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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

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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