The Barrett Rule: How Democratic Members Are Creating A New and Dangerous Standard For Confirmations

Below is my column in USA Today on the troubling course taken by Democratic members in the confirmation hearing of Judge Amy Coney Barrett. As I have stated, there are a host of legitimate questions to be raised over Judge Barrett’s view of the law. Indeed, I praised the exchanges between Sen. Dick Durbin (D., IL.) and Judge Barrett as the substantive highlight of the hearing. Unfortunately, those were the exceptions. Instead, the thrust of the entire hearing was that Barrett was unqualified due to her expected vote in the upcoming case on the Affordable Care Act (ACA). Various senators directly stated that they would vote against Barrett to protect the ACA. That is what is so unnerving about the Barrett confirmation hearing.

Here is the column:

The confirmation hearing of Judge Amy Coney Barrett could easily have been mistaken for the sentencing hearing for John Wayne Gacy. Surrounding Barrett were huge pictures of sick individuals. One would think that Barrett was being confronted with the faces of her victims. In reality, the pictures perfectly captured a far more important message. Senators had finally broken free from any pretense of principle in reviewing the qualifications of a nominee. Indeed, many are about to create a new rule, the Barrett Rule, allowing conditional confirmation voting. The pictures were meant to pressure Barrett to either satisfy senators that she would vote against an Affordable Care Act challenge or they would vote against her confirmation.

There has long been a debate over the legitimate grounds for opposing a Supreme Court nominee. While senators can vote under the Constitution for good, bad or no reason at all, most have sought to justify their votes on some principled basis. For most of our history, senators followed the rule that disagreement with a nominee’s jurisprudential views was not a basis to vote against their confirmation. A president was viewed as constitutionally entitled to appoint jurists reflecting their own legal viewpoint and the primary basis for voting against a nominee was on the lack of qualifications or some disqualifying personal or professional controversy. It was a rule of senatorial deference that controlled the majority of nominations in our history.

Voting against nominees based on their expected votes

Members began to chafe at the limitations of this principle in the second half of the twentieth century. With abortion, desegregation and other hot button issues, confirmations became politics by another means. With every year, senators became more open about voting against nominees solely on the basis for their expected votes. This trend was accelerated in October 1987 in the confirmation hearing of Judge Robert Bork presided over by a senator from Delaware named Joe Biden. Bork was labeled “outside of the mainstream” of legal thought and rejected in a process that is now called “Borking.”

Democratic members have struggled with changing rationales for voting against Barrett, who has impeccable credentials as an accomplished academic and respected jurist. One such implausible claim was made the day before the hearing by Sen. Chris Coons (D., Del.)  on Fox News Sunday. He claimed the nomination “constitutes court packing.” Both Biden and his running mate Sen. Kamala Harris (D., Cal.) have referred to nominating conservatives as court packing. Biden and others have refused to tell voters whether they will move to pack the Supreme Court if the Democrats retake both the Senate and the White House (a proposal once denounced by Ruth Bader Ginsburg herself). Instead of answering, Coons and others insist that Barrett’s nomination is court packing — a position that would allow them to vote against her without the need to consider her actual qualifications.

The portrayal of the Barrett nomination as court packing is facially absurd. Court packing is the expansion of the Court to create a dominant ideological majority. Referring to such a proposal by Franklin Delano Roosevelt, then Sen. Joe Biden once denounced it as “a bonehead idea . . . a terrible, terrible mistake” in seeking to add seats to the Court just to create a majority. Filling a vacancy on the Supreme Court is not court packing under any remotely plausible definition. Otherwise, anytime you disagree with the choices of a president, it would be court packing despite leaving the court the same size.

With little traction on the packing pitch, Senators were left with a rare moment of clarity. Indeed, Sen. Cory Booker (D., NJ) captured it best when, without waiting to hear from Barrett, Booker announced that he would vote against her. The reason was that she might vote against the ACA. The clear suggestion is that, after an election, the Democrats hoped to nominate someone who would clearly support the ACA. The issue was simply her expected vote on Nov. 10 in the case of California v. Texas.

Barrett and the ACA

We have now reached the Rubicon of confirmation politics. Thirty-three years after the Bork hearing, senators are now stripping away any pretense or nuance: they will oppose Barrett because of her expected votes on cases. In particular, Democrats have been arguing that they will vote against Barrett to prevent her from voting on a pending case, California v. Texas, dealing with the constitutionality of the ACA. Sen. Mazie K. Hirono (D., HI) announced recently that she would vote against Barrett because “she will vote to strike down the Affordable Care Act.”

In reality, the ACA case is unlikely to be struck down. The Court may uphold the lower court in declaring the individual mandate of the original ACA to be unconstitutional, but the real issue is whether that provision can be “severed” from the rest of the statute. Most legal experts believe that the Court has a clear majority favoring severance and preserving the rest of the act. The law was originally saved by Chief Justice John Roberts who felt that the individual mandate was constitutional. Congress later nullified the mandate.

The question before the Court is whether the rest of the act can be “severed” from the now defunct mandate — a question that cuts across the Court’s ideological divisions. Indeed, conservatives like Roberts and Brett Kavanaugh are expected to uphold the rest of the law. Thus, despite the pictures in the hearing, the picture for the ACA looks solid even with a Justice Barrett on the Court. Indeed, no one knows how Barrett would vote on the issue of severability.

The more important decision in the hearing is that some Senators are now invoking the right to vote against a nominee on the basis of her expected vote on this pending case. It will be a uniquely ironic moment since it was Ginsburg who refused to answer questions on pending or expected cases as improper and unethical inquiries by the Senate. It became known as the “Ginsburg Rule.” We may now have the Barrett Rule where a nomination can be rejected without such assurances.

The Barrett Rule would allow not only for the packing of a Court but the packing of the Court with guaranteed ideological drones. It is court packing without any pretense. Like our current politics, it would finally strip away any nuance or nicety. The court, like Congress, would become subject to raw and brutal politics at its very worst.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

501 thoughts on “The Barrett Rule: How Democratic Members Are Creating A New and Dangerous Standard For Confirmations”

  1. NSA Warned Trump That Giuliani Would Feed Misinformation

    Rudy Met With People Linked To Russian Intelligence On Last Year’s Trip To Ukraine

    U.S. intelligence agencies warned the White House last year that President Trump’s personal lawyer Rudolph W. Giuliani was the target of an influence operation by Russian intelligence, according to four former officials familiar with the matter.

    The warnings were based on multiple sources, including intercepted communications, that showed Giuliani was interacting with people tied to Russian intelligence during a December 2019 trip to Ukraine, where he was gathering information that he thought would expose corrupt acts by former vice president Joe Biden and his son Hunter.

    The intelligence raised concerns that Giuliani was being used to feed Russian misinformation to the president, the former officials said, speaking on the condition of anonymity to discuss sensitive information and conversations.

    The warnings to the White House, which have not previously been reported, led national security adviser Robert O’Brien to caution Trump in a private conversation that any information Giuliani brought back from Ukraine should be considered contaminated by Russia, one of the former officials said.

    The message was, “Do what you want to do, but your friend Rudy has been worked by Russian assets in Ukraine,” this person said. Officials wanted “to protect the president from coming out and saying something stupid,” particularly since he was facing impeachment over his own efforts to strong-arm Ukraine’s president into investigating the Bidens.

    But O’Brien emerged from the meeting uncertain whether he had gotten through to the president. Trump had “shrugged his shoulders” at O’Brien’s warning, the former official said, and dismissed concern about his lawyer’s activities by saying, “That’s Rudy.”

    Giuliani visited the White House on Dec. 13, shortly after the House Judiciary Committee voted to proceed with articles of impeachment, and he met with Trump at the president’s resort in Florida eight days later.

    Officials’ warnings about Giuliani underscore the concern in the U.S. intelligence community that Russia not only is seeking to reprise the disinformation campaign it waged in 2016, but also may now be aided, unwittingly or otherwise, by individuals close to the president. Those warnings have gained fresh urgency in recent days. The information that Giuliani sought in Ukraine is similar to what is contained in emails and other correspondence published this week by the New York Post, which the paper said came from the laptop of Hunter Biden and were provided by Giuliani and Stephen K. Bannon, Trump’s former top political adviser at the White House.

    The Washington Post was unable to verify the authenticity of the alleged communications, which concern Hunter Biden’s business dealings in Ukraine and China.

    The former officials said Giuliani was not a target of U.S. surveillance while in Ukraine but was dealing with suspected Russian assets who were, leading to the capture of some of his communications.

    Giuliani was interested in acquiring information from his foreign contacts about Burisma, the Ukrainian energy company where Hunter Biden held a board seat, as well as Biden’s activities in Ukraine, China and Romania, two former officials said. Giuliani’s eagerness was so pronounced “that everybody [in the intelligence community who knew about it] was talking about how hard it was going to be to try to get him to stop, to take seriously the idea that he was being used as a conduit for misinformation,” one former official said.

    Earlier in 2019, U.S. intelligence also had warned in written materials sent to the White House that Giuliani, in his drive for information about the Bidens, was communicating with Russian assets.

    Edited From: “White House Was Warned Guiliani Was A Target Of Russian Intelligence Operation To Feed Misinformation To Trump”

    The Washington Post, 10/15/20

    1. Again, refer to my reply to your earlier comment. This article from the WashPo is just more of the same – a semblance of truths and facts, re-organized to peddle propaganda. Change your news sources, if you are at all interested in REAL journalism, that is INVESTIGATIVE journalism which provides LINKS to original sources, sources which provide verifiable factual evidence. The WashPo is owned by an Oligarch, Jeff Bezoz. CNN is owned by a Hollywood mogul and the NYT is owned by a Mexican drug lord. NONE of them are reliable sources. NONE. They cover for the very criminals whose money streams from organized crime President Trump has by the balls and is squeezing. They are all but squealing in pain as he one deft stroke after another reins in their international rings of crime from which they derive their incomes.

      What do you really think multi-culturalism is all about? Propaganda to persuade the West to open its borders to mass-immigration and accept cultures we would never previously dreamt of allowing to become resident citizens. The focus was,for some strange reason on Islamic nations. A reason for that too. Previously, our Immigration Policies were focused on immigrants from nations of like values, with like moral principles from fundamentally similar cultures. These nefarious policies have brought nothing but strife, crime, debt, cultural upheaval, division and destruction to the West. Think about this now – THEY ARE GLOBAL POLICIES. How come? The oligarchic globalists are in control of left-wing political parties’ platforms is why.

      Just as these policies are global, so too are political correctness and Identity Politics, feminism, genderisms, LGBQT rights, equal but separate, racial separatism, but disguised as racial victimhood, on and on and if you check the Marxist Manifesto so too was the sexual revolution of the 1960s of free love, sex outside marriage suddenly made culturally acceptable, then babies outside marriage, then the inevitable – an argument to accept abortion. It is all scripted, all planned and all deliberate, part of the Marxist manifesto to “demoralize” the Western culture. Many scholars have verified it.

      Putting your politic, stubbornly before your family’s welfare and wellbeing, putting your politic before your flag and nation is also a large part of it – a culture of hatred, of disrespect, ashamed of your nation and flag, shaming nationalism, ashamed to be white, etc. etc. Don’t be fooled, it is all Marxist social engineering. If you don’t believe me, just ask ex-KGB Agents who have defected to the West, who have done speaking tours trying to warn Westerners that these things they were instructed to carry out against nations via infiltration – via infiltrating institutions, infiltrating the establishment, the established media, the bureaucracy and the political class, particularly the halls of academia and learning, Universities and Departments of Education and re-writing curricula and syllabi. Just Google Yuri Bezmenov, an ex-KGB Agent who did speaking tours in the 1970s and 1980s across the West after he defected. He reveals the four point plan to bring down the West. His videos are still on YouTube.

      1. Dingles, you’re replying to a DNC troll who is incapable of thinking for himself, was very poorly raised, and does nothing but cut and paste non-sequiturial gibberish from propaganda rags like the Washington Post.

        IOW, it is a complete waste of time.

  2. Nancy Pelosi is nutz.

    “Everyone Has Gone Crazy in Washington
    The Pelosi interview and the interrogation of Judge Barrett, who will bring a little sanity to the capital.

    By Peggy Noonan, WSJ

    Mrs. Pelosi went from zero to 60 in a nanosecond: “What I say to you is I don’t know why you’re always an apologist, and many of your colleagues, apologists for the Republican position.” “Do you realize” the GOP bill is inadequate, she demanded. “Do you have any idea . . .?”

    What about Democrats who want a deal? “They have no idea of the particulars. They have no idea of what the language is here. . . . You’re the apologist for Obama. Excuse me. God forbid. Thank God for Barack Obama.”

    Mr. Blitzer said he wasn’t an apologist. Why not just call the president and make a deal? “What makes me amused, if it weren’t so sad, is how you all think that you know more about the suffering of the American people than those of us who are elected by them to represent them at the table.”

    Is this all about keeping the president from claiming credit? No, Mrs. Pelosi said, “he’s not that important.” “You really don’t know what you’re talking about.” “Do a service to the issue and have some level of respect for the people who have worked on these issues.”

    Twice Mr. Blitzer insisted, “I have only the greatest respect for you.” But, he said, Americans need the money. Mrs. Pelosi: “And you don’t care how it’s spent.” “You don’t even know how it’s spent.” “May I finish, please?” “Have a little respect for the fact that we know something about these subjects.”

    Uuuufff! Subject huh?

    I respect all of you, Mr. Blitzer said. Mrs. Pelosi: “You’ve been on a jag defending the administration all this time with no knowledge of the difference between our two bills.”

    Mr. Blitzer: “We will leave it on that note.”

    Mrs. Pelosi: “No, we will leave it on the note that you are not right on this, Wolf.”

    He said it’s not about him but people in food lines. Mrs. Pelosi: “And we represent them. And we represent them. And we represent them. And we represent them. We know them. We represent them and we know them. We know them. We represent them.” “Thank you for your sensitivity to our constituents’ needs.”

    “I am sensitive to them because I see them on the street begging for food,” Mr. Blitzer said.

    Mrs. Pelosi: “Have you fed them? We feed them.”

    It was bonkers. To watch was to witness, uncomfortably, the defensive aggression of an official who goes through life each day not being challenged nearly enough.

    https://www.wsj.com/articles/everyone-has-gone-crazy-in-washington-11602806459

  3. The money quote from Peggy Noonan, on Senate Democrats questioning ABC:

    From Mazie Hirono of Hawaii: “Since you became a legal adult, have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature?” No, Judge Barrett said. Ms. Hirono says she asks this of all nominees, but it would have been nice if she’d said it with a hint of doubt.

    Sen. Sheldon Whitehouse delivered a Rachel Maddow-style monologue on “dark money.” His data board linking “phony front groups” was wonderfully John Nash-like. The not-funny part, the sadness of it, actually, is that you could do a mirror-image chart of Democratic activism and money surrounding court nominees, and it would have been a public service if he had.

    I don’t know Judge Barrett’s deeper thoughts on the Second Amendment, but by the end of the hearings I was hoping she’d pull out a gun.

    “Everyone Has Gone Crazy in Washington“
    WSJ

  4. Ukraine’s Corruption As Reported By Foreign Policy Magazine In February of 2016

    Over $12 billion disappears from Ukraine’s budget every year, and global graft watchdog Transparency International ranks the country as Europe’s most corrupt. Though Ukrainians face demands for petty bribes in all areas of their lives, the worst, grandest corruption is perpetuated by high-level politicians, officials, prosecutors, and oligarchs who operate with utter impunity. Recently, a staggering $1.8 billion in aid from the International Monetary Fund disappeared offshore thanks to the efforts of a single oligarch — and he has never been held accountable. The Euromaidan revolution that deposed the venal regime of ex-President Viktor Yanukovych and promised European-style governance is now nearly two years in the past. Ukraine must, at long last, find a way to tackle this endemic problem before it’s too late.

    While Ukraine’s vibrant civil society continues to demand that Kiev confront corruption, old guard officials from both the government and parliament continue to fight change every step of the way. What’s to be done? Surprisingly, the most useful model for Ukraine could turn out to be the small and distant Central American country of Guatemala.

    Faced with its own endemic graft, Guatemala decided to sacrifice a portion of its sovereignty, outsourcing its fight against corruption to a hybrid international/domestic body called the International Commission Against Impunity in Guatemala (CICIG). Doing the same would surely be a difficult pill for Kiev to swallow, but milder measures simply haven’t worked. It’s a radical step for Ukraine’s feuding politicians to take — but the fate of their country depends on it.It’s a radical step for Ukraine’s feuding politicians to take — but the fate of their country depends on it.

    CICIG was created in 2006 under an agreement between Guatemala and the United Nations. It was established as an independent investigative agency to target powerful criminal networks who were running amok in the aftermath of the country’s long civil war. While CICIG operates under Guatemalan law in the Guatemalan courts, institutionally it stands apart from the rest of Guatemala’s government. Crucially, CICIG is funded entirely by voluntary contributions by foreign countries — principally the United States — with the money administered by a trust fund created by the United Nations. As a result, its operating costs aren’t dependent on the fortunes of Guatemala’s economy.

    Following Guatemala’s example may be the only hope Ukraine’s immensely unpopular president Petro Poroshenko has of saving his political skin.Following Guatemala’s example may be the only hope Ukraine’s immensely unpopular president Petro Poroshenko has of saving his political skin. But CICIG does have a number of shortcomings. To make a genuine dent in corruption, Ukraine needs an enhanced version that would preserve CICIG’s key innovation — its status as a hybrid domestic and international body — while making several important improvements.

    Needless to say, Ukrainian politicians, too, tend to block anti-corruption legislation by proposing endless changes or inserting anti-reform clauses into unrelated laws — so Ukraine would undoubtedly face the same problem. To ensure that the Ukrainian version of the agency doesn’t become a political football, it should begin with a minimum mandate of five years that would be extended automatically, unless it were explicitly ended through legislation.

    Second, funding CICIG has been a constant challenge. According to ex-CICIG head Castresana, much of his time while running the agency was spent chasing donations from international donors. To mitigate this problem, the United States and other Western donors should fully fund the first five years of Ukraine’s version in advance. CICIG’s current budget is $12 million year, and since Ukraine’s population is three times Guatemala’s, $200 million should suffice for the first five-year period.

    This may sound like a lot, but in the context of current donor support for Ukraine, it’s a drop in the bucket. U.S. Vice President Joe Biden has just committed $190 million to assist Ukraine in its fight against corruption. More broadly, the International Monetary Fund and Western donors have already spent tens of billions of dollars propping up Ukraine. Since reforming the country without fundamentally addressing corruption won’t succeed, the comparably small amount required to fund a Ukrainian CICIG should be seen as a hedge on money that has already been spent.

    Finally, for a Ukrainian CICIG to succeed, it must possess two major powers the original does not. CICIG is an investigative agency, but holds no prosecutorial powers, forcing it to rely on the regular judicial system to secure convictions. This would be a huge problem in Ukraine, since the General Prosecutor’s Office is widely considered to be one of its most corrupt institutions. According to Yegor Sobolev, who heads the anti-corruption committee in parliament, the chief prosecutor — close Poroshenko ally Victor Shokin — has refused to pursue any of the hundreds of serious corruption cases Sobolev’s committee has brought him. Despite numerous calls for Shokin’s dismissal, Sobolev alleges that he remains in place because he protects the corrupt schemes that lead to the president. To avoid relying on someone like Shokin, the Ukrainian CICIG needs to be able to prosecute its own cases, in addition to investigating them.

    It must also be allowed to work completely outside of Ukraine’s regular judicial system, since Ukraine’s judges are also corrupt to the core. The interior minister has even suggested shutting down the country’s courts for three months while an entirely new judicial system is built from scratch. Though such a drastic scheme is unlikely, it indicates why a Ukrainian CICIG would need its own judges and prosecutors — something former CICIG director Francisco Dall’Anese pined for as well.

    Is it feasible for such a scheme to work in Ukraine? Institutionally, the pieces already exist.Is it feasible for such a scheme to work in Ukraine? Institutionally, the pieces already exist. Ukraine’s National Anti-Corruption Bureau (NAB), which reformers consider the “point of the spear” in the war against graft, recently hired its first 70 investigators and detectives out of a planned 500. The NAB could serve as the nucleus for a Ukrainian CICIG.

    Ukraine also recently created a special anti-corruption office within the General Prosecutor’s Office, leading to worries that the new anti-corruption prosecutor risks being “eaten by the system.” Placing this position in the Ukrainian CICIG instead would mitigate this risk while also providing the agency with the in-house prosecutors it needs.

    The key question is whether Ukraine’s politicians have the political will to outsource such sensitive government responsibilities — especially if they fear becoming targets of investigations. But Ukrainian reformers and their Western allies are not without leverage. Sobolev already favors international involvement in Ukraine’s war on graft, and Kiev’s dependence on Western aid plus Ukrainian society’s demand that the government start a real fight against corruption could lend additional weight to the proposal.

    Ukraine’s political class understands that the country’s mood is darkening.Ukraine’s political class understands that the country’s mood is darkening. Only seven percent of Ukrainians believe the current strategy for fighting corruption is yielding results. Murmurs of a possible third Maidan are growing louder, and extremist groups such as Right Sector vow “an execution in some dark vault” for Poroshenko and his team in the event of a coup. The could compel Ukraine’s politicians to take radical steps that would be unimaginable in less-tense circumstances. Just to be sure, though, international donors should use the tremendous financial leverage they hold over Ukraine by making further financial aid contingent on Kiev establishing a Ukrainian version of CICIG.

    Ukraine needs to treat the war against corruption as seriously as it does its conflict with Russia. It is no less existential a threat — and international help is no less necessary to win it.

    Edited From: “Why Ukraine Must Outsource Its Fight Against Corruption”

    Foreign Policy Magazine, Feb 1, 2016

    1. You waste ink on things you don’t understand, with a much-gilded influence from sources protecting the shady and the guilty. The Foreign Policy Magazine is heavily funded by oligarchic interests, including The Open Society Foundation and Media Matters. Both are institutions founded by George Soros, a clandestine Marxist, who has made a living from overthrowing national governments, just as he is influential right now in the current attempt to overthrow the Trump Government.

      Any kind of confluence of power vested in the United Nations to “solve” any national or global problem of law and order demonstrates a century of failed history. To be equally distrusted are the many Institutions, commonly know as “Foundations”, which tout “charity” and “philanthropy” – a mere front, a cover to conceal nefarious influence peddling and money laundering. Even the now corrupt ICC – International Criminal Court – has become engaged in a politic to take down America. The only way to cut through the smoke and mirrors is to follow the money. If you don’t understand by now who controls the United Nations and its nefarious Agenda, you never will.

      It requires a knowledge of the history of who founded the original model, the failed League of Nations and why it failed, inextricable from the assassination of the entire Romanov family of Czar Nicholas II. The funders of the Bolshevik Revolution are the devil in the woodpile, then and now – their dynastic family influence and descendants, who have never relinquished the reins of power, the very criminals pulling the very strings which you laud and applaud. What the Foreign Policy Magazine article claims is bollocks. All propaganda, a shocking veil of deception.

      You write

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