Supreme Court nominee duels with Democrats in second day of hearings
Supreme Court nominee Amy Coney Barrett made clear to senators yesterday that she is owned by no one – not Donald Trump, not Senate Republicans or conservative dark money groups, and not the late Justice Antonin Scalia, her legal mentor.
“I want to begin by making two very important points, and they have to do with the [2010 health care law known as Obamacare] and with any election dispute that may or may not arise,” she said during an exchange with Senator Richard Durbin of Illinois. “I have had no conversation with the president or any of his staff on how I might rule in that case.”
Mr Trump has vowed on numerous occasions over the last several years that he would only appoint judicial nominees who would roll back Obamacare and Roe v Wade, the Supreme Court’s landmark 1973 decision guaranteeing women’s abortion rights. Ms Barrett answered questions in 30-minute rounds from senators on the Judiciary Committee on day two of her confirmation hearings after Mr Trump nominated her last month to replace the late Justice Ruth Bader Ginsburg, the progressive icon who died of cancer after serving for 27 years on the high court.
Ms Barrett would be Mr Trump’s third selection to serve on the Supreme Court. If she is confirmed, the nine-justice court would have a 6-3 conservative majority.
A Notre Dame Law School professor who has served on the US Seventh Circuit Court of Appeals since 2017, Ms Barrett defended herself as a constitutional “originalist” and largely declined to openly speculate on how she would rule in cases pertaining to hot-button political issues such as Obamacare, abortion rights, gun control and gay marriage.
When asked by California Democratic Senator Dianne Feinstein if she agreed with Justice Scalia, for whom she clerked, that Roe v Wade was wrongly decided, Ms Barrett invoked liberal Justice Elena Kagan’s answers during her 2010 hearings that “the canons of judicial conduct would prohibit” her from expressing a view.
“If I express a view on a precedent one way or another … it signals to litigants that I may tilt one way or another on a pending case,” Ms Barrett said. “I can’t pre-commit and say, yes, I’m going in with some agenda.”
Ms Barrett added: “I don’t have any agenda.”
That answer set the tone for the rest of the day as Democrats tried to explain to viewers watching the hearing at home why they believe Ms Barrett would undercut progressive policy goals such as Obamacare and abortion rights.
Meanwhile, Republicans on the panel mostly lobbed softball questions to Ms Barrett about her constitutional originalism and applauded her for being a devout Catholic who has promised not to let her personal beliefs interfere with her legal decisions.
An ‘illegitimate’ hearing
The way Senate Democrats see it, they shouldn’t even be having the hearings based on the Republican argument from 2016 that it’s too close to a presidential election to fill a Supreme Court seat.
Millions of Americans have already cast early ballots they have argued, and the Senate should wait until the next president is seated to confirm a replacement for Justice Ginsburg.
Rifling through bullet-point cardboard slides on an easel on his desk, the Rhode Island Senator Sheldon Whitehouse called out the hypocrisy of Republicans refusing to hold hearings for Barack Obama’s Supreme Court appointee in 2016, Merrick Garland, because it was an election year and, as Iowa GOP Senator Chuck Grassley said at the time, “the American people shouldn’t be denied a voice”.
Mr Obama nominated Mr Garland seven months before the 2016 election. Mr Trump, on the other hand, nominated Ms Barrett, whom Republicans are determined to confirm this year, seven weeks before the 2020 election.
“When you find hypocrisy in the daylight, look for power in the shadows,” Mr Whitehouse said, before diving into a 30-minute presentation on how a quarter of a billion dollars in conservative dark money has helped Republicans reshape the federal judiciary during Mr Trump’s presidency.
Judiciary Chairman Lindsey Graham, who as recently as the fall of 2018 vowed Republicans would not seat
a Supreme Court nominee during the 2020 election season, has said he is fulfilling his “constitutional” duty by following through with Ms Barrett’s confirmation hearings.
A 2020 election conflict of interest
Ms Barrett repeatedly resisted Democratic pleas for her to commit to recusing herself from any Supreme Court decisions with a bearing on the 2020 election, as Mr Trump has made clear he plans to challenge the validity of the election results if he loses, based on an unsubstantiated claim that mail-in ballots are rife with fraud.
A raft of statements by Republicans and the president have created the appearance of a conflict of interest around Ms Barrett’s potential decision on any election disputes, Democrats have said.
“I think [the election] will end up in the Supreme Court,” Mr Trump told reporters in September.
“I think it’s very important that we have nine justices, and I think the system is going to go very quickly,” Mr Trump said.
Mr Blumenthal and several other Democrats – most notably Senator Chris Coons of Delaware – have made the distinction this week that Ms Barrett, herself, has not done anything wrong.
“It’s not anything you’ve done,” Senator Richard Blumenthal of Connecticut said.
“They have indelibly put at issue your integrity through their statements. The president has said he’s putting you on the court as a ninth justice so you can decide the election. He’s been very clear and transparent,” Mr Blumenthal said.
“It would be a dagger at the heart of the court and our democracy if this election is decided by the court instead of the voters.”
Roe v Wade not a ‘super precedent’
Senator Amy Klobuchar of Minnesota was one of the few senators yesterday to coax out comments from Ms Barrett that provide indications about how she views the Roe v Wade decision.
The 1973 Supreme Court abortion ruling does not meet the criteria of a “super precedent” and therefore is not settled law, she told Ms Klobuchar, signalling she believes a future court could theoretically overturn it.
“Roe is not a super precedent because calls for its over-ruling have never ceased,” Ms Barrett said.
But, the judge clarified, that does not mean she would personally issue a decision overruling it.
“It just means that it doesn’t fall on the small handful of cases like Marbury v Madison and Brown v. [The Board of Education] that no one questions anymore,” Ms Barrett said, referring to the landmark court cases establishing the principle of judicial review and that racial segregation is unconstitutional.
Obamacare front and centre
Democrats continued to hammer Ms Barrett yesterday on her past statements pitting her against previous Supreme Court decisions upholding key Obamacare provisions.
While Republicans have argued the 2010 health care law does not pertain to Ms Barrett’s Supreme Court nomination process, Democrats have said Republican statements and efforts to gut the law through the courts have made it the central topic.
On one of his slides, Mr Whitehouse presented a direct quote from the Republican party platform from 2016 and 2020 that read: “A Republican president will appoint judges … who will reverse the long line of activist decisions – including Roe, Obergefell, and the Obamacare cases.”
Roe v Wade is the landmark Supreme Court decision from 1973 that enshrined abortion rights for American women. Obergefell v Hodges is the court’s 2015 decision that guaranteed same-sex couples the fundamental right to marry in all 50 states.
The Supreme Court has ruled on several cases with implications on key provisions from the 2010 health care law commonly known as Obamacare.
Mr Whitehouse and other Democratic senators pointed to several other comments by the president promising to appoint federal judges – including Supreme Court justices – who would roll back Obamacare policies.
“That is the president’s statement. So when we react to that, don’t act as if we’re making this stuff up. This is what President Trump said. This is what your party platform says: ‘Reverse the Obamacare cases,’” Mr Whitehouse said.
Mr Graham, the South Carolina Republican who is in a closely contested re-election battle this November against Democratic state party Chairman Jaime Harrison, used his opening remarks yesterday to push back against Obamacare.
“All of you want to impose Obamacare in South Carolina – we don’t want it,” Mr Graham said. “We want South Carolina-care, not Obamacare.”
The senator briefly sketched a plan for a state-by-state “block grant” for health care.
“And we would require pre-existing conditions to be covered as part of the block grant,” Mr Graham said.
A return to decorum
While Ms Barrett spent the day parrying Democratic assaults on her legal record and the circumstances of her nomination, the hearing room never came close to erupting into the sort of partisan furore that marked the confirmation hearings of Justice Brett Kavanaugh in 2018.
“[I have] just one observation,” Mr Graham said yesterday afternoon during a brief break between questions.
“Not one time has a senator and the judge talked over each other,” commending senators on both sides of the aisle for asking “a lot of good questions”.
Mr Graham added: “I hope the American people understand that this is the way it should be.”