Today, the Senate Judiciary Committee held a hearing on two circuit court nominees, two district court nominees, and one executive nominee. Here are my preliminary thoughts on the proceedings, which can be watched here. (I’ll focus on the first panel, as Parker and Campbell skated through and will be confirmed easily).
DISCLAIMER: These are just my opinions. Reasonable observers of the hearing can obviously disagree on any of these points.
- Two Circuit Court Nominees Will Not be The Norm – Chairman Chuck Grassley (R-IA) started the day by recognizing that the hearing will be the second with multiple circuit court nominees, a fact that had drawn liberal criticism. Grassley’s statement acknowledged that the hearing was “unusual” and suggested that he would go back to having only one circuit court nominee per hearing.
- Joan Larsen Will Be Confirmed – Republicans really want Justice Larsen on the circuit court bench; running ads to influence home state senators, threatening to ignore blue slips, and double-booking her with another controversial nominee. Over the course of the hearing, it was clear why. Larsen was poised and comfortably conversed with senators on several legal issues. She assured Democrats that she would be willing to rule against Trump, and emphasized the importance of judicial independence. She also blunted another line of criticism by confirming that she had no role in the controversial “torture memos” which came from the Office of Legal Counsel (OLC) during her tenure there. As I’ve noted before, the strongest argument against Larsen is a procedural one based on lack of consultation. Now that the blue slips are in, it’s a question of when, rather than if, Larsen will be confirmed.
- Amy Barrett Will Be Strongly Opposed – As Sen. Dianne Feinstein (D-CA) noted early in the hearing, Barrett is “controversial.” Her writings on Catholic judges and the death penalty and stare decisis have drawn criticism. For much of the hearing, Barrett carefully navigated her old writings, assuring the Committee that she would follow precedent and that judges could not let their religious views supersede the law. However, much of the posturing was undone by two key missteps. First, under questioning from Sen. Mazie Hirono (D-HI), Barrett declared that, had she been nominated as a trial judge, rather than as an appellate judge, her Catholic faith would compel her not to enter orders of execution. Sen. Hirono balked at the answer, but did not ask the obvious follow-up: why does Barrett feel compelled to recuse herself from entering orders of execution as a trial judge, but not from affirming such orders as an appellate judge? Second (and much more damaging from a PR perspective), in an exchange with Sen. Al Franken (D-MN), Barrett acknowledged that she had accepted $4200 from the controversial anti-LGBTQ group Alliance Defending Freedom (ADF). When Franken pointed out that ADF held many extreme views, including supporting the sterilization of transgender persons, and had been designated as a hate group by the Southern Poverty Law Center (SPLC), Barrett inexplicably tried to defend ADF. She argued that as ADF had filed as co-counsel at the Supreme Court with Wilmer Hale and that, as she herself had experienced no discrimination while interacting with them, they could not be a hate group. It was an unnecessarily defensive performance and undermined her careful answers until that point.
- Franken Remains the Minority’s Best Questioner – In the last “big” hearing, Franken helped lead the Democrat’s charge against John Bush and Damien Schiff. This time, he shone in his exchange with Barrett, honing in on inconsistencies in her answers, pressing for follow ups, and stepping back when needed. Despite not having a law degree, Franken’s performance was one any trial attorney would be proud of.
- Sen. Kennedy Remains the Majority’s Toughest Questioner – During the Bush-Newsom-Schiff hearing, Sen. John Kennedy (R-LA) hammered the latter for his inflammatory blog posts and refused to question Bush at all. This time, Kennedy started off his questioning by noting that some Republicans had suggested he “go easy” on the Trump nominees. He declined to do so, pushing Barrett and Larsen to engage with him on legal philosophy, and criticizing them when they refused to do so. Sen. Mike Lee (R-UT) was forced to come to their defense, noting that the nominees were ethically barred from answering some of Kennedy’s questions. Nevertheless, an unchastened Kennedy maintained the same tempo of questioning in his second round. At any rate, while Kennedy will likely support both Barrett and Larsen, his desire to engage in real legal debate is refreshing and makes him a welcome presence on the committee.