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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

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The Barrett Nomination

Posted by: pg slot | Jan 12, 2021 10:12:00 PM

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

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