Swing, female voters inhabiting the suburbs probably don’t care much about the “doctrine of severability.”
The legal concept of “Stare decisis” (pronounced STAR-ee dee-SIGH-suss) sounds like an exotic social media influencer with an active Instagram account. They may never have heard of seminal Supreme Court opinions referred to on the Senate Judiciary Committee in shorthand as “Heller” or “Obergefell.”
Those key voters may not remember a word from the confirmation hearing of Supreme Court nominee Amy Coney Barrett. But those voters will probably recall the singular image of Barrett holding up a blank, small notepad, demonstrating she was doing this all on the fly. In fact, she had it all together to the point that she didn’t need to jot down notes. Or didn’t have time. She kept all the answers upstairs.
The fact that six of Barrett’s seven children sat attentively behind their mother as senators questioned her about “super precedent,” ObamaCare and if she would rule in an election case involving President Trump impressed senators from both sides of the aisle.
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Sen. Dianne Feinstein, D-Calif., the top Democrat on the Judiciary Committee, marveled at the children’s discipline. The California Democrat asked Barrett if there was a “magic formula” for being a working mother with a demanding job as a law professor and federal judge — and raising seven children.
“It’s improv,” replied Barrett.
Barrett dodged questions about whether it was constitutional for a president to suspend an election and how she may evaluate a looming November Supreme Court case on ObamaCare. But the nominee divulged to senators that she has a special faculty to keep her brood on the straight and narrow.
“I have eyes in the back of my head,” said Barrett.
The children, otherwise motionless for much of the hearing, squirmed.
High-profile sessions like a Supreme Court confirmation hearing are about painting a picture. Curating a narrative.
The general public doesn’t possess the bandwidth to wade into “Plessy” or deep discussions on “legislative intent.” But they do understand overburdened, harried Midwestern mothers, maintaining discipline in her household with an obscured third eye.
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Democrats in the hearing attempted to cast Barrett as an icy, conservative ideologue who would undercut Obamacare or Roe v. Wade as soon as possible. But Republicans on the Judiciary Committee attempted to craft an alternative portrayal: a working mother.
“I appreciate that many times you have probably done this with a child in your arms, on your hip or somewhere in tow,” said Sen. Marsha Blackburn, R-Tenn.
These hearings are like casting a play. Senators on both sides serve simultaneously as playwrights and casting directors. They attempt to project characterizations onto a witness or a nominee. In 2018, Republicans held up Supreme Court Justice Brett Kavanaugh as a father and coach for his daughter’s basketball team. Democrats presented Kavanaugh as a testosterone-fueled teen who swigged beer and was a few ticks short of Bill Cosby.
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The nomination and pending confirmation of Barrett for the high court serve as a closing argument for Republicans just weeks before the election.
Coronavirus is crippling the country. There are deep questions about President Trump’s leadership. Control of the Senate could go either way. Republicans will likely lose seats in the House. As the president’s poll numbers sink, many House and Senate Republicans are mindful of the dead weight that threatens to drag them down, too.
It’s unclear if Barrett’s nomination could buoy struggling Democrats.
In South Carolina, the last part of September and early section of October was all about Democratic Senate nominee Jaime Harrison. Last week and the next two weeks are about Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., and efforts to confirm Barrett.
Granted, this cuts two ways for Graham. Rushing through a conservative nominee like Barrett just before the election probably stokes the conservative base. It might appeal to some female, suburban swing voters who can empathize with Barrett. But the bald politics of the nomination just before the election, coupled with questions about abortion and health care, may turn off those voters, too.
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Sen. Thom Tillis, R-N.C., is a member of the Judiciary Committee. He tested positive for coronavirus but returned to the hearing mid-week with a doctor’s note. Tillis faces a competitive re-election bid against scandal-rocked Democratic nominee Cal Cunningham. Tillis has tried to use his return to the committee as a contrast to Cunningham. Tillis is on the mend health-wise and able to do “the people’s business” on the committee – even if some voters aren’t enamored with the Barrett narrative. But the image of an earnest, working senator is better than the flames Cunningham’s had to douse.
Regardless, this is about Barrett and how Republicans may weave her life story into the confirmation process: A mother raising a houseful of kids. Adopting two children from Haiti. Raising a son with Down Syndrome.
“Do you hate little, warm puppies?” asked Sen. John Kennedy, R-La., of Barrett.
The reply was no. But the nominee did volunteer her home keeps a chinchilla as a pet.
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Barrett featured her kids in her opening statement at her 2017 confirmation hearing to serve on the 7th Circuit Court of Appeals. She introduced them in a near-verbatim fashion when President Trump unveiled Barrett as his Supreme Court nominee at the now infamous Rose Garden ceremony. She reprised similar lines about her family at the start of this confirmation hearing, too.
The tableau works for Barrett. And, it likely works for struggling Republicans hurtling toward Election Day.
It shouldn’t be any surprise that most voters lack familiarity with the intricacies of stare decisis or “Heller.” But confirmation hearings present a teleplay familiarizing voters with the nominee. This is supposed to be about law and jurisprudence.
But it’s not.
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It’s about imagery. It’s hard to get much better than having a successful woman, delivering composed, off-the-cuff riffs with her children sitting behind her. The cameras capture the pageant. Those images say much more than the nominee could ever say while sitting at the witness table.
Republicans have a narrow path on which to confirm Barrett to the Supreme Court before the election. Barring any major hiccups, her confirmation likely comes at the end of the month. It may help Republicans. But GOPers are in a deep hole. The key is that heretofore, Barrett hasn’t hit any potholes, ala Kavanaugh or Supreme Court Justice Clarence Thomas. A confirmation process that spins off the rails like those of Kavanaugh and Thomas is the last thing the president needs along with House and Senate Republicans. The diorama works politically.
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But then there are the polls.
Things aren’t looking good for Republicans in a couple of weeks, up and down the ballot. Democrats are on the move, coming up fast behind Republicans.
Barrett may have the only remedy for that: eyes in the back of her head.
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