Dear Reader,

It is not even four weeks since Ruth Bader Ginsburg’s passing and the confirmation hearing for her conservative replacement is already wrapping up. It has been an unprecedented and astonishing shotgun process, with Election Day and possible electoral defeat acting as the metaphorical gun to the heads of Republican senators. I agree with the majority of Americans that the nomination is illegitimate and contrary to the will of the people, not to mention contrary to Mitch McConnell’s own standards articulated in 2016.

But what of the substance of the hearing itself? On that score, Judge Amy Coney Barrett’s commitment to obfuscating her views is not without precedent. Time and time again, she refused to give her frank thoughts on settled precedents or legal questions whose answers should not be controversial. Other nominees have tried to do the same, though my impression is that Judge Barrett is the least forthcoming nominee in recent times. She, like many before her, liked to cite what they call the “Ginsburg Rule,” — referring to RBG’s confirmation mantra that she could give no hints, no previews, no forecasts — never mind that the late Justice actually testified extensively about substantive legal matters, including opining on Roe and other reproductive rights issues.

The confirmation process is increasingly empty, a kabuki exercise in which nominees dance around questions on which they were happy to hold forth even moments before the honor of being picked for the Supreme Court. As the late Senator Arlen Specter often quipped, “Nominees say only as much as they think they have to in order to be confirmed.” It can seem a game of power, not principle.

Nonetheless, even against the backdrop of this unfortunate tradition, Judge Barrett’s reticence is striking.

She refused to answer countless questions on law and policy:

— She refused to say whether voter intimidation is illegal.

— She refused to say whether the President could pardon himself.

— She refused to say whether the President has the authority to unilaterally deny someone’s right to vote based on race.

— She refused to say whether it is wrong to separate children from their parents in order to deter immigrants from coming to the U.S.

— She even refused to say that presidents should commit to the peaceful transfer of power.

She was similarly silent about her views of various high court decisions. She would say that Brown v. Board of Education was correctly decided, but would not say the same for Griswold v. Connecticut, the case that held there is a privacy right to contraception. Nor would she say what she thought about Supreme Court cases relating to the Voting Rights Act or same-sex relationships. You can be sure she has views, perhaps strong views; but you were not going to learn them at this hearing.

This all gave me flashbacks to my own time working for Senator Chuck Schumer on the Senate Judiciary Committee back in 2005. It was just after Labor Day and I was preparing the Senator for the confirmation hearing of John Roberts to be Chief Justice. We decided to devote much of the second round of questioning to this vexing and perplexing issue of a nominee’s reluctance to talk about the very issues that might most inform a Senator’s decision to vote yea or nay.

We focused on how to crystallize this point not only for the nominee but also for the public. It seemed lunacy that in so many other, often less urgent contexts, someone could freely opine on the correctness of a judicial opinion, yet could essentially take the Fifth when seeking ascension to the highest court in the land. Senator Schumer made the point to Roberts this way:

[I]n this hearing room, you don’t want to criticize or disagree with any decided cases. That seems strange to me. It seems strange, I think, to the American people, that you can’t talk about decided cases, past cases, not future cases, when you have been nominated to the most important job in the Federal judiciary. You could do it when you worked in the White House. You could do it when you worked in the Justice Department. You could do it when you worked in private practice. You could do it when you gave speeches and lectures. As a sitting judge, you have done it until very recently. You could probably do it before you just walked into this hearing room. And if you are confirmed, you may be doing it for 30 years on the Supreme Court. But the only place and time that you cannot criticize any cases of the Supreme Court is in this hearing room when it is more important than at any other time that the American people and we, the Senators, understand your views.

Reading those words again, 15 years later, the outright refusal to answer any questions about past decisions still seems nonsensical. I get it; truthful answers could jeopardize confirmation, but it seems silly nonetheless. Nominees will argue, of course, that to give some preview might give the appearance of bias in some future case. This, too, is quite overstated.

As Senator Schumer later asked Roberts, “Has there been any judge that you are aware of who has had to recuse himself or herself because of what they said in a confirmation hearing? Can you name for me a judge who was biased or not able to render justice because they gave their opinion at a confirmation hearing, sitting at this table as you do?” There was no answer.

At the end of the Senator’s round, he used a movie analogy we had worked on in advance, to bring the point home:

It is as if I asked you what kind of movies you like. Tell me two or three good movies. And you say, I like movies with good acting. I like movies with good directing. I like movies with good cinematography. And I ask you, no, give me an example of a good movie. You don’t name one. I say give me an example of a bad movie. You won’t name one. Then I ask you if you like ‘‘Casablanca,’’ and you respond by saying, “Lots of people like ‘Casablanca.’’’ [Laughter.] You tell me it is widely settled that ‘‘Casablanca’’ is one of the great movies.

At that point, Chairman Specter interrupted. Senator Schumer’s time had just about concluded, but I suspect Specter was interjecting because my boss was making some headway with his point.

John Roberts insisted on responding and, ever quick and charming, delivered his own laugh line: “First, Dr. Zhivago and North by Northwest.” He then went on to try to distinguish the roles of academics and advocates, and he made some sense, of course. He also suggested that too much substantive engagement on cases would threaten to turn the confirmation into a kind of bargaining process, whereby Senators might confer or withhold votes based on particular coaxed answers. Decide for yourself whether those arguments are persuasive.

In the end, the tradition of reticence seems more about ensuring confirmation rather than high-minded adherence to canons of ethics. People remember that Judge Bork famously gave his views; because those views were deeply unpopular, his nomination failed.

It remains deeply ironic to me, as a matter of language at least, that aspiring Supreme Court Justices will go to great lengths to hide their opinions when auditioning for a job whose task is literally to write what? Opinions.

My best,

Preet

In Body Image

Trump’s Hostage Record 

By Sam Ozer-Staton

With less than three weeks until Election Day, the Trump administration has made several major announcements involving American hostages captured abroad, drawing attention to the government’s hostage policies and raising questions about possible political motivations behind the timing of the recent moves.

On Wednesday, the government announced that it has secured the release of two Americans held by Iran-backed rebels in Yemen. And last week, the DOJ’s National Security Division filed charges against two notorious ISIS militants who had tortured and murdered American hostages, marking a significant departure from the Trump administration’s prior opposition to trying terrorists in civilian courts.

President Trump has made his record on hostages a central part of his re-election campaign. The Republican National Convention in August featured a pre-recorded video with President Trump hosting freed hostages at the White House. “I’m very pleased to let everybody know that we brought back over 50 hostages from 22 different countries…I will tell you, we’re very proud of the job we did,” Trump said during the convention event.

Last week, Vice President Pence invited the parents of Kayla Mueller — one of the hostages murdered by the recently-charged ISIS militants — to his vice presidential debate with Sen. Kamala Harris. Accusing the Obama administration of not doing enough to save Mueller’s life, Pence said, “We had an opportunity to save Kayla Mueller…But when Joe Biden was vice president, they hesitated for a month.”

But that wasn’t true. According to the Washington Post’s Glenn Kessler, Obama was first briefed on a “bold plan” to rescue Mueller and three other Americans on June 27th, 2014 — and he acted quickly, but due to logistical factors, the Pentagon could not carry out the mission in time. Kessler writes:

[It took] considerably less than one month. Obama approved the plan in the same Situation Room (not Oval Office) meeting at which he first heard about it. Of course, it then takes time to get assets in place….The troops landed on July 3. But they were too late.

But beyond the election season posturing, does the Trump administration deserve credit for its record on hostages?

According to the New York Times’ Adam Goldman, “From the earliest days of his presidency, Mr. Trump has taken an intense interest in cases of Americans detained abroad, which he sees as opportunities to portray himself as a tough negotiator and protector for Americans overseas.”

At the RNC event in August, Trump claimed that he had brought home over 50 American hostages. However, Trump has faced criticism that he has artificially inflated that number by including individuals who were imprisoned in foreign legal systems, like three U.C.L.A. basketball players arrested by China for shoplifting, and the rapper A$AP Rocky, who was arrested in Sweden after being involved in a street fight.

President Trump has not just dedicated time and energy to the hostage issue. According to The New Yorker’s Joel Simon, he has also “repeatedly pushed the boundaries of the no-concessions policy upheld by Republican and Democratic Presidents since Nixon.”

The “no-concessions” policy — the United States government’s refusal to negotiate with terrorists — is predicated on the notion of a “moral hazard.” If the government pays ransom to terrorists, the thinking goes, then they will have an incentive to continue to abduct Americans.

Nearing the end of his presidency, President Obama commissioned the most significant review of the United States’ hostage policy to date, and several concrete reforms were implemented — but the no-concessions rule remained in place. According to The New Yorker, the final report, which was released in June 2015, “Created a more robust interagency system to support families and coördinate the government response. It provided some additional latitude, making clear that the U.S. government could ‘communicate’ with hostage-takers even if it couldn’t negotiate.”

At times, Trump has appeared to flout the no-concessions policy. In December 2018, the Trump administration claimed it negotiated the release of a Princeton graduate student, Xiyue Wang, in exchange for an Iranian scientist, Masoud Soleimani, who was imprisoned in the U.S. for sanctions violations. The administration had previously designated Iran’s Revolutionary Guard, which often controls American prisoners in Iran, as a foreign terrorist organization.

After securing Wang’s release, Trump tweeted: “Taken during Obama Administration…Returned during Trump Administration. Thank you to Iran on a very fair negotiation. See, we can make a deal together!”

On tomorrow’s episode of United Security, Ken Wainstein and Lisa Monaco weigh in on the recent hostage-related developments, including the release of American hostages from Yemen, and the decision to charge terrorists in U.S. federal court. Lisa, who oversaw the Obama administration’s 2015 comprehensive review of the government’s hostage policy, will also discuss her reform efforts.

In the meantime, do you think President Trump deserves credit for his record on hostages?

Write to us at [email protected] with your thoughts or reply to this email

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Seung Min Kim is the White House reporter for the Washington Post. In just the past week, she’s tweeted out breaking news on issues ranging from the Amy Coney Barrett confirmation hearings to the COVID-19 stimulus negotiations. Follow her @seungminkim.

In Body Image

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— Listen to this week’s episode of Stay Tuned, “The Post-Trump Clean-Up.” Preet is joined by Bob Bauer and Jack Goldsmith, two top legal scholars and former executive branch lawyers, to discuss their new book, “After Trump: Reconstructing the Presidency.” And don’t miss the Insider bonus, where Bob Bauer (who reportedly played President Trump in Biden debate prep) dishes on the debate.

— Listen to this week’s episode of CAFE Insider, “Don’t Spare the Rod,” where Preet and Anne react to Rod Rosenstein’s involvement in the Trump administration’s border family separation policy, the latest on the Amy Coney Barrett confirmation hearings, and more.

— Look out for Friday’s new episode of United Security, where Lisa Monaco and Ken Wainstein discuss the latest on the election, the concerns around presidential succession raised by the White House COVID-19 outbreak, the charges brought against two ISIS members responsible for taking Americans hostage, and more