent and blatantly stated she ruled on how she felt not based on the the law or the constitution.

        1. Not true, but you do you.

    2. OK, this wins the internet.

  20. I don’t claim to have any special insight into ACB’s character, but I wouldn’t be naive enough to gush about it based on what she says about herself in a semi-scripted setting. Talk is a cheap.

  21. I wouldn’t be naive enough to gush about it based on what she says about herself in a semi-scripted setting.

    I don’t think it’s naive. Josh is angling for a better spot than South Texas. A judgeship seems to be slipping away, but I guess he has other possibilities in mind.

    1. Bernard,
      I’m afraid that Josh is stuck in a 4th tier school (if in fact it is that high).

      1. Just another example of how a Blackman can’t get up in this world. Stuck teaching at a crappy law school.

      2. You know, maybe if he spent more time on serious stuff, instead of his endless stream of silly blog posts, he might make an impression on someone.

        1. Have you ever seen his 108 page CV? It is pretty freaking hilarious.

  22. Brief reflections on the snippets of the hearings I’ve seen.

    1. All the Democratic Senators should yield all their time to Chris Coons, who comes across as smart, polite and subtle, and who does his politicking way more effectively than the teenage level of the others.

    2. Hawaii is not sending us their best people.

    1. Lee Moore : Hawaii is not sending us their best people.

      They peaked with Tom Selleck

    2. 2. Well, we hope they’re not.

  23. Let’s see, military people volunteer knowing they could be ordered to leave their homes and families for many months, live in austere conditions, and go into an engagement where they could die.

    She has to face some dingbats on media and social media.

    Boo-fucking-hoo.

    1. You go girl !

      I’m sure there are huge audiences around the country eager to pay $50 a head for a no nonsense tell it like it is “Shape up, you pathetic wusses !” lecture on the inanity of triggering and safe spaces.

      Within a couple of years you could even be the GOP frontrunner for 2024.

      1. I’d like to think there’s a maturity and intellectual difference between 18 – 22 year college students and a Supreme Court Justice nominee.

        1. A lot of soldiers are under 22, and a lot of them have less intellectual weaponry than college kids. Though soldiering is probably more helpful than attending college for inducing maturity .

          You may use that in your lecture tour without either attribution or fee.

          1. “A lot of soldiers are under 22, and a lot of them have less intellectual weaponry than college kids.”

            WOW.

            I could see that coming from some snobby Ivy college elitist but not from the right.

            Obviously your knowledge of our military comes form some Hollywood stereotype and you’re actually ignorant of our military academies, military colleges (e.g. The Citadel, VT, etc.), and in general the fine men and women who volunteer (like I did when I was 18 and spent 20 years).

            But go ahead and continue to spew your ignorance; it only makes you look bad.

            1. Intelligence testing has long been a part of armed forces recruitment, and was obviously vital in assigning draftees to specialist jobs.

              The Bell Curve has a good section on this and the basic answer is that army recruits have been, on average, average as to IQ. College kids, on average, are above average. Officers, on average, have been on a par with college kids.

              As the armed forces have become more technical, enlisted men (and women) now average about 105 IQ, about ten points below college kids, on average. Officers are now, on average, probably a little ahead of college kids.

              So, yes, soldiers are not dumb. They used to be about average, and maybe now a little above average in IQ. Officers may now be a little brighter than college kids on average.

              All of which is entirely consistent with “a lot of soldiers….have less intellectual weaponry than college kids.”

              Doing a rough calculation, there are about 400,000 enlisted men in the army, and if their average IQ is 105, and average college kid IQ is 115, then roughly 75% of enlisted men will have a lower IQ than the average college kid. That would be 300,000. Which is consistent with “a lot of soldiers.”

              IQ is not of course co-extensive with practical or moral worth.

              So putting the faux outrage to one side, just talk me through why it is reasonable for college kids to be paralysed by triggering, and in dire need of safe spaces, while enlisted army men and women – not quite so much.

              1. The Bell Curve has a good section on this

                Nothing that starts out like this can end well.

                1. Feel free to identify a single academic criticism of The Bell Curve’s account of Army intelligence testing.

    2. At the current level of partisan hatred, I wouldn’t discount her risk of dying; I’m sure she’s getting at least some death threats.

      Not yet as risky as being a soldier, though.

      1. Also humans are rather strange creatures.

        Side A, while bombing, shelling and shooting at soldiers of Side B, have nevertheless thought it worthwhile to put some effort into trying to undermine the morale of Side B soldiers, eg by encouraging them to dwell on whether their wives and sweethearts at home are being faithful.

        Contrary to the rhyme, words can sometimes hurt you, even if you can cope with artillery bombardment.

      2. This little exchange also reminds me of a shrewd aphorism from Julius Caesar, in his Gallic Wars :

        “qui se ultro morti offerant, facilius reperiuntur, quam qui dolorem patienter ferant”

        which is usually translated as something like :

        “It is easier to find men who will volunteer to die, than to find those who are willing to endure pain with patience”

        But “dolor” is not limited to physical pain, it encompasses suffering in general. In any event Caesar makes the correct point that the hardest part of the soldier’s job is fortitude in the face of pain, hardship and suffering, rather than the immediate terror of death.

      3. At the current level of partisan hatred, I wouldn’t discount her risk of dying; I’m sure she’s getting at least some death threats.

        Not yet as risky as being a soldier, though.

        What percentage of Supreme Court Justices have been homicide victims?

        Anyway, this sort of thing doesn’t seem to bother you when directed at the Pope. Pretty selective.

        1. Your average person has about 1 chance in 20,000 of being murdered, total lifetime risk. There have been 114 Supreme court justices. This means the Justices could be about 100 times more likely than your average citizen to be murdered, and you might plausibly expect that none of them would EVER have been murdered.

          Such are the statistics of small numbers.

          1. Gee, you’d think our Government would maybe protect our Justices so that risk drops to, I dunno, 0.0000001%.

            In accordance with 28 U.S.C. § 672, the Supreme Court Police falls under the jurisdiction of the Marshal of the United States Supreme Court who is appointed by the Supreme Court. The Marshal and the Supreme Court Police are authorized by 40 U.S.C. § 6121 to police the Supreme Court Building and protect the Justices, employees of the Court, and visitors to the Court.

            1. So far we’ve had just 45 Presidents and 4 of them have been assasinated. Plus a fifth who remarked that :

              I looked up at the presidential box above the stage where Abe Lincoln had been sitting the night he was shot and felt a curious sensation … I thought that even with all the Secret Service protection we now had, it was probably still possible for someone who had enough determination to get close enough to the president to shoot him

              before being proved right nine days later when an assassin’s bullet propelled him “close to death.”

              These are pretty good odds on assassinating a President, and it’s hard to believe that assassins will not develop a taste for SCOTUS Justices now that they’ve become very important and very controversial.

              1. They’ve been very important and controversial for a long time. There was plenty of hate for Earl Warren, for one, probably more than is for any Justice today.

  24. Is the circus over yet? Just have a vote. This is stupid.

  25. I hope she can show more of her virtue throughout the remainder of this hearing.

    You mean by telling more lies, and refusing to answer even simple questions like “Does the President have the right to delay the election” or “Is voter intimidation legal?” By denying the implications of the ACA case?

    1. She showed her colors when she permitted herself (and her family) to be used as props for a lethally reckless, belligerently ignorant campaign event for a desperate bigot and vulgar jerk.

      She showed she is a lousy mother by bringing her maskless children to a superspreader event during a pandemic.

      She is a superstitious, stale-thinking clinger with a nice resume and plenty of political patrons who expect her to do a handmaid’s work at the Supreme Court.

      She also is likely a precipitate for long-overdue structural changes in our government. Thanks for that, Judge Barrett. Counterproductive clingers are among my favorite culture war casualties.

  26. She also claimed not to know that Trump had vowed to appoint Justices who would overturn the ACA.

    1. Sweet infant Jesus must have whispered in her ear that a white lie would be acceptable in this circumstance.

      Or perhaps her master ordered his handmaid to lie.

  27. I do not believe that ACB will deliver the votes that Donald Trump wants because Donald Trump wants them. I do not believe that even Donald Trump is stupid enough to extract a promise from a Supreme Court nominee to deliver votes that Donald Trump wants because Donald Trump wants them.
    What I do believe, and what I am sure ACB knows perfectly well, is that she is a known quantity to Donald Trump’s consiglieres, and that she will, sincerely and conscientiously, deliver the votes Donald Trump wants 90% of the time because that’s what she sincerely and conscientiously believes herself.

    1. That’s probably true, though I’m not sure why it matters.
      Barrett was nominated to the 7th Circuit just a few months after publishing her article criticizing Roberts’ opinion in NFIB.

      I doubt the connection was lost on her, and it certainly may have been made explicit by one of those consiglieres, if not directly by Trump.

      Will she deliver the votes Trump wants? Depends on which ones he wants vs. which ones he pretends to want. I doubt he really cares much about Roe, one way or the other, and may secretly prefer that the ACA stand, as it will give him more excuses for not introducing that wondrous, cheap, all-healing plan that will be out any day now.

      He cares about election cases, and anything else affecting him personally, and probably immigration, out of bigotry if nothing else.

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