The Barrett Boycott: Democrats Struggle To Get An Empty Sack To Stand Up

I recently wrote about how the Barrett confirmation hearing is proof that Benjamin Franklin was right when he wrote that “it is hard for an empty sack to stand upright.” Now that analogy is becoming reality as Democrats plan to leave actual empty seats in today’s hearing to vote on the nomination. It is all an effort to convince Democrats voters that the senators are really angry over the nomination and fighting like the dickens to stop it. It is, of course, pure theater with no real impact on the nomination but voters seem to demand little more from politicians today than visceral distractions.

The Committee rules do stipulate at least two members from the opposing party must be present for a quorum. However, committees have proceeded in the past with a majority and the Committee could simply change the rules. All sides will then be satisfied.  The Republicans will get their vote and the Democrats will get their show — and the voters will get little beyond the same low-grade performance art from “the world’s most deliberative body.”

The boycott comes after Democratic senators, and particularly Sen. Dianne Feinstein, faced rising criticism over their civility during the Barrett nomination.  Democratic voters wanted a professional wrestling match with pile drivers and chair slams.  Even though they know it is fake, they wanted the senators to at least pretend that they were trying to hurt each other. Instead, they watched a largely civil and often friendly exchange between senators. It was entirely out of sync with the demands of an age of rage.

The final outrage apparently came with the hug that Feinstein gave Chairman Lindsey Graham at the end of the hearing after saying that this was “the best set of hearings that I’ve participated in.” No hug has been so lethal since Sherlock Holmes embraced Professor Moriarty before their plunge over the falls of Reichenbach. The display of collegiality sent many liberals into immediate apoplexia with some demanding that Feinstein step down as ranking member. The president of the pro-choice group NARAL, Ilyse Hogue, declared the gesture as “wildly out of step with the American people. As such, we believe the committee needs new leadership.”  It was certainly “wildly out of step” with the current American politics which demands nothing short of unhinged  and irrational rage.

In an astonishing move, Minority Leader Chuck Schumer went out of his way to demean Feinstein and publicly say that he gave her a stern talking to. Other colleagues have notably failed to come to her defense — leaving her twisting in the wind rather than risk the ire of Democratic base by supporting their long-time colleague.

The Democrats are reportedly planning to bring back the pictures of people who will be victimized by Barrett if she votes against the Affordable Care Act (ACA) in a case set for a November 10th argument.  I have previously written how unfair and unprecedented this display has been for a confirmation hearing. Not only are Democrats now basing their confirmation votes on the expected vote of a nominee in a pending case, but they are misleading the public on the actual case.  As I previously discussed, senators have been open about voting against Barrett unless she assures them that she will vote to preserve the Act. 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.  He and Justice Brett Kavanaugh are viewed as likely votes to sever. Even if the ACA were struck down however both parties are committed to the continued protection of pre-existing conditions.

None of that matters. The Democrats continue to parade these giant pictures that are designed to portray Barrett like some judicial serial killer surrounded by her victims. Now, they will not even be in the room. The pictures will be all that remains on the Democratic side, a fitting symbol of a now literal empty-sack strategy.


79 thoughts on “The Barrett Boycott: Democrats Struggle To Get An Empty Sack To Stand Up”

  1. A Judge Story Turley Never Mentioned

    Man Accused Of Leaving Death Threat On Judge Emmett Sullivan’s Voice Mail

    A New York man accused of threatening the judge overseeing the prosecution of former Trump national security adviser Michael Flynn will not be released from jail before trial, a federal judge ruled on Thursday.

    Frank Caporusso, 52, pleaded not guilty on Tuesday to one count of threatening to assault or murder a federal judge in order to interfere with his official duties, and one count of making an interstate threat in connection with a voicemail left earlier this year, and U.S. Magistrate Judge Michael Harvey ruled on Thursday against Caporusso’s petition for pretrial release.

    Documents unsealed by the court did not identify the target of Caporusso’s alleged threat, but reports named U.S. District Court Judge Emmett Sullivan as the recipient of the voicemail.

    In an arraignment hearing on Tuesday afternoon, Assistant U.S. Attorney Rachel Fletcher appeared to confirm as much, disclosing under pressure from Harvey that the “Flynn matter” was in front of the judge who received the threat.

    At around 8:30 p.m. on May 14, prosecutors say, Caporusso called the judge’s chamber and left a roughly 30-second, expletive-laden voicemail.

    “You will not be safe,” the voicemail said. “A hot piece of lead will cut through your skull. You bastard. You will be killed, and I don’t give a f–k who you are. Back out of this bulls–t before it’s too late, or we’ll start cutting down your staff.”

    According to court filings, the anonymous voicemail ended by saying: “This is not a threat. This is a promise.”

    Though the voicemail came from an unknown sender and without caller ID, prosecutors obtained phone records from AT&T that show a number registered to Caporusso since 2003 placed a call to the judge’s chambers at the same time and lasting roughly the same length as the voicemail.

    A day earlier, Sullivan announced that he had appointed a former federal judge in New York to argue against the government’s unusual bid to dismiss the case against Flynn, an ally of President Donald Trump. Flynn pleaded guilty in December 2017 to lying to FBI agents about whether he discussed U.S. sanctions on Russia with its ambassador prior to Trump’s inauguration.

    Sullivan also said he was seeking a recommendation on whether to charge Flynn with perjury for recanting on his admission of guilt.

    A defense attorney for Caporusso, David Benowitz, argued earlier this week that his client should be released ahead of his trial, noting that the government had not uncovered any further plot or plan to threaten the judge or his staff in the government’s five-month investigation.

    Harvey agreed that Caporusso had demonstrated he was not at serious risk of flight, but that the severity of the crimes Caporusso is accused of — as well as the lack of capability to monitor his phone and internet usage while on release — outweighed those considerations.

    The judge cited evidence provided by the government that Caporusso had sought to reach the judge’s chambers multiple times, even after the voicemail function for the judge in question had been turned off, and noted that the threatening voicemail also targeted the judge’s staff.

    Caporusso faces up to 15 years in prison if convicted on both counts.

    The caller, he said, “does not sound unhinged, out of his mind or intoxicated,” and “confirms his own seriousness” at the end of the voicemail, and took steps to mask his identity — ruling out what friends of Caporusso surmised in letters to the judge must have been a momentary lapse in judgment.

    Edited From: “Man Accussed Of Death Threat Against Flynn Judge Is Denied Release Before Trial”

    Politico, 10/22/20

  2. It is my understanding that strict originalists, who applies the law as it is written, should arrive at the same conclusion, whether they are Republican, Democrat, Socialist, Communist, Pro Choice, Pro Life, Christian, Muslim, Jewish, Buddhist, Atheist, or Agnostic.

    It is the only method that is supposed to excise one’s personal beliefs, and instead be the most just.

    The legislative branch is to make the law. Not the judicial branch.

    The Democrats’ howling rage that having originalists on the Bench would undo all their plans is telling.

  3. How can anyone believe the Democrat Party is the party of conscience, tolerance, and kindness?

    When Ellen Degeneres laughed with George Bush, she was nearly run over by the backlash. (Luckily, Michelle Obama has Teflon, as she is friends with him, too.) Now Feinstein is in danger of ruination for hugging Lindsey Graham.

    The Democrats have become rather infamous for attacking conservatives, as well as anyone who is nice to them.

    Yet people say they vote Democrat because they vote their conscience.

    Well, their conscience is broken.

  4. Now This News: In a violation of committee rules, Senate Judiciary Republicans have voted to advance the Supreme Court nomination of Judge Amy Coney Barrett, even though Democrats say they denied the committee a quorum by boycotting the vote.

    1. Also in the news, Democrats boycott Amy Coney Barrett vote. WTH? Childish. These Senators are acting like babies. Maybe they should threaten to “hold their breath” until they get what they want. Sheesh, what a bunch of crybabies. I have lost all respect for them. Childish antics by what are supposed to be deliberative representatives of the people. Better call the wambulence….

  5. Turley speaks of “unfair and unprecedented” in describing Democrats boycotting the sham nomination of Amy Covid Barrett. Is he ever going to be sick of carrying water for the Republicans and Trump? What about Merrick Garland being denied even a hearing? He was nominated by a President who didn’t cheat his way into the White House, and who won, legally, twice. Most Americans do not want a SCOTUS justice appointed within days of a presidential election, one in which the incumbent who nominated the potential judge has been impeached, who has never captured 50% approval of the American people, and will be voted on by multiple Senators who are likely going to be lame ducks. Her views are extreme, and she’s being shoved onto the Court in a desperate attempt for Trump to try to overturn the likely result of the election.

    No, Turley, it’s fully proper for the American people to be shown exactly what Amy Covid Barrett is likely to do, based on her writings and speeches she has given. She was the artful dodger when questioned by Democrats on the judicial committee, but her positions are well-known.

    Turley talks of Republicans being committed to protections for pre-existing conditions. Well, where is the Republican plan? We’ve been waiting 4 years. Where is it? With the ACA, Americans HAVE protections for pre-existing conditions, of which COVID, mishandled by Trump, will be one of them. The long-term effects of COVID are unknown, but many victims have ongoing symptoms. The only thing Republicans have shown a commitment to is taking away the ACA from Americans, and this couldn’t have come at a worse time. Republicans in the Senate have filed 70 BILLS to strike down the ACA. They have nothing to offer to replace it. Americans overwhelmingly support the ACA. That’s why pointing out, in graphic form, the truth about what Covid-Barrett is going to do is very appropriate.

    Come on, Turley, you know where Covid-Barrett stands on Roe, on the ACA, and on LGBTQ rights, and you also know that’s why she was nominated, and that’s why her confirmation is being shoved through right now, less than 2 weeks before an election. Stop playing games, and stop trying to normalize Trump, the Republicans, and Covid-Barrett. She is being used as a political pawn, and she knows it.

  6. This is ridiculous. Of course the Ds will oppose ACB based on what they think she will vote for, And the Rs nominated her and will vote for her also because of what they think she will vote for. It is just stupid to pretend that this is somehow wrong and to pretend that Justices “rule on the law and not their personal opinions”

    1. Nope….sorry, Covid-Barrett doesn’t get to use initials to refer to her. That privilege belongs to Ruth Bader Ginsberg, a worthy woman, not this partisan hack. Covid-Barrett has written about how Roe can get reversed in practical terms without actually striking it down, by approving so many roadblocks to encumber this right that it amounts to the same as reversal. She, along with Roberts and Kavanaugh, contributed to the briefs in Bush v. Gore, which resulted in Gore, who won the popular vote, being denied the Presidency that the majority of Americans voted for. She has written about how to overturn the ACA. She was on the board of a radical-Christian school that forbade children of LGBTQ parents to attend, and forbade LGBTQ teachers. She is out of step with the values and beliefs of most Americans. She is not a worthy woman to serve on the SCOTUS. She should work in a religious job. The SCOTUS is not the place to force others to comply with your religious beliefs,

      1. RBG was as much of a partisan hack as most on the SC. The Lib SCJ simply rule as they want things to be socially. If you can not determine that you are close to a cyclops status. Just look at her decisions and that is ascertainable. She told the Egyptians and other countries to not base their newly drawn Constitutions based on the US one. CB is more qualified to sit on that court than most. If she rules on the Law as is in the Constitution, that is the requirement. John Roberts has actually changed words You remember changing the word Penalty to a Tax? That tax was actually paid by many US tax payers until DT had it rescinded and rightly so. A number of rural hospitals in Ga have virtually closed down as they could not work in the OBC framework. The Dems wanted the OBC Act to fail where they could then ride in as white knights and give US a Single pay Federally controlled Healthcare plan. Thank goodness that is being denied temporarily until the Democratic Socialists take control again. We will rue that day. First Amendment says what about Congress shall Make No Law? Yet Roberts pretends that language does not exists. Where does it read in the US Constitution or Bill of Rights one can just have recreational sex, make no provisions to utilize birth control, and hey, go get an abortion. Also, it is not the Federal Taxpayers place to pay for your-their birth control factors. I will jolt your ass with the fact this country was founded on Christian Principles and factors, morals, etc. Innately LGBTQ was judged for what it is. I don’t really care what a gay person does as long as they stayed in the closet and did their thing. They wanted partner status so they could pass property as a married couple did. Hell, just draw a will. They were given a crack in the door (no pun intended) and then they shove the door open with their demands just as muslims are doing to implement their Shira law in America. Shira law is anti- US Constitution. well. Now you atheists et al want to move the goal posts.

  7.  . .  and don’t think for one micro-second that if the ‘ shoe was on the other foot ‘ the pious Democrats wouldn’t be ‘ ramming through ‘ their candidate. Perhaps the only difference would be their decorum as being the ‘ winners ‘ ?

    1. Obama nominated a centrist, Garland.

      At the end of June,1992, Biden said “no Justice has ever been confirmed in September or October of an election year–the sort of timing which has become standard in the modern confirmation process. Indeed, in American history, the only attempt to push through a September or October confirmation was the failed campaign to approve Abe Fortas’ nomination in 1968. I cannot believe anyone would want to repeat that experience in today’s climate. … if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not — and not — name a nominee until after the November election is completed. … I am sure, Mr. President, after having uttered these words some will criticize such a decision and say it was nothing more than an attempt to save the seat on the Court in the hopes that a Democrat will be permitted to fill it, but that would not be our intention, Mr. President, if that were the course to choose in the Senate to not consider holding hearings until after the election. Instead, it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process. … If the President works with a philosophically differing Senate or he moderates his choices to reflect the divergence, then his nominees deserve consideration and support by the Senate.”

      Trump did not moderate his choice. Barrett is arguably the most conservative of Trump’s 3 nominees. He didn’t wait until after the election.

  8. Nina Totenberg: “Amy Coney Barrett Takes The Crown For Unresponsiveness”

    NPR legal correspondent Nina Totenberg has spent decades covering major shifts in the Supreme Court and breaking major stories about the Court. Watching Judge Amy Coney Barrett’s Senate confirmation hearings, Totenberg was struck by the nominee’s reticence.

    “There was almost nothing she was willing to say about anything,” Totenberg says. “Amy Coney Barrett takes the crown for unresponsiveness.”

    Now, as the Senate prepares to vote on Barrett’s confirmation next week, Totenberg anticipates a fundamental shift in the Supreme Court’s outlook.

    “With the ascension of what is likely to be Justice Barrett, I think we’re likely to see a Court that is more conservative than any Court since the 1930s. And it could lead to very profound consequences,” she says.

    “I don’t think [Biden is] a fan of Court-packing or adding justices, but [Franklin] Roosevelt wasn’t a particular fan of it to begin with,” Totenberg says. “It took three years of the Supreme Court striking down essential New Deal legislation at the height of the Depression for him to make his proposal to add justices to the Court.”

    Edited From: “Nina Totenberg On Amy Coney Barrett, Anita Hill And Saying Goodbye To RBG”

    Today’s NPR

    1. Why would anyone care what that hate-filled, biased, TDS afflicted Nina have to say? More so, why would anyone with a functioning brain listen to anything NPR has to say?

      1. lonestarlizard is just our usual troll with yet another name. He monitors these threads 16 hours per day to make absolutely sure he’s the first and last responder to any post.

  9. Good. We don’t need their ugly distorted lens faces stinking up the place. ACB will shine like the star that she is.

  10. The Democrat’s internal polling must look ominous for them to boycott the committee vote. A party that is confident in the upcoming election wouldn’t be concerned to show up and vote no. They would be looking forward to their planned Senate majority, ending the filibuster and packing the court.

  11. Professor Turley

    As expected, a well written post with excellent transitions between competing narratives.

    Now that it’s clear that Judge Barrett will be confirmed and seated on the Court, [and I had no doubt that she would be-her testimony irrespective of partisanship was outstanding] it would be appreciated if you would share with us some scholarly thoughts on a few issues which came up during the hearings.

    President Lincoln did in fact wait until after the 1864 Presidential general election to submit Chief Justice Chase’s nomination to the Senate for confirmation. I realize that there has been a debate about Lincoln’s real intentions regarding that nomination. However, since he could have made a recess appointment when Chief Justice Taney passed away 27 days before the election, is it not reasonable to argue that because the election was so close to the occurrence of the vacancy, Lincoln was concerned in part that filing the vacancy before the election could tip the outcome of the election in his favor, and that he did not want that concern to affect the public perception about the independence of the Court in its decision making?

    At least 10 or more justices were Presidential recess appointees before Taney’s vacancy. Lincoln himself made a recess appointment of Judge David Davis to the Court prior to the general election in 1862, and submitted Judge Davis’ nomination to the Senate for confirmation after the election. So if there was such a need to get Judge Barrett on the bench quickly, would it not have been prudent and less controversial for President Trump to have handled Judge Barrett’s appointment to the Court in the same manner that Lincoln handled Davis’ appointment to the Court?

    There is no magic in fixing the size of the Supreme Court bench to 9 seats. As you know, for 80 years after the ratification of the Constitution, Congress varied the size of the Court from 6 seats to as many as 10 seats before reducing the number of seats to 9 which, as I recall, closely correlated to the number of federal judicial circuits Congress had established at that time.

    The population of the United States has increased two fold since then, and now there are !! federal judicial circuits. Is there not a principled justification for Congress to add two seats to the Court because of the increase in population, and the expansion of the federal judicial circuits?

    That’s it; and, thanks for your consideration.

    1. Past history may bear some relevance to the issue of Justice Barrett;s nomination but the nomination itself is either legal, and within the parameters of legal process, or it’s not. It is unfortunate for the democrats that this opportunity for the president arose when it did, but had the situation been reversed they would be proclaiming it a sign from heaven. This latest stunt of boycotting the vote didn’t quite match their previous performance of kneeling down with the Kente Cloth stoles however. Who choreographs their stuff? They forgot their marbles.


    Donald Trump is an impeached president who never won the Popular Vote. And there is a strong possibility he is about to be swept out by a landslide. The possibility also exists that Republicans are about to lose the Senate.

    So Democrats are right to outraged that a lame duck President and Senate are rushing to confirm a justice who calls herself an ‘originalist’. .We know that term is code for ‘Reliable Republican’. It means Judge Barrett will side with corporate interests over consumers and organized labor.

    1. Anonymous:
      Sorry to say, that you are as sick as the Democrat base these days, that demand no less than blood from their political opponents. Iran’s Mullahs have nothing on you Mr. Anonymous. You have no idea what ACB will, or will not do, as a Justice. What the rest of us know, is that she will do what Justices should do, and that is to strictly interpret the Constitution and the law. Something that runs against the new Socialist Democrats.

      1. Equality, Barrett will not strictly interpret the Constitution based on her comments about the Garland nomination, She claimed the Senate could choose to do nothing about that nomination. Here is the relevant Constitutional language. There is no option for not performing their duty to advise and consent so she made up s..t to fit her politics. the GOP knew what they are getting, and it’s not as strict interpreter of the Constitution but a religious fanatic who will make up s..t to reach political decisions. Yes, she’s not stupid and neither are they.

        “[The president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…”

    2. And there is a strong possibility that you are a TDS afflicted, clueless, Marxist-democrat about to be devastated by Trump’s reelection.

    3. Until all of your possibilities come to fruition, neither the President nor the Senate are lame-duck, with the exception of those who have announced they are leaving.

  13. Boycotting Senate Democrats should be penalized with a 50% annual salary cut. And charged with contempt, negligence, dereliction of duties & responsibilities.

    Kamala Harris, the ring leader, stated on Twitter:

    My Democratic Senate colleagues and I boycotted the Supreme Court nominee committee vote today. Let’s be clear: this nomination process is a sham. My Democratic Senate colleagues and I boycotted the Supreme Court nominee committee vote today. Let’s be clear: this nomination process is a sham.

    1. Kamel-ah Harris is a sleep-around-ho who got where she is today by sleeping her way up the political ladder.

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