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Senators failed to ask Amy Coney Barrett some important questions

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Sen. Sheldon Whitehouse and Amy Coney Barrett (MSNBC)

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David Cay Johnston
David Cay Johnston

After three days of Kabuki theater, a television mini-series produced by the Senate Judiciary Committee, did you learn anything Judge Amy Coney Barrett that she didn’t want you to know?

Really, it’s not hard to frame questions that produce informative answers, including when the response is a dodge. Let me show you, starting here:

Judge Barrett, you testified your judicial philosophy is to follow the law as written. Can you please cite examples of where the law required you to render a decision contrary to your personal beliefs?

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Notice how that is framed. Barrett can’t swat it away, as she did so many questions as hypotheticals. It asked her to speak about the decisions she already rendered.

Judge Barrett, have you contemplated whether in a childbirth gone awry you would sacrifice your own life to save that of your youngest child, leaving your other children sitting behind you motherless, or whether to live so that your children would grow up under your care with one less sibling?

As a relatively new judge, appointed by Donald Trump to the Seventh Circuit Court of Appeals three years ago, Barrett has not written all that many opinions. Were the judge to respond that she has yet to encounter that issue here’s the follow up:

Judge Barrett, have you given thought to how you would deal with that conflict, especially an irresolvable conflict, between your most deeply held beliefs and the law?

Framing Matters

Again, notice the framing. The question is not what you thought but have you thought about a conflict between personal beliefs and the law.

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Were the nominee to say that she had not pondered this—which would be preposterous — then the line of inquiry shifts to how deeply she has thought about the law. If she says she has indeed thought about it the question to ask is, “What did you conclude, if anything?”

Next question:

Judge Barrett, have you talked in your Notre Dame law classes and other forums about resolving conflicts between personal beliefs and Supreme Court rulings your students must work under with when they become lawyers and jurists?

That’s a question Barrett might try to slough off with the “I don’t recall” diversion. To deal with that ask this:

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Well then, Judge Barrett, let’s assume I’m not a senator, but the most serious student in your class and that I hope to become a trial court judge or, like you, an appellate court judge. So, what do I do, professor, when confronted with a wide chasm, or worse a complete contradiction, between the law as decided by our Supreme Court and my beliefs?

Following Your Own Advice?

The goal here is to get her to talk about how she analyzes such conflicts as well as her advice. And if she gives her advice the obvious follow up is short and sweet:

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Would you, Judge Barrett, always take your own advice?

How that question is answered — candidly, philosophically, or evasively — would give senators and the public insight into what is going on behind the smiling mask that Barrett, like all judicial nominees, wears during such hearings.

I could go on with more questions like this but the point I want to make here is that nothing like this emerged from three days of hearings in what is supposed to be the most exclusive deliberative body in the world, the American Senate. Their questions indicate our senators don’t respect that.

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That so many bad questions were asked was unsurprising, but also shocking given that most Judiciary committee members are lawyers. Chuck Grassley of Iowa, a subsidy grabbing Republican, is the Senate’s only pig farmer. The rest of them ought to know how to ask useful questions.

Judiciary Committee members in both parties should ask questions that probe the souls of nominees — simple, direct questions stripped of rhetorical filagree. Their questions should force nominees to instantly choose between dissembling, looking idiotic to other lawyers or telling the truth.

We would be wise to castigate every member of that committee, in person if you attend a political or social event, for making novice lawyers on their first day in a courtroom look good.

There’s one other question I would have asked. It’s based on my own life experience as the father of eight now grown children:

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Awful Choices

Judge Barrett, obstetricians in troubled deliveries sometimes must make an awful choice between saving the life of the mother or the child. How would you weigh that choice?

Again, the framing is how to make a choice, not what choice.

Concise follow-ups would note that each year about 700 American women die in childbirth. So do about 21,000 of roughly 3.8 million infants.

More questions:

Judge Barrett, are laws that restrict the freedom of choices that doctors, the mother, or if incapacitated her spouse, make during troubled labor a proper exercise of the police powers of the state?

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If the doctors conclude that someone will die why should the crude axe of state police power be applied at all?

If there is any role at all for exercising the state’s police power in these tragic situations please articulate it.

Whatever her answer, smart follow up questions should focus on freedom, including the freedom to decide who will die. Framing questions in terms of liberty versus policing powers would be illuminating about the nominee’s thoughts.

Another follow up:

Judge Barrett, have you contemplated whether in a childbirth gone awry you would sacrifice your own life to save that of your youngest child, leaving your other children sitting behind you motherless, or whether to live so that your children would grow up under your care with one less sibling?

If that sounds cruel let me note Barrett chose to use her children as props. She could have had them stay home playing with dolls and footballs.

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Again, notice that the frame is not what would you decide, but have you thought about this. And trust me these are real-world questions that physician and parents must decide, preferably in advance, but all too often in the unexpected moment.

Asking Better Questions Lessons

Here’s a recommendation to make all Congressional hearings less Kabuki theater and more a service to us, the people who own our government.

Every member of Congress, in both parties plus independents, should not ask another question until they have sat through a class, including role-play exercises, on how to frame questions.

Congress already has the perfect expert to teach this — Rep. Katie Porter, Democrat of California.

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The freshman lawmaker, a former University of California Irvine law professor, frames only smart questions during House Financial Services hearings. No matter how witnesses reply, Porter is ready to follow so that we the people learn about the integrity of each witness or lack thereof.

Porter questions are free of flourish. Porter never preens. Instead, her five-minute examinations are packed tightly. Whether in interrogations designed to embarrass a mandarin like Jamie Dimon of Chase Bank or subtle sideways approaches that sneak up on the witness like the velociraptor who surprises the big game hunter in the original Jurassic Park film, she gets revealing responses.

Smart woman. Would that our senators were half as smart in asking questions.

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