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Just like Sen. Dianne Feinstein had done earlier that day, Sen. Amy Klobuchar tried during Senate hearings Tuesday to press Supreme Court Justice nominee Judge Amy Coney Barrett about judicial precedent vis-a-vis Roe v. Wade.
And just like Feinstein, she didn’t directly jump to the topic she had in mind.
Instead Klobuchar surreptitiously began her interrogation by cherry-picking a quote from an article that Barrett had penned for the Texas Law Review seven years earlier.
“You wrote … that you tend to agree with the view that when a justice’s best understanding of the Constitution conflicts with Supreme Court precedent or case law, it is ‘more legitimate’ for her to follow her preferred view rather than apply the precedent,” the senator said.
She then brought up Brown V. Board of Education, the landmark 1954 ruling that had banned racial segregation in public schools.
Watch the full interrogation below:
The suggestion appeared to be that Barrett’s prior words prove that she’d be open to reinstituting school segregation. To be clear, it’s actually Democrats who are attempting to revive now-defunct laws that would allow for racial discrimination and segregation.
Barrett responded by drawing attention to another quote that Klobuchar had conveniently neglected to mention.
“As I said in that same article, it’s super precedent. People consider it to be on that very small list of things that are so widely established and agreed on by everyone that calls for its overruling simply don’t exist,” she said.
Seen below, the article does contain a snippet laying out how cases like Brown v. Board of Education benefit from a super precedent “that no justice would overrule.”
“Once a case like Brown v. Board of Education achieves superprecedent status, its vitality is out of the Court’s hands,” the piece reads.
Continuing her interrogation, Klobuchar then slyly pivoted the conversation toward abortion, which of course had been the topic she’d been seeking to address the whole time.
“You also separately acknowledged that in Planned Parenthood v. Casey, the Supreme Court’s controlling opinion talked about the reliance interest on Roe v. Wade, which it treated in that case as super precedent. Is Roe a super precedent?” she said.
It’s as if she didn’t read Barrett’s entire piece, because in it the judge had clearly explained that super-precedence isn’t determined by the courts but by the people.
“The force of so-called superprecedents, however, does not derive from any decision by the Court about the degree of deference they warrant. … The force of these cases derives from the people, who have taken their validity off the Court’s agenda,” she’d written.
She reiterated this point during Tuesday’s hearing.
“People use super precedent differently. The way that it’s used in the scholarship and the way I was using it in the article that you’re reading from was to define cases that are so well settled that no political actors and no people seriously push for their overruling,” she said.
“And I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall into that category. And scholars across the spectrum say that doesn’t mean that Roe should be overruled, but descriptively it does mean that it’s not a case that everyone has accepted and doesn’t call for its overruling.”
Indeed, over a quarter of the population believes Roe v. Wade should be overruled, including over 50 percent of Republicans:
POLL: 29% of Americans want to see Roe v. Wade overturned, including most Republicans.
— Sahil Kapur (@sahilkapur) June 29, 2018
Yet judging by Klobuchar’s next question, it seems the legitimate points Barrett had made flew right over her head.
“You said that Brown is a super precedent. … If you say that, why won’t you say that about Roe v. Wade, a case that the court’s controlling opinion in that Planned Parenthood v. Casey case has described as a super precedent,” she asked.
It was almost as if she wasn’t paying attention …
“Well senator, I can just give you the same answer that I just did,” Barrett began, after which she basically rehashed her prior points all over again.
“I’m using a term in that article that is from the scholarly literature. It’s actually one that was developed by scholars who are certainly not conservative scholars, who take a more progressive approach to the Constitution. And again, as Richard Fallen from Harvard has said, Roe is not a super precedent because calls for its overuling have never ceased.”
She was right about Richard H. Fallon, Jr., a law professor at Harvard Law School.
“[A] decision as fiercely and enduringly contested as Roe v. Wade has acquired no immunity from serious judicial reconsideration, even if arguments for overruling it ought not succeed,” he wrote in a 2008 North Carolina Law Review article.
View that article below:
But again, either the point flew over Klobuchar’s head, or she purposefully chose to ignore it so that she could grandstand in front of the American people.
“Is [United States v. Virginia] super precedent — is that super precedent?” she asked, bringing up an entirely unrelated case.
“Senator Klobuchar, if you continue to ask questions about super precedents that aren’t on the list of super precedents that I discussed in the article that are well acknowledged in constitutional law literature, every time you ask the question, I’ll have to say that I can’t grade it,” Barrett replied as if scolding a misbehaving child.
In response, the senator finally backed off but not without issuing an ominous, arguably childish warning about how the judge’s record allegedly proves her confirmation to the high court would lead America to a very bad place.
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