Oct 14, 2020 9:30 PM

🎥 Pardon power, silent mics on Barrett's final day

Posted Oct 14, 2020 9:30 PM
Barrett waiting for day 3 of questioning to begin before the Senate Judiciary Committee -image courtesy CSPAN
Barrett waiting for day 3 of questioning to begin before the Senate Judiciary Committee -image courtesy CSPAN

WASHINGTON (AP) — Supreme Court nominee Amy Coney Barrett faced a second day of questions Wednesday from the Senate Judiciary Committee as Democrats kept up their focus on health care three weeks before the Nov. 3 presidential election.

CLICK here to watch the replay of day 3 of the confirmation hearing.

Barrett again avoided taking positions on a variety of subjects and rulings, saying it would be inappropriate to comment on cases that may come before her as a justice. Republicans appear on track to push ahead with her confirmation before the election.

Takeaways from Day Three of the hearing:

HEALTH CARE PLAYS A STARRING ROLE — AGAIN

Democrats again pressed Barrett over her views on the Affordable Care Act, noting that President Donald Trump has made clear he wishes to undo the Obama-era health law. Democrats say Trump and Senate Republicans are rushing to confirm Barrett so she can be seated in time to hear a case next month challenging that law.

Sen. Dick Durbin, D-Ill., said there’s an “orange cloud” hanging over Barrett’s nomination — a political jab at Trump’s tan and a reference to the president’s oft-stated wish to overturn “Obamacare.”

Barrett told senators she is not “hostile” to the law and promised to consider all arguments.

Republicans played down the threat to the health law posed by the court case. “This hearing has been more about Obamacare than it has you,″ said the committee chairman, Sen. Lindsey Graham, R-S.C., told Barrett. He added: “Obamacare is on the ballot″ next month.

Republicans object to the health law because “it was written and passed on a partisan line,″ Graham said. ”Most big changes in society have more buy-in (from the public and the two political parties) than that. You’re talking about one-fifth of the American economy.″

Still, Graham and other Republicans stressed that even if parts of the law are struck down, important aspects such as coverage for preexisting conditions could still be preserved, under a concept known as severability. “The doctrine of severability presumes — and its goal is — to preserve (key parts of) the statute if that is possible,″ Graham said.

Barrett agreed, saying, “The presumption is always in favor of severability.″

Republicans have introduced bills to protect Americans with preexisting conditions and bring down drug prices, said Sen. Chuck Grassley, R-Iowa. “And if we act, (voters) don’t have to worry about you doing away with preexisting conditions in some future case down the road,″ he told Barrett.

___

NO ONE IS ABOVE THE LAW

On another issue where Trump’s views and tweets are well-known, Barrett declined to say whether a president can pardon himself. But she said she agrees no one is above the law.

Under questioning from Sen. Patrick Leahy, D-Vt., Barrett said the question of a self-pardon has never come before the court. “That question may or may not arise, but it is one that calls for a legal analysis of what the scope of the pardon power is,″ Barrett said. She said offering an opinion now ”would be opining on an open question ... it’s not one in which I can offer a view.″

Multiple investigations are looking into Trump’s taxes, his businesses and his associates, and he has said he has “an absolute right” to pardon himself.

While declining to address whether Trump would be able to pardon himself, Barrett said she agreed with Leahy’s assertion “no one is above the law.”

___

NO PREVIEW OF JUDICIAL VIEWS

For the second straight day, Barrett repeatedly declined to give her personal views, or to preview how she might rule, on issues that could become before the court. Like other Supreme Court nominees, Barrett said she was prohibited from expressing those opinions by the “canons of judicial conduct.”

In addition to a possible presidential pardon and whether to overturn the health law, Barrett said she could not give an opinion on whether she would withdraw from any election-related litigation involving Trump. He said when he nominated her that he wanted the full nine justices in place before any possible election decisions.

Barrett also said she could not answer whether Trump could delay the general election, an idea the president floated earlier this year even though he does not have authority under the Constitution to unilaterally change the date.

___

BREAKTHROUGH FOR CONSERVATIVE WOMEN

Graham opened Wednesday’s hearing by proclaiming Barrett’s expected confirmation a historic victory for conservative women. Like “conservatives of color,” conservative women, he said, are often “marginalized” in public life.

“This hearing, to me, is an opportunity to not punch through a glass ceiling but a reinforced concrete barrier around conservative women,” Graham told Barrett. “You are going to shatter that barrier.’’

Graham said he has “never been more proud of a nominee” than he is of Barrett, a federal appeals court judge from Indiana. “This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology, and she is going to the court. This is history being made, folks.”

Barrett has declined to say how she would rule on a challenge to the Roe v. Wade decision that established abortion rights, but she has made clear she opposes abortion rights and signed a 2006 letter objecting to “abortion on demand.”

___

SHIFTING THE SUPREME COURT BALANCE

Sen. Chris Coons, D-Del., asked Barrett whether she would acknowledge that her confirmation would mean a shift to the right on the Supreme Court that would have “profound” implications.

Coons referred to an interview that Barrett gave where she spoke of a balance shift if Merrick Garland, a federal appeals court judge nominated in 2016 by President Barack Obama, were elevated to the high court. Obama picked Garland after Justice Antonin Scalia’s death, but Republicans in the Senate refused give Garland a hearing, citing the presidential election that was months away that year.

Barrett told Coons she was referring in the interview to Garland’s judicial approach, not his more liberal views. Unlike the conservative Scalia, Garland was not an originalist, which refers to a way of interpreting the Constitution that focuses on the text and Founding Fathers’ intentions in resolving legal disputes. Originalists such as Scalia and Barrett argue that new legislation, rather than a new interpretation of the Constitution, is the best way to bring about social change.

“It would be away from one balance and toward another in terms of how judges think about the text,″ Barrett said.

Coons noted that Barrett, who claims Scalia as her mentor, would replace Justice Ruth Bader Ginsburg, who was not an originalist and was the court’s liberal leader. Barrett’s confirmation would shift the court’s previous 5-4 conservative majority to 6-3.

___

SOUNDS OF SILENCE

The hearing paused twice Wednesday because of audio problems in the Dirksen Senate Office Building. The sound in the hearing room cut out a little before 2 p.m. and was off for 40 minutes. It cut out again after the hearing resumed, this time for about 15 minutes.

The problem happened the first time just after Sen. Richard Blumenthal, D-Conn., asked Barrett whether she had gotten some rest after a long day of questioning Tuesday. “I did have a glass of wine. I’ll tell you I needed that at the end of the day,” she said.

On that point, “You have a right to remain silent,″ Blumenthal told Barrett.

___

WASHINGTON (AP) — Supreme Court nominee Amy Coney Barrett returns to Capitol Hill for a third day of confirmation hearings as senators dig deeper into the conservative judge’s outlook on abortion, health care and a potentially disputed presidential election — the Democrats running out of time to stop Republicans pushing her quick confirmation.

CLICK here to watch day 3 of the confirmation hear that begins at 8a.m. CDT

Wednesday’s session is set to be Barrett’s last before the Senate Judiciary Committee. She has been batting away questions in long and lively exchanges, insisting she would bring no personal agenda to the court but decide cases “as they come.”

Her nomination by President Donald Trump to replace the late Justice Ruth Bader Ginsburg has ground other legislative business to a halt as Republicans excited by the prospect of locking in a 6-3 conservative court majority race to confirm her over Democratic objections before Election Day.

“We’re going to fill this vacancy,” Sen. Lindsey Graham, R-S.C., the committee chairman, said late Tuesday after a nearly 12-hour session.

Graham said he appreciated that Trump had nominated a judge “who’s unabashedly pro-life, somebody who embraces their faith, but somebody who understands the difference between their personal views and judging.”

Barrett’s nomination has been the focus at a Capitol mostly shut down by COVID-19 protocols, frustrating Democrats who are virtually powerless to stop a judge from confirmation. They warn she will be seated on the court in time to cast a vote to undo the Affordable Care Act next month, causing millions of Americans to lose coverage during a pandemic.

“People are fed up,” said Sen. Dick Durbin, D-Ill., criticizing GOP priorities in forcing the Senate action as the country suffers from the pandemic and Congress squabbles over approving additional economic aid.

The 48-year-old appellate court judge declared her conservative views in often colloquial language, but she refused many specifics Tuesday. She aligns with the late Justice Antonin Scalia, a conservative mentor, and declined to say whether she would recuse herself from any election-related cases involving Trump and Democratic nominee Joe Biden.

“Judges can’t just wake up one day and say I have an agenda — I like guns, I hate guns, I like abortion, I hate abortion — and walk in like a royal queen and impose their will on the world,” Barrett told the committee during its second day of hearings.

“It’s not the law of Amy,” she said. “It’s the law of the American people.”

Trump seemed pleased with her performance. “I think Amy’s doing incredibly well,” he said at the White House departing for a campaign rally.

Judge Barrett's family including 6 of her children arrive for day 3 of the Senate confirmation hearing-image courtesy CSPAN
Judge Barrett's family including 6 of her children arrive for day 3 of the Senate confirmation hearing-image courtesy CSPAN

Trump has said he wants a justice seated for any disputes arising from his heated campaign against Biden, but Barrett testified she has not spoken to Trump or his team about election cases. Pressed by Democrats, she skipped past questions about ensuring the date of the election or preventing voter intimidation, both set in federal law, and the peaceful transfer of presidential power. She declined to commit to recusing herself from any post-election cases without first consulting the other justices.

“I can’t offer an opinion on recusal without short-circuiting that entire process,” she said.

A frustrated Sen. Dianne Feinstein, the top Democrat on the panel, all but implored the nominee to be more specific about how she would handle landmark abortion cases, including Roe v. Wade and the follow-up Pennsylvania case Planned Parenthood v. Casey, which confirmed it in large part.

“It’s distressing not to get a good answer,” the U.S. senator from California told the judge.

Barrett was unmoved. “I don’t have an agenda to try to overrule Casey,” she said. “I have an agenda to stick to the rule of law and decide cases as they come.”

She later declined to characterize the Roe v. Wade decision that legalized abortion as a “super-precedent” that must not be overturned.

Democrats had no such reticence.

“Let’s not make any mistake about it,” said California Sen. Kamala Harris, the Democratic vice presidential nominee, appearing remotely due to COVID concerns.

Allowing Trump to fill the seat with Barrett “poses a threat to safe and legal abortion in our country,” Harris said.

The Senate, led by Trump’s Republican allies, is pushing Barrett’s nomination to a quick vote before Nov. 3, and ahead of the latest challenge to the Affordable Care Act, which the Supreme Court is to hear a week after the election. Democrats warn that she would be a vote to undo the “Obamacare” law.

“I’m not hostile to the ACA,” Barrett told the senators.

The judge, accompanied by her family, described herself as taking a conservative, originalist approach to the Constitution. A former law professor, she told the senators that while she admires Scalia, she would bring her own approach.

“You would not be getting Justice Scalia, you would be getting Justice Barrett,” she declared.

Overall, Barrett’s conservative views are at odds with the late Ginsburg, a liberal icon. She would be Trump’s third justice.

Underscoring the Republicans’ confidence, Graham set an initial committee vote on the nomination for Thursday, the last day of hearings, which would allow final approval by the full Senate by the end of the month.

Protesters rallied outside the Senate building, unable to come inside the hearing room.

___