Friday, October 2, 2020
In Commonweal, Matthew Sitman has a misguided piece that (among other things) engages egregiously in what the kids today call "gaslighting" and displays a disappointing lack of concern with accuracy and context when it comes to Judge Barrett's record on the Seventh Circuit. Michael Sean Winters calls it "great writing and great analysis", and while the prose is fine, the "analysis" is quite unsatisfactory.
For starters, Sitman dismisses the nasty (indeed, loathesome) character of some of the attacks on Barrett (both three years ago and now) as a "handful of regrettable articles" and "the inevitable awfulness of social media." Social media is awful, true, but for Sitman or anyone else to pretend that the nature of the attacks on Barrett have not reflected hostility to Catholicism (that is, hostility to Catholicism unpurged of those features that are uncongenial to contemporary progressivism) is, to use his words, to inhabit an "alternate reality." In that reality, it is those who are clear-eyed about this fact -- rather than those who post memes of Judge Barrett in goofy red "handmaid" costumes or who attack her as a racist for adopting children from Haiti -- who are engaging in "culture war theatrics."
The gaslighting section of the piece is followed with some cut-and-paste-and-link paragraphs to others' hackish pieces containing what purport to be, but are not, descriptions of Barrett's legal views and decisions that, it is said, are examples of her "appalling" record. It does not appear that Sitman has read (or, if he has, it is clear that he either does not care, or does not understand, the content of) Barrett's scholarly articles and judicial opinions. He repeats the allegation that Barrett poses a "threat . . . to the Affordable Care Act" but never actually engages (or even mentions) the question presented in the upcoming ACA case, which has to do with "severability" (and not with the congressional-power question that was at issue in Chief Justice Roberts's Sebelius opinion, 8 years ago, which Barrett (quite reasonably) criticized. Almost no legal expert believes there is a real chance that a majority of the justices (if any of the justices) will conclude that the ACA is, in its entirety, now unconstitutional. This is a made-up threat, designed to give Judge Barrett's opponents something to talk about besides her children and her religion. He links to an overheated critique of an article that Barrett wrote on stare decisis, but does not appreciate that, in fact, Barrett holds the unremarkable view, shared by pretty much everyone, that stare decisis is an important principle, but not an "inexorable command."
Then, there are a series of mentions of Court of Appeals decisions -- one involving immigration, another involving prison guards' excessive force, another involving GrubHub drivers, another involving felons' gun-possession rights -- in which, it appears, Barrett failed to vote for the litigation position of the party with whom Sitman (or those whose descriptions and summaries he links to) sympathizes. Of course, this is not how judging, or law, is supposed to work. There's no consideration of the content of the duly enacted (whether wisely or not) laws that are being interpreted or applied, no discussion of the cases' procedural histories and posture or of the precise questions presented, and no interest in what the correct legal answer to those questions might be. Judge Barrett has written about 100 opinions, and voted in many, many more. It would have been quite a thing if, in every one of those cases, the legal conclusion that lines up with Sitman's sympathies and priors had been the right one. If he were to examine three years' worth of appellate-court votes by the Seventh Circuit's most "liberal" member -- say, Judge Diane Wood -- or of Judge Merrick Garland, or of the late Justice Ruth Bader Ginsburg, Sitman would find, I can assure him, some cases where a sympathetic immigrant, worker, or prisoner lost, because his or her legal position was incorrect.
Sitman concludes that "[n]o one should object to Barrett joining the Supreme Court because she is a conservative Catholic[.]" But, it is difficult to avoid the conclusion that this is precisely why he, like many of Barrett's other detractors, objects.