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Sunday, September 27, 2020

The Barrett Nomination

At Judge Barrett's confirmation hearing, I would be interested to know if she gave any consideration to declining the nomination. Someone should ask her. Maybe the answer is no. Maybe the answer is yes, but she concluded that she should accept. Either way, I'd be interested to hear her reasoning. This question strikes me as entirely appropriate and might be more illuminating than the standard game that Supreme Court nominees play with the Senate. 

In the interests of full disclosure, Judge Barrett and I were in the same summer associate class in 1997. I don't have any particular recollections of her though.

Posted by Gerard Magliocca on September 27, 2020 at 09:00 PM | Permalink

Comments

Closest answer to this question so far in the hearings, Day 2:

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.

Posted by: Orin Kerr | Oct 14, 2020 1:26:07 AM

@Joe

The question of whether she considered declining an offer to SCOTUS potentially taints the Court for you?

Posted by: thegreatdisappointment | Oct 1, 2020 9:07:17 PM

"Her other co-clerk Noah Feldman says she deserves to be on the court."

So it is a matter of dispute, not something everyone agrees upon ... a basic reason to ask questions?

That is the "air to be cleared" -- it's something that is strongly dividing people, including people specifically in the legal community. It is for some people, including them, a question that potentially taints the Court or maybe even him.

Some don't care about it. Such is the nature of many questions asked.

Posted by: Joe | Sep 30, 2020 7:21:44 PM

Gerard, I suspect that is what every court of appeals judge who is asked to be on the Supreme Court thinks. There are politicians who don't want to be judges at all who may not feel that sense of duty if asked. But I think that lifetime judges are highly likely to feel that.

Posted by: Orin Kerr | Sep 30, 2020 6:40:37 AM

"Perhaps I'm odd in this respect, but I don't think it's obvious that the Senate should bother to hold a vote on a nominee if asked on a judge or a Justice."

Just as a judge could decline to be nominated to the supreme court because they have lost confidence in the supreme court (or the confirmation process), so a senate could decline to hold a confirmation process on a nominee if they've lost confidence in that president.

Posted by: Mitch Albums | Sep 29, 2020 4:42:41 PM

Her other co-clerk Noah Feldman says she deserves to be on the court.

So it seems like a wash.

And I still don't understand why there's any air to clear.

Posted by: thegreatdisappointment | Sep 29, 2020 1:52:05 PM

As to the question, I think it's useful to the degree the question is out there. For instance, her former co-clerk Jay Wexler on Twitter beforehand said she wished she wouldn't take it. It is not likely purely judicial questions are asked. So, she can answer and clear the air.

Posted by: Joe | Sep 29, 2020 1:13:06 PM

"it is entirely possible that confirmation hearings are, as a general matter, not only unnecessary but more than a waste of time--that they do more harm than good, except for fundraising purposes for officeholders and interest groups"

I think the basic thing here to remember is that we don't have to pick judges as we do now. Some merits panel might do it or something.

We use a political process. For good or ill. And, confirmation hearings will factor that in. To the degree this results in "fundraising" type things, such is part of the mix.

We can fashion better approaches to the hearings, perhaps, but unless we basically change the nomination system, it will have some partisan / interest group aspects. And, given modern media technology, it won't just be for whomever shows up or in the papers like back in the day, but it will be in part for television etc. That too will be hard to avoid, even if people don't like the "kabuki" there, but that is somewhat separate from the constitutional confirmation process issue.

Posted by: Joe | Sep 29, 2020 1:07:05 PM

Orin,

Your suggested answer is "correct" only if that's what she thinks. Also, people do decline positions offered by presidents, even on the Supreme Court. (Though with respect to the Court that has not happened in the last 25 years or so). Thus, some people do not see it as their duty to accept.

Anyway, I didn't mean this as some sort of gotcha or trick question. I'd just be genuinely interested. Perhaps I'm odd in this respect, but I don't think it's obvious that you should say yes if asked to become a judge or a Justice. Here's an example. Suppose at some point there was "Court-packing." The president comes to someone and says, "OK, I'd like you to fill one of these four new seats." Should that person say yes in the interest of public service? Maybe they would say "No thanks. Not under these circumstances." Or maybe they would feel obligated to serve. I don't know.

Posted by: Gerard | Sep 29, 2020 8:22:05 AM

I believe it was Judge Merrick Garland when given the choice between trick-or-treat famously said, "I'd rather be treated like Robert Bork than not be treated at all".

Posted by: Happy Hallows Eve | Sep 29, 2020 7:02:48 AM

Here's the correct answer a nominee would give: "Senator, I believe deeply in public service to my country. And I am already committed to spend my life as a federal judge, whether I am fortunate enough to be confirmed to the Supreme Court or I remain on the court of appeals. In my view, when one receives the call to public service, directly from the President of the United States, to serve your country, I see that a duty to fulfill."

Posted by: Orin Kerr | Sep 29, 2020 5:36:04 AM

As Hillary Clinton famously said :At this point what difference does it make.

Posted by: Sam Tenenbaum | Sep 28, 2020 11:40:27 PM

I guess if she’s ultimately confirmed (or, given that she’s Catholic, you could say reconfirmed?), then Democrats will just have to ...

grin and Barrett.

Thanks folks, I’ll be here all week (and it’s only Monday).

Posted by: hardreaders | Sep 28, 2020 10:35:46 PM

Thanks to Gerard and Paul for their responses. But I'm afraid I disagree. I see the question as inappropriate, and, indeed, "entirely" inappropriate, because it really does not tell us anything about the nominee's views as a future justice. In my view, questions are inappropriate unless they tell us something about the nominee's views as a justice. Questions involving private or public life having no discernible connection with judicial office are inappropriate questions to ask of a nominee for judicial office. Just as we would say the same for candidates for other sorts of offices.

So, for example, other inappropriate questions would include inquiring into the candidate's private life when those questions have nothing discernible to do with their judicial office. For example, "Why do you think it was appropriate for you to hand over child-care duties to someone else while you pursued a career?" Or, on matters of public concern: "As a citizen, how do you feel about the President's refusal to surrender his tax returns?" "Do you agree with celebrities using their status to promote social and political causes when they simply have no expertise or standing to do so?" "What is your view about the obvious and pervasive left-wing slant in legal academia, and what is to be done about it?" These questions ought to be out of bounds categorically, and not simply because the confirmation process is corrupt (as it, one can agree, is), but because they have no relationship with judicial office and the duties that a candidate would carry out in office if confirmed.

Posted by: anon | Sep 28, 2020 8:23:12 PM

How about ask her why half her circuit court opinions are unsigned and begin with

"NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1"

And end with

"We have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C)."

Posted by: Per Curium | Sep 28, 2020 6:54:35 PM

Well, that is an explanation, Gerard.

Thank you for telling me.

Posted by: thegreatdisappointment | Sep 28, 2020 5:51:16 PM

Judge Bork was asked why he wanted to be on the Supreme Court at the his confirmation hearing, by a Reppublican Senator. He said "I think it would be an intellectual feast just to be there." No mention of serving the nation, or of the importance of justice, or of assuring fidelity to the constitution. He just thought the job would be fun. The answer definitely hurt him. Barrett won't make that mistake.

Posted by: arthur | Sep 28, 2020 10:08:03 AM

I agree with Gerard that the question is not inappropriate--certainly not "entirely" inappropriate. I personally think there are any number of reasonable answers to the question, but regardless I don't think it's an out of line question and Gerard is probably right that some answers would provide a useful window into the nominee's conception of public office. That said, I think Gerard's second sentence in his comment is the money sentence and that it is entirely possible that confirmation hearings are, as a general matter, not only unnecessary but more than a waste of time--that they do more harm than good, except for fundraising purposes for officeholders and interest groups.

Posted by: Paul Horwitz | Sep 28, 2020 9:11:00 AM

I agree with Gerard that the question is not inappropriate--certainly not "entirely" inappropriate. I personally think there are any number of reasonable answers to the question, but regardless I don't think it's an out of line question and Gerard is probably right that some answers would provide a useful window into the nominee's conception of public office. That said, I think Gerard's second sentence in his comment is the money sentence and that it is entirely possible that confirmation hearings are, as a general matter, not only unnecessary but more than a waste of time--that they do more harm than good, except for fundraising purposes for officeholders and interest groups.

Posted by: Paul Horwitz | Sep 28, 2020 9:10:59 AM

All nominees to the Supreme Court in recent memory (save for Harriet Miers) were qualified. If only questions about qualifications were appropriate, then none of these confirmation hearings were necessary (or they were a waste of time). So I don't agree with your premise. I think that the only inappropriate questions are ones like "How would you rule in a pending case? Or how would you rule in some hypothetical future case?" Everything else is fair, though the nominee can decline to answer. In Judge Barrett's case, maybe her considerations were personal, and it's fine if she says that she doesn't want to share that.

Now if you mean "Why would I be interested to know?" I suppose it's because it was a decision entirely within her discretion, and I'd just be curious to know how she thinks through discretionary decisions with a public impact (as opposed to, say, purely private or ordinary decisions). She'll have discretion in granting cert. petitions--it's part of her future job.

Hope that helps.

Posted by: Gerard | Sep 28, 2020 8:48:04 AM

I second that question to Professor Magliocca. So far as I can see, it seems entirely inappropriate to ask that question.

Posted by: anon | Sep 28, 2020 7:34:13 AM

How is that question remotely related to her qualification to be a Supreme Court justice?

I'd be interested in your explanation.

Posted by: thegreatdisappointment | Sep 27, 2020 11:39:57 PM

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