In a post below, I complained about how, instead of questioning Amy Coney Barrett, Senators are using her as a prop while they make speeches. Not surprisingly, Sen. Sheldon Whitehouse, a world class grandstander, was the biggest culprit during three hours or so of the hearing that I watched.
Sen. Dick Durbin did a fair amount of speechifying, too. Much of it was directed, not at the issue of whether Barrett should be confirmed, but at the matter of whether Obamacare is good policy and, by extension, whether voters should defeat Republicans who don’t favor it.
Durbin did engage Judge Barrett, though. I’ll give him that much. And the colloquy was instructive. It reminded us of how slippery and dishonest Durbin is.
Durbin argued that because, as a law professor, Barrett disagreed with the legal methodology through which Obamacare twice survived challenge in the Supreme Court, she is hostile to the Act and therefore will invalidate it when a third challenge is considered next Term. But Barrett’s assessment of the legal reasoning in the prior two cases has no bearing on the entirely different issue before the Court now.
Unless he got his law license from a crackerjack box, Durbin knows this.
As I noted yesterday, the issue before the Court in the upcoming term is severability — that is, whether now that Obamacare’s individual mandate has been invalidated, the entirety of Obamacare must be dismantled. Nothing in Barrett’s analysis of prior Obamacare decisions speaks even remotely to the issue of severability.
Therefore, as Barrett gently pointed out, Durbin’s premise has to be that Barrett’s prior writings were not the result of good faith legal analysis, but rather were driven by a result-oriented hostility to Obamacare as policy. Indeed, Durbin accused of the judge of such hostility.
Rather than owning his premise, Durbin disavowed it when called out. Par for the course with him.
Durbin also tried to find a tension between Barrett’s personal outrage over the way the police treated George Floyd and her refusal to say that states can’t bar felons from voting. There is no connection. It’s true that Floyd was a criminal, but I doubt this was the connection Durbin had in mind.
This discussion between Durbin and Barrett occurred in connection with a dissent the judge wrote from a decision upholding the denial of the right to own a firearm to a man convicted of fraud. The fraud rose to the level of a felony, but there was no violence connected with it. The question was whether, without a showing that it would be dangerous for this felon to own a gun, his Second Amendment rights can be denied. Barrett said no.
Eager to make Barrett look bad, Durbin launched an oration about how dangerous felons are, whether violent or not. He cited recidivism rates for felons as a class. Through his gestures, he seemed to question the distinction between violent and non-violent felons. He argued that there is a serious risk that any felon will commit a violent crime in the future.
These, of course, are all arguments against the early release of federal drug felons who weren’t convicted of a violent crime. Yet, Durbin and other leading “jail break” supporters constantly assure us that they want only to put non-violent felons back on our streets early, and that doing so won’t increase violent crime.
Durbin’s denunciation of “non-violent felons” as a threat to public safety makes sense if we’re talking about drug felons (which Durbin was not). Everyone understands the violence associated with drug trafficking.
Durbin’s claim that non-violent felons threaten public safety makes less sense if we’re talking about a guy who committed fraud (which Durbin was).
In any case, as Judge Barrett tried to explain to Durbin, the view she expressed in her dissent would not preclude prosecutors from showing that this particular fraudster did pose that danger. The point of her dissent, as I understand it, was merely that such a showing should be required before depriving someone who has never committed a violent crime of a constitutional right.
Durbin didn’t get his law license from a crackerjack box. He’s a smart guy and good questioner.
Thus, when he fails to understand the obvious differences between the current Obamacare case and its predecessors, or when he posits some sort of connection between a gun rights case and the death of George Floyd, Durbin isn’t being ignorant. He’s being dishonest.