The Volokh Conspiracy

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The Naturalness of ACB

Judge Barrett made a connection that I had not expected.

|The Volokh Conspiracy |


Judge Barrett has now finished her testimony. I have listened to most, but not all of the proceedings. (I am catching up on the parts I missed by watching YouTube at double-speed). Here are my general impressions.

First, past confirmation hearings were stilted affairs. There was little personal connection between the nominee, the Senators, and the public. The nominees felt sterile, and almost robotic. Judge Barrett was the polar opposite. She exuded a naturalness that came through on camera. She didn't need to pretend to take vigorous notes. (The questions really aren't that hard.) I felt an instant connection to her and her family in ways I did not feel with prior nominees. To be sure, she repeated some lines over and over and over again, and refused to answer the same questions her predecessors refused to answer. But I did not get the sense that every word she said was calculated to maximize her chance of confirmation. Indeed, at a few junctures, she went off script and said things that would not not help her prospects, but she believed them to be so. For example, her answer about how she felt was so genuine. Her discussion of weeping with her daughter over George Floyd's death was heart-breaking. She was real.

Second, I think this charisma will help her elevate to the next level. Justice Scalia was a rock star. Justice Ginsburg was a rock star. They had that special oomph. When they entered a room, it lit up. I am eager to see Justice Barrett hit the speaking circuit, and make her vision of the law accessible to the masses. She has the rare combination of personality and intellect, which will allow her to bring the Constitution to the people. But–and here is the huge but–I think Judge Barrett may have the humility and modesty to prevent that rock-star status from going to her head. Fame affected both Scalia and Ginsburg in a bad way. I hope ACB can resist the siren call.

Third, she is really, really well-versed in constitutional doctrine. She readily talked about "external constraints" on federal power. She recognized that you cannot talk about Brown v. Board of Education without also talking about Cooper v. Aaron. (More on those cases later). She refused to indulge in the myth of judicial supremacy, and referenced Ex Parte Merryman. (Here, one Barrett could learn from another Barrett). She casually explained that Section 2 of the 14th Amendment permits disefranchisement of felons but the Second Amendment has no such constraint. We have to keep in mind that ACB has been a constitutional law professor for some time. She speaks our language. I think Justices Gorsuch and Kavanaugh have a deep familiarity with these doctrines. They were raised in our legal culture. But ACB has internalized it through years of scholarship. For her, it is natural.

I honestly did not think I would praising a nominee in this fashion. I really didn't. I hadn't planned to even watch the proceedings. I've long considered the hearings to be a vapid ritual–meaningless Kabuki theater. But ACB drew me in. She made a connection that I hadn't expected to experience. I think even the Democratic Senators saw that connection. And so will the American people.