Much has already been said about her failure to give clear answers about her views of the Affordable Care Act
or Roe v. Wade
. However, she has taken the art of giving non-answer answers to a new low this week on a matter that affects us all: the stability and security of our elections.
On multiple occasions, she gave troubling answers as to whether America can be assured of free, fair and safe elections. This is all the more concerning in light of the fact that more than 10 million people
have already cast ballots and open questions about how safe
and stable the 2020 election will be.
For instance, in response to New Jersey Sen. Cory Booker, Barrett refused to answer the straightforward question
of whether every American President “should make a commitment — unequivocally and resolutely — to the peaceful transfer of power.” She called the issue
a “political controversy” and made an empty statement about how “one of the beauties of America” is that we haven’t had “the situations that have arisen in so many other countries.”
Yes, in response to a basic question about whether a president ought to respect the authority of his successor, the best answer a preeminent legal expert could give amounted to ducking the question and saying in effect, “well, at least we’re not an unstable developing country.”
When asked Tuesday by Ranking Member California Sen. Dianne Feinstein
and Wednesday by Illinois Sen. Dick Durbin if the Constitution or federal law gives the President the authority to delay an election unilaterally, she also refused to answer clearly and definitively. The question was again a relative no-brainer, given that regardless of Trump’s nonsensical huffing and puffing,
it is Congress, not the President, who has authority
to set and move the date of elections.
In another remarkable exchange with Minnesota Sen. Amy Klobuchar, Barrett would not answer
the question of if, under federal law, it is illegal for armed people intimidate voters at the polls. Barrett answered that she couldn’t “characterize the facts in a hypothetical situation” and without speaking with law clerks, doing research and engaging colleagues. Even when having the language of the relevant statute
read to her, Barrett demurred.
In each of these instances, Barrett was asked to respond to an uncontroversial factual statement, untethered to any pending proceeding that may come before her. We, as lawyers — even ones who are nominees for the bench — can easily acknowledge basic legal truths without wading into the specifics of a case. To use a basic example, a first-year law student can tell you that murder is typically defined as the unlawful and premeditated killing of one person by another — without expressing an opinion about whether a particular person should be found guilty of doing so. Put another way, it is not that hard to state a fact, without applying that fact to the merits of an individual case.
By failing to state the obvious, she has cracked the door open for bad actors to test the limits of the law. For example, if the President is considering
not accepting a peaceful transfer of power or moving the date of the election, why wouldn’t he now try to roll the dice on whether he can get away with it in the Supreme Court? At this point, it might even be irrational for him not to.
Where former President George W. Bush had the good sense
to cryptically state that he wanted to appoint judges who would “strictly interpret the Constitution,” Trump has gone further and stated the quiet part out loud by putting litmus tests
on judicial appointments. It would not have been hard for Barrett to show some distance from the President by restating uncontested points about the law — particularly to a nation hungry for peaceful and secure elections in the middle of a global pandemic. And, frankly, it’s insulting to the public to suggest that she has no views on such critical issues.
Much was made on Tuesday of a charming moment
in which Barrett, responding to a question from Texas Sen. John Cornyn, held up a blank notepad, indicating that she wasn’t using notes for her hearing.
What would it matter to if she’d had notes, anyway? It’s not like she’s saying much of anything at all.