Barrett and the process

What are we to make of the confirmation hearings on Judge Amy Coney Barrett? How do we judge the process?

Judge Barrett used the word “excruciating” to describe the nomination process and asked, “what sane person” would subject himself or herself to it. Surely we are close to the point at which sane and qualified people say: “No thanks.”

Judge Barrett went on to say that she and her husband had real reservations about accepting the nomination, for they knew that their private lives, and even the lives of their children, would be subjected to extreme scrutiny and criticism and their faith would be caricatured. And they were right.

Judge Barrett accepted the appointment, she said, because she wanted to serve the country and, presumably, because she thinks she has something to contribute to the court — originalism as applied by her.

One need not be a partisan to see that the process is excruciating, even for a person as organized and confident as Judge Barrett. Why must this be so?

Why was the questioning by the senators so free of real questioning and so laden with pompous and condescending speeches? Why was the questioning so heavy with suspicion and accusation?

The tone of the questioning was: We know that you are guilty of something. One senator, for example, asked the judge if she had ever committed an assault.

Will every nominee now be compelled to say that he or she did not stop beating his or her spouse because he or she never did abuse loved ones? The assumption of the questioning is: We know that, at a minimum, you are guilty of bad faith.

The judge says she has no policy or political agenda and that she will follow the law and not her own personal views. But many senators have made it very clear they do not believe her.

This is the modern notion of a fair hearing: Go ahead and speak, but we will not listen or believe you.

Therefore, her critics tell us, Judge Barrett should withdraw or at least recuse herself from cases having to do with Obamacare or a contested presidential election.

Oh, and we know she will also roll back high court decisions on privacy, including the right to abortion. We know no such thing.

It is not the length of the hearings, or the many speeches and the many repetitions, that makes the hearings truly excruciating. It is the assumption of bad faith.

A nominee like Judge Barrett must be tested not only for endurance, but also for her ability to absorb and deflect a fundamental insult: You are not the honest judge you seek to be, calling balls and strikes. You are a phony, a right-wing ideologue in mufti.

Or maybe something worse, a tool or mouthpiece who does not know it. Using the assumption of bad faith as a moral foundation for the confirmation process makes it not only excruciating, but also diminishing, even tawdry.

We are a long way from a Senate Judiciary Committee of dignity and deference.

We are a long way from a moment like the one during Ruth Bader Ginsburg’s confirmation hearings when conservative Republican Orrin Hatch told then-judge Ginsburg: “I admire you.”

But we could get back to a serious process, based on goodwill and the probing of different judicial philosophies, if we wanted to.

We used to do better. We can and must do better, again.