Back in September, 2018, it would have been hard to find anyone who would not describe the Brett Kavanaugh Senate hearings disgraceful. What side of the aisle one was on didn’t matter. If you were inclined to believe Christine Blasey Ford, then having the nomination of someone credibly accused of sexual assault moving forward was a disgrace. If you were inclined to take Kavanaugh’s side, then the idea that he would have been subject to intense questioning over a flimsy allegation with such little corroboration was a disgrace. And in either case, no one seriously defends his heated rant against the Clintons as a moment of judicial grace.
There is nothing exotic about Judge Barrett
Watching the Amy Coney Barrett hearings, with the most contentious nomination process of my lifetime, and in the midst of an election both sides routinely cast as an existential crisis point for the nation, I expected something at least as explosive as the prior Kavanaugh hearing. But, as Mitch McConnell would go on to say about Barrett herself, there was nothing exotic about the hearings.
To be sure, the process was something quite unusual, especially following the Garland non-hearings of 2016, but enough digital ink has been spilled over that. Far less attention was paid to the content of the Barrett hearings themselves. And, if Jon Stewart’s assessment of the media holds true, that their primary biases are towards conflict, sensationalism, and laziness, this would explain the lack of coverage over the substance of the hearings.
For anyone looking for some of the commonplace nonsense of a Supreme Court confirmation hearing, Barrett and (even more so) her interlocutors provided enough. There was standard issue political grandstanding. There was election-season special political grandstanding. There was the standard issue bevvy of questions the Senators know the nominee cannot answer, but which allow the questioning Senator to act appalled at this fact.
As in every hearing, the precise details of the unanswerable questions was unique (aside from, of course, the mandatory Roe line). On the third day of hearings, Senator Kamala Harris asked Barrett if Covid-19 was infectious. Barrett said it was. Harris asked if smoking causes cancer. Barret said “I’m not sure exactly where you’re going with this,” before deferring to the cancer warnings found on all packs of cigarettes. Then Harris asked if climate change is real and if it’s threatening the air we breath and water we drink, forgetting (and perhaps channeling Trump for a moment) the difference between climate change and ordinary pollution.
Barret didn’t know exactly where Harris was going, but she knew the kind of place Harris was headed:
“Senator again, I was wondering where you were going with that. You have asked me a series of questions that are completely uncontroversial, like whether COVID-19 is infectious, whether smoking causes cancer, and then trying to analogize that to eliciting an opinion from me that is on a very contentious matter of public debate. And I will not do that. It will not express a view on a matter of public policy, especially one that is politically controversial because that’s inconsistent with the judicial role, as I have explained.”
The first two questions were uncontroversial. To Harris, the third was similarly uncontroversial, but to Barrett it was — not because they necessarily disagree on the science, but because Barrett had to answer in terms of what may be a case or controversy that could come before the Court. Barrett’s answer acknowledged that a case about climate change, pollution, or environmental regulations could come before her in the future. Her response was not in regards to the consensus of scientists, but to the consensus of elected officeholders.
Naturally, the mainstream media made much hay over her answer, glossing over the actual distinction Barrett was making. Conflict, sensationalism, and laziness. But, there was nothing exotic about the exchange.
For those looking for something beyond conflict, sensationalism, and only that which can be most lazily deployed for social media points, the hearings did have something important to offer — a far more optimistic view of American government, at the most improbable of times.
I want to thank Judge Barrett for not interrupting us during your hearing
The humor of the hearings did get a bit of media attention, in particular Senator Ben Sasse’s entirely appropriate and accurate depiction of the Houston Astros as a bunch of miserable cheaters. Getting muc less attention was the retort from Senator Ted Cruz after Sasse’s time expired:
Cruz: “Mr. Chairman, I was tempted to make a parliamentary inquiry if the unjustified broadside from the Senator from Nebraska violates Rule 19 of this body. But I decided not to when I came to the realization that Nebraska lacks a professional baseball team and at times doesn’t always have a winning football team either. And so I view it more as a plea for help than a substantive point. And I will say the remainder of the Senator from Nebraska’s questions and exchange with Judge Barrett, I thought was excellent and a wonderful civic education for all Americans. The scurrilous lies about the Astros, I think should be stricken from the record and forgotten by all.”
Sasse: “Mr. Chairman, I will later be asking unanimous consent to submit to the record a little bit of historical information about the Houston Astros, but we will wait for now. Thank you.”
Graham: “I can’t wait.”
Cruz: “Will you include a photograph of the World Series trophy?”
Sasse: “I think there’s an asterisk hanging over the trophy.”
Graham: “I want to thank Judge Barrett for not interrupting us during your hearing.”
One might be tempted to think that friendly ribbing between members of the same party is at best nothing special and at worst an affront to the dignity of the hearings. But then there was Senator Cory Booker’s day 4 instance that “the people of Texas to know the truth, [Cruz] is a closet vegan.”
In a political climate where Senator Diane Feinstein was met with calls for her resignation for praising committee chairman Mitch Connell for running a successful hearing and hugging him after, where Ellen Degenerous was pilloried for daring to be friends with George W. Bush, where “unfriend me if” has entered into people’s auto-completes after repeatedly posting such messages on Facebook, Cory Booker, a Democratic senator with presidential aspirations, cracking a joke with a Republican senator poised to be the party’s leader in the post-Trump era borders on bravery.
We have the potential, if we all embrace it, to engage each other and make America a stronger, safer place
Had social media jackwagons watched the hearings rather than getting all their information from the three minutes featured by the mainstream media, we would have been met with an avalanche of “Cory Booker might not be racist, but he’s willing to pal around with racists, which is just as bad.”
If anyone bothered to watch the hearings rather than getting all their information from the three minutes featured by the MSM, or in the MSM’s case watching the hearings instead of zoning out and just following the five minutes reported by the wire services, they would have heard McConnell praise Booker for shepherding through the Senate the First Steps Act, a criminal justice reform bill that ultimately drew widespread bipartisan support:
“There would be no First Steps Act if Senator Booker, at a very crucial point in time, decided to find common ground. If they ever write the history of that bill, I’ll attest to the fact that when it was about to fall apart, you kept it together. You kept your eye on the prize. I just wanted to say that.”
It’s the opposite of conflict and sensationalism, and reporting on it requires just a bit of diligence, and as such it’s the opposite of what makes its way onto our political radars.
Perhaps it was also simply not newsworthy. But, if blue checkmarks criticizing Feinstein for a hug, or Alexandria Ocasio-Cortez snapping back over the cost of her Vanity Fair cover photo outfit are newsworthy, then surely a momentary bi-partisan kumbaya could get squeezed into the news cycle.
Or maybe not. Maybe just no one cares, and in the final measure of things, an across-the-aisle attaboy isn’t all that meaningful.
On the other hand, at the end of the hearings, Senators Chris Coons, Booker, and McConnell, spent a good bit of time discussing federal prisons and how routine it is for there to be prisoners who have no business staying locked up. They ultimately reached an agreement in principle to form a pilot program for federal parole.
The Barrett hearings concluded with a bipartisan agreement on an important criminal justice reform measure, and with a bipartisan maskless hug. One of these was news worthy. The other was deemed newsworthy by the people who make those decisions.
There was no public outcry over which story got covered because too few of the public tuned in — a reasonable choice to make given the roughly 30 hour length of the hearings. Nor did any media outlets criticize each other over what to include or omit — they all reach for the same low-hanging most clickable, sharable fruit.
They wanted the exotic, mostly because we’ll click on and view the exotic. What stood out though, or ought to have stood out, is that in the most exotic of political times, the Senate Judiciary Committee demonstrated what a competent, reasonable government might look like in its day to day operations.