Amicus With Dahlia Lithwick: "The Litmus Test" (October 17, 2020)

Host: Dahlia Lithwick (Slate)
Guests: Elise Hogue (President, NARAL Pro Choice America) and Pamela Karlan (Stanford Law School)

Episode Overview

This episode of Amicus closely examines the Senate confirmation hearings of Judge Amy Coney Barrett to the U.S. Supreme Court, focusing on the process, political context, and implications for the court, women's rights, and democracy. With guest Elise Hogue, a leading voice in the reproductive rights movement, and constitutional law scholar Pamela Karlan, host Dahlia Lithwick explores the theatrical, formulaic nature of the hearings, the normalization of extreme positions, the GOP’s long game on the courts, and the future of fundamental rights.

Key Discussion Points & Insights

1. The Amy Coney Barrett Confirmation Hearings: Formulaic, Yet Radical

• The hearings strictly followed the modern script: the nominee offers few answers, pledges an open mind, and provides no opinion on contentious issues (04:54).
• Elise Hogue: “What is happening is the antithesis of normal. And... what we saw was a tremendous amount of gaslighting obfuscation and non answers ... compounded by the fact that the GOP was rewriting history sitting in the hearing room as they are wont to do.” (04:54)
• The spectacle normalizes what Hogue calls “extreme actions and extreme views.” The dangerous part is how “it felt normal. And that in and of itself is deeply appalling.” (04:54)
• Lithwick draws a sharp contrast with past nominees (Clarence Thomas, for instance) who arguably had less clear records; Barrett's long anti-abortion record wasn’t hidden or ambiguous. (06:15)
• Elise Hogue: Barrett’s record “would have been disqualifying not that long ago. And that’s crucially important because... her nomination is dangerous. It's dangerous to fundamental rights and freedoms that we should be able to take as sacrosanct...” (07:40)

2. Image, Motherhood, and "Real Feminism"

• The GOP’s focus on Judge Barrett’s motherhood and home life was unprecedented: frequent references to her seven children, questions about “who does the laundry” (10:26–11:02).
• Elise Hogue: “They have insisted for decades that feminism is a sorority where all women should be accepted... versus an actual political philosophy that attacks root causes of gender oppression...” (11:45)
• She places Barrett in the tradition of female figures who uphold patriarchal systems (Phyllis Schlafly, Kellyanne Conway).

3. Colorblindness, Equity, and Structural Disadvantage

• Lithwick notes how Barrett’s response on racial justice and her own family “sent up a flare about the difference between... Ginsburg's jurisprudential vision” (helping all, not just “me and mine”) (13:11).
• Elise Hogue: “This feels so reminiscent of a time that should be long gone, where it's all about the individual... when... the majority of America depends on... a structural critique of inequity. And that is what RBG stood for...” (14:25)
• Discussion of how personal experiences are not sufficient proxies for broader policy insight (a la Justice Sotomayor).

4. The "Dark Money" Federalist Society Machine

• Senator Sheldon Whitehouse’s questioning highlighted the network behind court nominations and legal strategies, including the Federalist Society and aligned dark money groups (16:32–18:38).
• Elise Hogue explains: Abortion was chosen as a “litmus test” by the Federalist Society because it “perfectly map[s] on to hostility to other forms of social progress... It was a control agenda for a minority of people...” (18:38)
• She distinguishes the real animus not as religiosity, but as opposition to equity across gender and race.

5. Religious Liberty, Kabuki Theatre, and the "Ginsburg Rule"

• Republican Senators (Hawley, Kennedy, Marsha Blackburn) portrayed any questioning of Barrett as “religious bigotry” (21:34–22:14).
• Hogue recounts the historical use of “religious liberty” as a fig leaf for exclusion, including resisting desegregation (22:26).
• She applauds Democrats for not taking the bait.
• Barrett’s reliance on the “Ginsburg Rule” to avoid positions is called out as gaslighting since Ginsburg openly discussed Roe at her hearings ("no hints, no previews" is not the same as refusing to answer basic questions) (24:15–26:56).

6. Beyond Roe: The Real Threats to Reproductive Rights

• Lithwick and Hogue challenge the false binary that abortion rights are safe unless Roe is explicitly overturned (28:31–30:16). "The project here... doesn't have to be writing the sentence ‘Roe v. Wade is overturned.’"
• Hogue points out: Access has already been eroded for many; it's not just about Roe, but about barriers, criminalization, and a broader agenda (“It looks like, as Senator Booker said, miscarriages being investigated... These are real things that are happening in this country.”) (30:16)
• The vision includes attacks on contraception, IVF, surrogacy—"This is about reproductive oppression as a means of control and codifying in law what they believe ‘natural family’ looks like.” (34:11)

7. Democratic Failures and Asymmetrical Norms

• Lithwick questions the refrain that Democrats simply "suck" at these fights (35:31).
• Elise Hogue: “What I found really disturbing was the false equivalence that the mistakes we have made... was somehow commensurate with a minority of people who have literally subverted democracy to get their way...” (37:10)
• She defends faith in democracy and the continued need to fight for it, even if the rules are asymmetrical.

8. Pam Karlan: The Hearing Was "Beyond the Cellar"

• Karlan (beginning at 39:22) sums up the hearing as beneath normal standards: “It's hard to imagine a basement below the cellar into which this hearing went... the Republican members... had announced they were going to vote for the president's nominee before they even knew who the nominee was.” (40:53)
• She’s shocked at Barrett's refusal to answer even basic legal questions, like whether voter intimidation is illegal: “...to refuse to answer whether intimidating voters is illegal or not is to say there's no point to having hearings here at all.” (41:51–42:21)
• Both Karlan and Lithwick are disturbed by Barrett’s noncommittal answers on absentee voting and a peaceful transfer of power: “...injecting into the discourse the very uncertainty that whips up a lack of trust in absentee voting.” (42:21–43:33)
• Karlan: “I don't understand why she wouldn't simply say, given, of course I can be fair.... But I recognize that many people may think... that was improper. So I'll recuse myself from cases involving this election.” (43:33)

Notable Quotes & Memorable Moments

• Elise Hogue:

  • “The GOP has long been aware that they should focus on the wrapping paper and not the toxic mess that is inside.” (11:45)
  • “We are all the frogs and the GOP's boiling water.” (07:40)
  • “They have used religion as a fig leaf for oppression for decades and decades.” (22:26)

• Dahlia Lithwick:

  • “There's a way in which this is not an ambiguous record. In fact, it's so unambiguous that the president can crow about what's going to happen.” (06:15)
  • “I felt as though it was different in kind only because it was injecting into the discourse the very uncertainty that whips up a lack of trust in absentee voting.” (42:21)

• Pamela Karlan:

  • “It's hard to imagine a basement below the cellar into which this hearing went...” (40:53)
  • “To refuse to answer whether intimidating voters is illegal... is to say there's no point to having hearings here at all.” (41:51)

• Senator John Kennedy (to Amy Coney Barrett): “Who does the laundry in your house?” (10:53) -- exemplifying the odd focus on Barrett’s home life.

Key Timestamps

• 04:54 – Hogue on formulaic, evasive nature of hearings
• 06:15 – Lithwick on Barrett’s clear anti-abortion record
• 07:40 – Hogue: Barrett’s record would be disqualifying not long ago
• 10:26–11:02 – Montage of Senators focusing on Barrett’s motherhood
• 11:45 – Hogue on GOP’s “wrapping paper” feminism
• 13:11–14:25 – Barrett's answers on racial justice vs. Ginsburg’s worldview
• 16:32–18:38 – Dark money, Federalist Society, and the anti-abortion “litmus test”
• 21:34–22:14 – GOP invoking religious bigotry / the “kabuki”
• 24:15–26:56 – Ginsburg’s actual testimony on Roe compared to Barrett’s evasions
• 28:31–30:16 – Roe v. Wade and the “undue burden” on abortion rights
• 30:16–34:11 – Real world impact: criminalization, fetal personhood, reproductive oppression
• 35:31–37:10 – The “Dems just suck” narrative and its limits
• 39:22–44:54 – Pam Karlan on the substantive void of the hearing

Overall Tone

• The episode is critical, urgent, sometimes incredulous, and deeply concerned about democratic norms, the independence of the judiciary, and the future of rights for women, people of color, and vulnerable communities.
• The guests employ vivid metaphor and clear, accessible language—juxtaposing the kabuki theater of the hearings with the real-world consequences of the Supreme Court’s direction.

Summary

This episode is an incisive, impassioned look at the confirmation process of Amy Coney Barrett—exposing the normalization of radical positions; the strategic use of “feminism,” family, and faith for political ends; and the GOP’s decades-long effort to use the judiciary as a bulwark against social progress. Hogue and Karlan both express alarm at the erasure of real debate and the disregard for past norms, urging listeners to recognize the stakes not only for Roe v. Wade but for the very structures of American democracy and equality.