Wednesday brought an end to the formal questioning of Amy Coney Barrett, though the Senate Judiciary Committee’s process continued through Thursday with witness testimony. That gave senators another chance at the lighted stage.
Democratic Sen. Sheldon Whitehouse remained a constant, singing verses of the same “dark money” tune on Thursday as he did throughout the hearing process and claiming that President Trump and Senate Republicans don’t really hold the levers, but that secret lobbyists do. All of it has been an extension of Barrett’s confirmation hearings three years ago, when she was up for the 7th Circuit Court of Appeals and Whitehouse offered the same theory.
“All of the last three [Supreme Court] nominations have been characterized by significant and disturbing procedural anomalies,” Whitehouse said on Thursday. “All three: the Garland to Gorsuch episode, the Kavanaugh confirmation, and now this one. There is a commonality to that that is very disturbing, and that suggests the presence of outside forces and interests that are driving these conspicuous, disturbing anomalies.”
Whitehouse has surmised that the concurrent interests of congressional Republicans and the Trump administration to get rid of the Affordable Care Act, along with the pending Supreme Court ACA case and Barrett’s previous criticisms of Chief Justice John Roberts’s logic in ACA cases — and most importantly, the existence of anti-ACA lobbying interests — all explain her quick nomination to the court.
More than that, as Whitehouse said on Tuesday, “There is a lot of hard-to-explain hypocrisy and rush taking place right now. And my experience in politics is that when you find hypocrisy in the daylight, look for power in the shadows.” He called out Republicans like committee Chairman Lindsey Graham, who previously held the position that a justice should not be confirmed in an election year, or some version of it, but now don’t.
One more quote from Thursday: The Founding Fathers did not intend “that big sneaky interests would hide behind phony front groups and use secret money to get their way,” Whitehouse said, which is fair. Is there any reason to believe that dark money lobbying groups are paying Republicans to throw out their 2016 opinions and support Barrett? Politicians don’t need money to become hypocrites, they just need circumstances to change. As Noah Rothman of Commentary magazine put it recently, hypocrisy is the water in which they swim.
Republicans and conservatives generally recognize the judiciary’s momentous power. Deciding which judges sit on the courts has become a growing conservative priority because the judiciary, and especially the Supreme Court, continues to offer the last word on the most society-altering constitutional questions. They want a say in it all.
It’s also election season. A bunch of Senate Republicans are in reelection races, some of them tough races. Support for a Republican-nominated justice has monumental reelection implications. And most importantly, Republicans have the constitutional authority to fill the seat. There’s nothing even remotely illegal about pushing for a quick nomination, nor conspicuous, considering the electoral stakes. They have the power to do it. In January, they might well not.
Oddly, Whitehouse himself agreed that is a motivating factor. “I do want to suggest to colleagues that the rule of ‘because we can,’ which is the rule that’s being applied today, is one that leads away from a lot of the traditions and comities and values that the Senate has long embodied,” he said on Thursday, before heading back down the dark money trail. “Because we can,” frankly, is at least part of the Republican justification for moving forward with Barrett, or at least the mechanism by which they get it done.
There’s a principle in philosophy known as Ockham’s Razor, made famous by the medieval English philosopher William of Ockham. It “gives precedence to simplicity: of two competing theories, the simpler explanation of an entity is to be preferred.” It’s a bit of a working-class use of the principle, but if Whitehouse would look for the self-evident explanation, the one right in front of him, he would avoid the whole dark money tizzy.
