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Friday, October 16, 2020

Prawfs' moment in the sun

One drawback to paying zero attention to the Barrett confirmation hearings: I missed that Barrett did a guest stint here in March 2008 (I was doing a semester-long guest stint at that time that led to Dan inviting me here permanently). Her six posts are listed among her "Opinion, Editorals, and Letters" section in her CRS bio. One post, about potential retroactivity problems in eliminating the crack/powder distinction, was the subject of an exchange with Sen. Booker; Booker asked why she did not discuss the injustice of the distinction--a stupid question justifying the amount of attention I devoted to the hearing. (H/T: Josh Blackman, who pays more attention than I do). (If you want to subject yourself to it, it is around the 7:17:00 mark).

Booker described us as a "well-known legal academic" blog, which is nice. Barrett called us "LawPrawfsBlawg." Oh, well.

Posted by Howard Wasserman on October 16, 2020 at 08:16 AM in Blogging, Howard Wasserman, Law and Politics | Permalink


Thanks for posting this. I went back and read her article. She was simply bringing up many issues that will naturally arise on rehearing for those affected. She even states its not her area of expertise and was doing some deep thinking.

Posted by: Alexander J. Davie | Oct 18, 2020 3:32:42 PM

It is not a matter of "shoulds." As a matter of whether the post demonstrates that Barrett is extreme (to use Paul Horwitz's language) or whether she is less concerned about racial justice than the average judge, I agree it doesn't. In fact, I read her final question on whether retroactivity was wise as a genuine question, which makes her more open-minded on the issue than I would have expected with a Bayesian prior of her being a Trump nominee. If the question is whether the post serves as proof of some disqualifying characteristic (to use Paul's criteria, again, that she's "extreme" or "scandalelous"), then it doesn't meet that bar.

But the post and her response to the question does tend to indicate that her perspective is one where the burdens of retroactivity are much more readily visible to her than the racial injustice of the crack/powder distinction. The administrative burdens are something that she experiences at an everyday level because her husband describes them to her. The racial injustices are more detached in that she only reads about them. None of that should be disqualifying, because if only people who share Cory Booker's perspective on the world should get confirmed then we'd never be able to fill the seat. But if the question is whether she shares Cory Booker's values and perspectives--and I submit that is the analytical question for Cory Booker--then the post and her answer tend to indicate that she does not.

You are operating in a framework where Senators should be trying to evaluate candidates based on some set of criteria like Paul's extremeness and scandal. By those criteria, the post doesn't indicate anything about because it doesn't show anything close to extremeness or scandal. But the reality is that that ship sailed long ago.

Posted by: TJ | Oct 17, 2020 7:54:47 PM

It was a blog post of <500 words and she wanted to focus on one thing. She wasn't even taking a normative position on it--mostly she threw out a bunch of questions and solicited input on the question from people more in the know. I don't think we can tell from these <500 words how she feels about striking that balance.

I should not have to disclaim agreement with racist speech every time I write a blog post about the First Amendment issues surrounding racist speech.

Posted by: Howard Wasserman | Oct 17, 2020 6:40:56 PM

I don't think that the wisdom of the policy can be so neatly cleaved from whether it was a good idea to make it retroactive. Her post discusses a number of problems with making the policy retroactive, but an enthusiastic supporter of the policy would surely say those are outweighed by the injustice of not applying the policy, however messily, retroactively.

Posted by: Asher Steinberg | Oct 17, 2020 6:30:38 PM

The only pertinent question for Amy Barrett is, "When can you start?"

Posted by: thegreatdisappointment | Oct 17, 2020 1:33:03 PM

I agree it was sort of a silly pseudo-question, in that it was really a interrogative statement meant to imply something about her that doesn't follow from her blog post.

Posted by: Edward Cantu | Oct 17, 2020 12:30:46 PM

The comparison to peer review is off base, I think. A peer review that criticizes an article because it is not the one that the reviewer is written is missing the point because academia is supposed to be about the pursuit of truth and not about self-replication: just because someone doesn't share your priorities and values doesn't mean that they are a bad academic. But the modern judicial appointments game is all about getting ideological clones of oneself appointed. Realistically speaking, whether Amy Coney Barrett shares Cory Booker's priorities and values is the single biggest consideration that matters to his vote.

The blog post is thus relevant evidence in that it tends to suggest that Barrett does not share Booker's priorities and perspective. She probably places more weight on administrative burdens than Booker does. This doesn't mean that she doesn't care about racial justice, or that she thinks the administrative burdens of retroactivity outweigh the racial justice concerns that motivated it. But it does tend to indicate that she values racial justice and administrative cost differently than Booker.

The whole line of questioning is still silly because we don't really need the blog post to know that Barrett does not share Booker's priorities and values--the fact that she was nominated by Trump is much stronger Bayesian information for that proposition. It is the tragic farce of the modern judicial appointments game that we all know that Booker won't vote to confirm because he expects Barrett to rule in ways that he dislikes (and he has that expectation because she was nominated by Trump), but he can't say out loud that he will categorically vote against anyone nominated by Trump, so he has to look for other things instead to seize upon. But just because Booker is making what Louis Michael Seidman calls a "substitute argument" does not mean that the argument's internal logic is faulty.

Posted by: TJ | Oct 17, 2020 11:27:57 AM

I did not mean to suggest this was the stupidest question in the circus; no doubt there were stupider questions asked.

But this is a particular species of stupid question--the equivalent of the peer reviewer, tenure reviewer, or workshop participant who demands to know why you didn't write the article that he (and it almost always is he) would have written or wants you to have written. Worse, Booker was trying to suggest something about her (she lacks compassion or is insufficiently attuned to race) based on her choice of topic. For a blog post of <500 words.

Or maybe Booker would have been satisfied if Barrett had merely acknowledged the injustice of the distinction in the post before moving to her main topic ("The distinction is unjust and it is good that they got rid of it. Now let's talk about retroactivity.")? I doubt it.

And it tells me nothing interesting about how her intellectual interests are shaped because, again, it's a blog post of <500 words. I write about 150 posts a year; many start with conversations with my family and what is on our minds that lead me to interesting legal or other thoughts and questions that I might throw out there. That is very different from how I find ideas that I am going to fully engage with in scholarship.

Posted by: Howard Wasserman | Oct 16, 2020 10:53:19 AM

I think you’re being a little unfair to Booker. His point was not that a discussion of whether it would be difficult to implement a policy as a practical matter should include discussion of whether the policy is wise. Rather, his point was that Barrett chose to write a blog post about the former, not the latter. He’d already established that Barrett had no special academic familiarity with the whole subject of the crack/powder disparity and how to address it. That led to the question: why this particular intervention? And Barrett’s answer was: because the subject came up while she was chatting at home with her husband, who’s an ex-AUSA. Doesn’t that tell you something interesting about how Barrett’s intellectual interests are shaped? Given all the utterly unproductive questioning that’s taken place, this strikes me as an odd example to flag as “stupid.”

Posted by: RQA | Oct 16, 2020 10:10:37 AM

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