Three takeaways from the final day of questions for Supreme Court nominee
US Supreme Court nominee Amy Coney Barrett endured another full day of questions from senators yesterday as Republicans try to tee up final confirmation votes just days before Election Day on 3 November.
Yesterday’s Judiciary Committee hearing went about the same as the first two sessions, with Democrats framing Ms Barrett’s last-minute nomination to replace the late progressive icon Ruth Bader Ginsburg on the court as Republicans’ latest attempt to kneecap the 2010 health care law commonly known as Obamacare, and Republicans championing the nominee as a conservative constitutional “originalist.”
Technical glitches with the microphones in the hearing room on Capitol Hill twice delayed yesterday’s hearing, but Chairman Lindsey Graham managed to keep the nomination proceedings running smoothly so Republicans on the panel can advance Ms Barrett out of committee by next Thursday.
1 What Barrett won’t say…
Ms Barrett continued with her conservative approach to addressing senators’ questions, declining to answer dozens of queries about how she might rule on particular matters of presidential power, health care, and women’s issues, among others.
News headlines on Tuesday and yesterday from her two days answering senators’ questions have dealt more with what Ms Barrett hasn’t said than what she has said.
“You are pushing me to try to violate the judicial canons to offer advisory opinions, and I won’t do that,” she bluntly responded to Senator Richard Blumenthal of Connecticut, who had been cross-examining her about any potential challenges to the court’s 2015 Obergefell v Hodges ruling that enshrined marriage as a constitutionally guaranteed right to same-sex couples.
On Tuesday, Ms Barrett refused to “pre-judge” any cases related to the 2010 health care law commonly known as Obamacare, gay marriage, abortion rights, gun control and several other hot-button political issues.
It was more of the same yesterday.
Ms Barrett, a professor at Notre Dame Law School who has sat on the US Seventh Circuit Court of Appeals since 2017, stonewalled lawmakers on everything from whether access to birth control should remain legal, to the morality of the Trump administration’s immigration policy, to whether a president could pardon himself.
There is no case law on whether a president can pardon himself from a crime because no president has ever been indicted, she explained.
“It’s not one in which I can offer a view,” she said in response to a question from Democratic Senator Patrick Leahy of Vermont.
She even shut down a question from Republican Senator Thom Tillis of North Carolina soliciting her opinion on pandemic restrictions on in-person church services, which conservatives groan have been more onerous than restrictions on racial justice protests.
“Those aren’t things I’d be able to comment on,” Ms Barrett told Mr Tillis, who is in a tossup re-election race this autumn against Democrat Cal Cunningham.
“The general position is the government has a compelling interest in responding” to a public health crisis such as the coronavirus pandemic, Ms Barrett said. But the court would also have to weigh First Amendment considerations.
2 Seniority sets Democrats back
Yesterday’s hearing once again underscored just how detrimental Democrats’ strict adherence to seniority on Capitol Hill can be.
Over the past two days, Senators Richard Durbin of Illinois, Amy Klobuchar of Minnesota, Chris Coons of Delaware, and Sheldon Whitehouse of Rhode Island have been the four Democrats on the Judiciary panel most capable of forcefully, yet decorously, challenging Ms Barrett on her legal record and probing how she might rule on certain cases as a justice.
Problem is, they had to wait hours on Tuesday and yesterday for their shot to ask questions of the judge. By the time Mr Durbin, the first of those four, got his chance to cross-examine Ms Barrett, three Republicans had already gone, as well as two Democrats, ranking member Dianne Feinstein of California and Senator Patrick Leahy of Vermont.
Both have asked some probing questions.
But Supreme Court hearings are equal parts substance and political theatre, and Ms Feinstein’s insistence on maintaining utmost decorum and Mr Leahy’s slow, quiet voice haven’t exactly projected the strongest Democratic front against Ms Barrett’s confirmation.
Several outside commentators observed yesterday that Ms Feinstein, 87, and Mr Leahy, 80, could have swallowed their egos and let their colleagues who are still in their political primes go first.
Both Ms Feinstein and Mr Leahy, in their own rights, are institutions of the Senate and no doubt command immense respect from members of both parties, brokering major legislative deals behind the scenes and helping the chamber maintain a shred of its vaunted decorum.
But liberals outside Congress – and even younger members on the inside – have expressed their frustrations with the party for letting Capitol Hill tenure dictate who holds leadership positions and gets to speak first at hearings.
Last month, Politico reported, several junior Democrats privately urged Minority Leader Chuck Schumer to consider replacing Ms Feinstein as ranking member of the committee for the Barrett hearings, arguing Democrats on the panel needed a more youthful, energetic counter to the lively Mr Graham.
That did not happen.
3 Obamacare continues to dominate debate
Since Mr Trump nominated Ms Barrett last month, Democrats have painted her as a judicial torpedo for Obamacare and its provisions that have driven down the costs of coverage for Americans with pre-existing conditions.
The Judiciary Democrats have stayed dutifully on message throughout the first three days of hearings.
And yesterday, Mr Durbin made a veiled reference to the president’s penchant for getting orange-hued spray tans to punctuate his accusation that the president appointed Ms Barrett to undermine Obamacare through the courts.
“There is a political agenda here. Whether you are privy to it, part of it, notwithstanding, it has to do with the Affordable Care Act,” Mr Durbin told Ms Barrett of the circumstances surrounding her nomination.
“Tenth of November is the absolute date they have to fill the vacancy if the president, and those who support him, and those who support the Republican platform are going to keep their promise to end the Affordable Care Act. They need that ninth justice, and that’s why it has to be hurried. Unfortunately, that is the cloud – the orange cloud – over your nomination,” Mr Durbin said.
The Supreme Court is set to begin listening to oral arguments on 10 November – just seven days after the 2020 presidential election – on yet another legal challenge to Obamacare, with Republican state attorneys general on one side and Democrats on the other.