If the confirmation hearings for Amy Coney Barrett were a football game, the score would be something like Barrett 43, Democratic senators 0.
But only the score is a fitting comparison. Because in sports you can't you combat the other team with mere blather, or even a "game plan." And in politics, in law, in matters intellectual, you can ultimately only really engage argument and ideas with argument and ideas.
Judge Barrett has a basic argument — originalism. It is the notion that the Constitution (and even a statute) means what its authors and readers thought it meant when it was written, according to the common understanding of the words at the time.
More broadly, Judge Barrett argued for judicial humility — the idea that judges should not be the unacknowledged legislators of the world.
And she had very precise ideas about how to apply these principles.
Her opponents (mainly, not all of them), had "gotcha" questions, fearmongering, sputtering rage and sneering as their weapons.
Judge Barrett, speaking without notes and with crystal clarity and amazing self-control, ran rings around her inquisitors.
I thought of a law professor friend ho told me a few days back: People should relax. Judge Barrett is a serious jurist just as Justice Elena Kagan was when Barack Obama picked her. She has a philosophical approach and will administer the law within the confines of that approach. Her approach is not mine, but she will not, any more than Kagan, bend the law to fit an ideology.
The blessing, he said, was that President Donald Trump took his list of future judges from the Federalist Society rather than "Sheriffs for Trump" or some other campaign group. The Kagans, the Barretts, the Ginsburgs, are all, my friend said, people whose first loyalty is to the law and not a party or a president.
Judge Barrett pledged as much, in making her own case.
This brings us to the plea of Nebraska Sen. Ben Sasse's plea for a Supreme Court of patriots and thinkers, as opposed to Democratic jurists or Republican ones. Great justices are capable of growth — of changing their minds, and disappointing the president who appointed them.
I am not convinced that originalism is the jurisprudence of a great justice. I think it is simplistic and self-contradictory. There is no such thing as a unified, common understanding in any given moment. And what if what most folks thought was the meaning of a law then now seems morally wrong?
But it is hard to argue with the idea of judicial humility and restraint (Bush v. Gore was neither), just as it is hard to argue against legislative or executive humility and restraint. That attitude is not only a useful corrective to governance but the frame of the founders. We should embrace it anew.
As Sasse said, it's a question of what kind of Supreme Court we want.
If you go to watch the court, unlike watching the House or Senate in session, it's impressive. The atmosphere is rigorous and somber. There is no filibustering by lawyers or judges. Most Americans would feel proud, because most Americans want a thinking court, not a political court. Not a court in the service of a party, or even a legal doctrine.
Judge Barrett didn't persuade me of everything she believes. But she did seem to me a thinking and independent judge. And I don't buy that she was faking it, hiding her radical opinions.
We aren't having debates about originalism or "the living Constitution" this year because the election is about personality.
The president has made it about his personality and his opponents have too.
My own view is that issues elections (at least occasional ones) are necessary for the relative progress of the country. In 1964, the country made a decision about direction. In 1960 and 2008, it made decisions about men.
We need to talk again about direction. We need to talk about originalism, and whether abortion should be part of Obamacare, and how to deal with the mentally ill living on our streets, and preserving Social Security, and how we will finally rebuild the nation's infrastructure.
We also need to deal with some deep cultural issues, touched on in the Barrett hearings, because culture drives politics:
Is there only one way to be a feminist? Is there only one way to seek God? Is there only one kind of compassion? Is there only one proper conception of American history? We have to talk about not only what kind of high court we want but what kind of country we want.
Congressional hearings used to be one place to converse. The press was another. Both seem wrecked at the moment. So we must fix them or find new ways to see and hear each other, not only to reach proximate compromises, but to forestall a permanently divided and mutually alienated nation.
