Absent multiple COVID deaths of Republican Senators in the next few weeks, Amy Coney Barrett will be confirmed for the Supreme Court days before the Nov. 3rd election. Democrats should make the best of it, seize this high-profile stage, and maximize Vice-Presidential candidate Kamala Harris’s seat on the Senate Judiciary Committee, and her keen prosecutorial skills, as the sole Democrat to question Amy Coney Barrett.
It is time for the other 9 Democratic Senators on the Senate Judiciary Committee to take one for team. The 5-minute round-robin format is already a disjointed, grandstanding mess in the social media era. Democrats have a rare opportunity for their Vice-Presidential candidate to prosecute a comprehensive, well-designed rebuke of the conservative agenda. And at least make Republicans regret for a moment their hypocritical nominating process, weeks before the general election.
It is time for Kamala Harris to contrast Amy Coney Barrett and core Democratic beliefs in 2020 – saving the Affordable Care Act, women’s rights, environmental protections, Merrick Garland, and a just economy. Amy Coney Barrett is on the wrong side of these issues. With Kamala we will benefit from follow-up questions and continuity. Kamala can deliver a ten-part dissection, using Amy’s own words, and her core Federal Society, Originalist, Textualist, Conservative, Corporatist views, to make clear for Americans what this election is about.
Here are six reasons why Kamala should go it alone.
A Graceful Out for Ranking Member Diane Feinstein
Senator Diane Feinstein (D-CA) provided conservatives a meme, t-shirt and gift that keeps on giving with her “the dogma lives loudly within you” comment during Amy Coney Barrett’s’ 2017 confirmation hearing for the 7th Circuit Court of Appeals. Better she pronounces “I yield my opening statement time to the next Vice President of the United States, Senator Kamala Harris of California”.
Save Us From Complaints of Bland White Mansplaining
To be clear, many “mansplaining” complaints are bogus, but why welcome them when there is a compelling alternative? Without naming names, some of our least exciting Democrats sit on the Senate Judiciary Committee. Do we want a bunch of older white men asking a mother of 7 about her views on abortion, women’s rights, and health care when we have Kamala Harris? It’s time for Senators Patrick Leahy (D-VT), Dick Durbin (D-IL), Sheldon Whitehouse (D-RI), Christopher Coons (D-DE) and Richard Blumenthal (D-CT) to pronounce, when their turn arrives, “I yield my time to the next Vice President of the United States, Senator Kamala Harris of California”.
The Losing Presidential Candidates Have MSNBC
Senator Amy Klobuchar (D-MN) is practically on the MSNBC payroll as Lawrence O’Donnell’s current fave Senator. Do we need a comparison of Amy’s prosecutorial skills with Kamala’s? Do you remember Spartacus? Senator Cory Booker’s (D-NJ) “This is about the closest I’ll ever have in my life to a Spartacus moment?” Kavanaugh hearing moment. Amy and Cory can pass the baton to Kamala and focus on post-hearing cable news.
Kamala is the Prosecutor
Amy Coney Barrett is the crown jewel, the gold ring, the 6-4 majority prize the Federalist Society, Mitch McConnell and conservative strategists have been working towards for a generation. Conservatives understood their hold on the voting majority was waning and to maintain control and protect their minority-conservative agenda was thru the courts. We need our best prosecuting the case.
It’s More Than the ACA and Abortion
Besides the clear and obvious benefit of an election season spotlight, Kamala can skillfully present Amy Coney Barrett as a proxy for the hypocrisy of originalism and the conservative corporate agenda. There are lots of good ideas about topics for Amy, here are some potential segments to complement the obvious…
Originalism and Supreme Court Nominees – Originalism basically says do not read anything into the Constitution – take it at its word. The Appointment Clause of the Constitutions says “... and [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint”. In interviews preceding the Merrick Garland nomination following Anthony Scalia’s death, Amy Coney Barrett was playing politics, parsing words, and laying the groundwork for the Senate rejection of an Obama appointment. In a CBS Interview she said "I think, in sum, the president has the power to nominate, and the Senate has the power to act or not, and I don't think either one of them can claim that there's a rule governing one way or the other,". Amy does not mention the previous 133 times an elected President had a Supreme Court vacancy, the Senate approved one of their nominees. Following Robert Bork’s rejection, President Reagan nominated Anthony Kennedy, who was approved by a Democratic Senate. Kamala can ask – Does the Constitution say anything about parties of the President and Senate needing to be the same for an appointment? Does it mention election year appointments? Doesn’t it say in plain language, it is the President that nominates and appoints? And if so, doesn’t the Senate running out the clock negate that clearly stated Constitutional power?
Furthermore, did you say "Moreover, Kennedy is a moderate Republican, and he replaced a moderate Republican, Powell. We're talking about Justice Scalia, you know, the staunchest conservative on the court, and we're talking about him being replaced by someone who could dramatically flip the balance of power on the court," "It's not a lateral move." as a rationale to delay the nomination? And if so, isn’t your replacing Ruth Bader Ginsburg even more radical? Will you now be the staunchest conservative on the court?
Originalism and Voting Rights – When it comes to power, there may be no greater issue facing the Supreme Court than voting rights. Kamala Harris, as a black woman, needed two Constitutional amendments to gain the right to vote. Kamala can ask – Amy, does the Constitution say 4 times the right to vote is “not to be denied or abridged”? Can we discuss an originalist definition of “abridged”? My dictionary says to cancel, lessen, diminish, limit, or curtail. Do you agree? Four times to be exact, the Constitution couples denied with abridged. Wouldn’t originalist philosophy dictate judges always err on the side of protecting the right to vote and not some state rule, arbitrary deadline, or poor penmanship mistake? During a pandemic, doesn’t the Constitution demand every effort be made to facilitate voting? Will you protect the sacred right to vote in all cases that come before you?
Originalism and Super-Precedents - In a 2016 paper written with John Copeland Nagle, “Congressional Originalism,” for the University of Pennsylvania Journal of Constitutional Law, Barrett imagined the following “Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education” along with “the constitutionality of the Social Security Administration, paper money, or segregated public schools” as “arguably non-originalist.” Later, she explains many of these issues have become “super precedents”, so ingrained in our society and accepted, their failure to pass originalist muster is no longer relevant. She also suggests a case that comes before the Supreme Court, is not a “super-precedent’ because it would have been rejected downstream. Kamala can ask, as lower courts have been packed with right of center judges, couldn’t a firmly entrenched precedent now reach the Supreme Court via a radical, minority-view judge? And open the door to you overturning super-precedents?
The Punishment for Murder – When arguing a women’s rights to choose, Democrats focus on a woman’s access to safe abortion. And don’t often focus on the legal consequences of abortion as murder. I remember an interview with candidate Trump and Chris Mathews on MSNBC where Donald Trump admitted jail was a possible consequence. Kamala should go there. Kamala can ask, if an 18-year-old knowingly kills another human being and knew what they were doing was against the law, is it a felony? And should a felony result in jail time? And what about someone who abetted that murder?
Our Children, the Constitution and Climate Change - The Constitution does not explicitly mention climate or the environment, but Public Trust Doctrine (PTD) cases are moving forward that argue the Constitution does provide protections. As reported by The Environmental & Natural Resources Law Center University of Oregon School of Law “the seminal Illinois Central case (which held that the PTD prohibited a state legislative grant of a significant portion of Chicago’s harbor to a private company), the U.S. Supreme Court indicated that the PTD has its basis in the reserved powers doctrine.” Kamala can ask Amy Comey Barrett if she is familiar with the “reserved powers doctrine” and does she agree with the Supreme Court’s ruling? And what role the Constitution has in protecting our planet?
The Supreme Court and Corporate Power – In a recent Jacobin article, David Sirota and Walker Bragman focus on a 7th Circuit gig economy workers case where Amy Comey Barrett rejected Grub Hub drivers claim they were protected by a transportation exception to the Federal Arbitration Act and not subject to mandatory arbitration. As noted by University of Wyoming law professor Michael Duff in the article, “Mandatory arbitration under the Federal Arbitration Act is the ‘informal forum’ where the legal claims of ordinary workers and consumers all too often go to die,” said Duff, a former investigator at the National Labor Relations Board. “Barrett’s opinion reflects little policy interest in the fact that by 2024 more than 80 percent of private-sector, nonunion workers may be covered by forced arbitration clauses.” Kamala can ask Amy Comey Barrett about her views on forced arbitration clauses, non-disclosure agreements, and other legal tools used by corporations to suppress workers’ rights.
It will drive Donald Trump Crazy
The most pleasurable reason for Kamala Harris to be the sole Democrat to question Amy Coney Barrett at the Senate Judiciary Committee hearing is simple - the vision of President Trump upstairs in the White House, fuming and tweet-storming “monster, monster, monster” as Kamala Harris takes center stage to make the Democratic case against Amy Coney Barrett, just weeks before the November 3rd election.