The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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?"
ACB's answer to Graham's question on how it feels to be nominated to the Supreme Court is pretty tremendous. pic.twitter.com/ZuvGCl4iOG
— JERRY DUNLEAVY (@JerryDunleavy) October 13, 2020
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.