All GOP nominees profess to believe in “judicial restraint,” and promise not to substitute their values for the intent of the legislature. Originalism, however, is a “Protestant” approach to constitutional law, ironically practiced most conspicuously by Catholics, which shows little deference to judicial precedent, past practices, and legislative intent. The two judicial doctrines most loved by the GOP are, therefore, fundamentally in conflict with each other. Thanks to Senator Durbin for pointing this out in a relatively subtle way.
While commenting on pending cases is a violation of the judicial canons, and speculating about the outcome of incomplete factual hypotheticals can mislead the audience, there is absolutely no good reason other than self-preservation why judicial nominees cannot talk about the reasoning in past cases. To refuse to do so deprives the Senate and the American people of the ability to make a fully informed decision on confirmation. The “Ginsburg Rule,” in short, needs to go. Senators on both sides of the aisle should refuse to confirm nominees who use it to protect themselves in the future.
Barrett admitted that Griswold was not likely to be relitigated in the future. It is not a hypothetical fact situation. Barrett’s refusal to talk about it was thus a completely unwarranted extension of the “Ginsburg Rule” even if you think the “Rule” has merit, which it does not.
Both parties got what they wanted out of the hearing. The burden is on Barrett to prove that she isn’t a handmaid for an evil and corrupt president. If she casts a decisive vote to strike down the ACA or keep Trump in office against the will of the American people after this performance, there will be hell to pay in this country in 2021.
While I have a bit more to say about the process in general, I will not review Day 4, which will be completely pointless.