Amy Coney Barrett Confirmation Hearing: Day 2 Highlights

Supreme Court Justice nominee Judge Amy Coney Barrett participates in her Senate Judiciary Committee confirmation hearing on October 12. Photo: Shawn Thew/Getty Images

On Monday, the Senate Judiciary Committee kicked off four days of confirmation hearings for Amy Coney Barrett, President Trump’s nominee to replace Ruth Bader Ginsburg on the Supreme Court. Highlights included Barrett making a dubious claim about her judicial neutrality, loose mask usage among GOP senators, and for some reason, a reference to the Mos Eisley Cantina. Next up: two days of questioning by senators.

Barrett’s confirmation has always looked like a done deal, as Senate Republicans vowed to confirm Trump’s pick even before he announced that he had settled on Barrett. But in an ironic turn, the Rose Garden ceremony celebrating Barrett’s nomination raised doubts about Republicans’ ability to confirm her before the November 3 election, as it appears to have been a COVID-19 superspreader event. However, while there are only 21 days until Election Day and a number of GOP leaders are recovering from COVID, it still seems extremely likely that Barrett will be the next Supreme Court justice. We’ll follow this week’s proceedings here, with updates appearing in reverse chronological order.

Barrett couldn’t even give a clear answer on whether the president can delay an election

When Dianne Feinstein asked if “the Constitution gives the president of the United States the authority to unilaterally delay an election under any circumstances,” Barrett responded:

Well, Senator, if that question ever came before me, I’d need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion-writing process … So, you know, if I give off the cuff answers, then I would be basically a legal pundit, and I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind.

But as Vox’s Aaron Rupar notes, the answer is actually pretty simple:

… there’s really no need for “an open mind” when it comes to questions about whether Trump or any other president can delay the election, because the law is clear: the president doesn’t have this power.

As my colleague Ian Millhiser detailed in July after Trump posted a tweet suggesting the country should “Delay the Election” due to unfounded fears of election fraud, the only way the date of the election could be changed would be through an act of Congress — and there’s no way that the Democratic-controlled House of Representatives would go along with that.

Barrett would not commit to recusing herself from upcoming ACA case or a potential election dispute

When asked by Graham if she would recuse herself from a case concerning the Affordable Care Act that the Supreme Court is set to consider just after the election, Barrett said she couldn’t say as that is a “legal issue,” and “not a question I could answer in the abstract.”

Later Barrett was similarly vague when Senator Patrick Leahy asked if she would weigh in on any election disputes that might arise – an important question, as Trump said recently that he needs nine justices on the Court before Election Day as “I think this will end up in the Supreme Court.”

Barrett did say that she has not promised Trump or anyone in his administration that she will vote a certain way on the Affordable Care Act, or any other matter. “No one ever talked about any case with me,” she said. Barrett added later, “Just as I didn’t make any prior commitments and was not asked to make any commitments on the executive branch side, I can’t make any prior commitments to this body either. It would be inconsistent with judicial independence.”

Barrett would not say Roe v. Wade was wrongly decided

But as Senator Elizabeth Warren wrote for The Cut recently, we know where she stands on abortion.

And there’s no question about how Hawley will vote on her nomination.

This is Barrett’s go-to answer

The nominee paraphrased Ruth Bader Ginsburg as she dodged various questions, saying she would offer “no hints, no previews, no forecasts” about how she might rule in cases that come before the Supreme Court.

Graham has already scheduled a vote on Barrett

On Monday, Lindsey Graham described the proceedings as hearings to “confirm” Barrett, rather than saying the committee would consider her nomination. Graham isn’t being very coy on scheduling matters either; he’s already scheduled a committee vote on Barrett’s nomination for Thursday, the day the hearings are set to conclude. As the Washington Post explains, in the past at least several days have passed between the conclusion of hearings and the committee vote on a Supreme Court nominee.

“It’s another example of Republicans ignoring rules and tradition so they can rush this nominee through before the election — and in time to supply a vote to strike down the Affordable Care Act,” Senator Dianne Feinstein said.

Barrett dodges questions about abortion rights

Under questioning from Senator Dianne Feinstein, the Judiciary Committee’s ranking Democrat, Barrett refused to say whether she thinks Roe v. Wade was wrongly decided. Her record suggests she does.

Barrett describes her “originalist” views

As New York’s Eric Levitz explains, this is “less a humble method for settling constitutional disputes than a parlor trick for recasting the conservative movement’s unpopular agenda as the minimum demanded by constitutionality.”

Graham has a message for the voters at home

Lindsey Graham, who is in a tough reelection fight, kicked off day two with a diatribe about why Obamacare is bad for South Carolina.

Republicans open day two by doubling down on casual attitude toward masks

Monday’s hearing is over, tomorrow’s will be much longer

Graham says no one can make him take a COVID-19 test

The world’s greatest deliberative body of scum and villainy

So this just happened:


Kennedy also had this to add:

An excellent primer on on originalism

Vox’s Ian Millhiser has written a deep dive on the tenets, history, and consequences of originalism — the theory of the Constitution that Barrett believes in, as do Justices Clarence Thomas and Neil Gorsuch (as did Barrett’s mentor, Justice Antonin Scalia):

One of the primary appeals of originalism is that it purports to constrain judges by requiring them to follow a written text even when they dislike the outcomes that text commands. “The main danger in judicial interpretation of the Constitution,” Justice Antonin Scalia said in a 1988 lecture explaining why he is an originalist, “is that the judges will mistake their own predilections for the law.”

At least in theory, originalism prevents judges from making this mistake by lashing them to the unchanging meaning of a written document. And, at least on the surface, its core insight that judges are bound by the Constitution’s words seems obvious: Of course judges should obey the text of the Constitution!

In reality, however, following the text of the Constitution is more complicated than it sounds. … As it turns out, originalism potentially gives judges — or, at least, Supreme Court justices — tremendous discretion to decide whether to upend foundational legal principles that few Americans would care to see unsettled. That might be the entire point.

Looking ahead to the Court with Barrett, he concludes:

[W]hile a Supreme Court with Barrett on it will not have an originalist majority, it will have a very conservative majority. And that means originalism could play a major role in justifying decisions that shift the law dramatically to the right. Originalism provides an alternative source of legitimacy for justices who believe that past decisions were wrongly decided, and who need to offer a compelling justification for overruling those decisions.

Ultimately, the choice of whether to use originalist arguments to wreak havoc over centuries of existing law rests entirely with the justices themselves. And, with a 6-3 Republican Supreme Court, the majority is unlikely to show much restraint.

Read the rest here.

Democrats have not mentioned Barrett’s religion today

But GOP senators are still defending her against their nonexistent attacks.


The Supreme Partisan Court

Klobuchar, Blumenthal zero in on post-election

Yes, the American Bar Association approved Barrett

The organization, which always weighs in on SCOTUS nominees, gave Barrett its highest rating (“well qualified”) ahead of the hearings — and expect Republicans to mention that a lot. Per CNN:

“A substantial majority of the Standing Committee determined that Judge Barrett is ‘Well Qualified,’ and a minority is of the opinion that she is ‘Qualified’ to serve on the Supreme Court of the United States,” Randall D. Noel, chair of the ABA’s Standing Committee on the Federal Judiciary, wrote in a letter [on Sunday.]

The ABA focuses on a person’s “professional qualifications” and does not take into consideration their “philosophy, political affiliation or ideology” when making its determinations.

Meadows has reportedly spent more time with Trump during his illness than anyone

Mike Lee removes his mask to speak, 10 days after testing positive for COVID-19

While senators had the option to appear at the hearing remotely, Senator Lee chose to show up in person. He wore a surgical mask when he arrived at the hearing, but he removed it when it was his turn to address the room.

Lee’s office released a letter from his physician, United States Congress Dr. Brian Monoahan, saying that he’s been cleared to attend the hearing. “Based upon current CDC guidelines, you have met criteria to end COVID-19 isolation for those with mild to moderate disease,” the letter said. “Specifically, it has been greater than 10 days since symptom onset, you have had no fever in absence of fever reducing medication for at least 24 hours, and your other symptoms have improved. The CDC does not recommend repeat SARS-CoV-2 PCR testing if these criteria are met.”

Senator Thom Tillis, who tested positive for COVID-19 on the same day as Lee, opted to appear remotely, as did Senator Ted Cruz, who is quarantining after being exposed to Lee.

Democrats at the hearing reiterated their concerns about coronavirus spreading among senators attending in person.

“I do not know who has been tested, who should be tested who is a danger, what contact tracing has been done on infected and exposed senators and staff,” Democratic Senator Sheldon Whitehouse said. “Nothing. The whole thing, just like Trump, is an irresponsible botch.”

Democrats focus on threat to the Affordable Care Act

Every Democratic senator speaking at the hearing brought up the threat Barrett poses to the Affordable Care Act. The Supreme Court is set to hear a case on the health care law the week after the election. “We will examine the consequences if — and that’s a big if — Republicans succeed in rushing through this nomination before the next president takes office,” Senator Dianne Feinstein said in her opening remarks.

Lindsey Graham drops the charade

In his opening statement, Graham described the proceedings as “the hearing to confirm Judge Amy Coney Barrett to the Supreme Court,” rather than saying senators would consider her nomination.

“This is probably not about persuading each other unless something really dramatic happens,” Graham added. “All the Republicans will vote yes, all the Democrats will vote no.”

It seems the White House COVID outbreak has not led to more caution among GOP senators

A preview of Barrett’s opening statement

The text of Barrett’s opening statement was release before the start of the hearing. She plans to say that she will follow in the footsteps of her mentor, the late Justice Antonin Scalia (though she may actually hold more extreme views):

I also clerked for Justice Scalia, and like many law students, I felt like I knew the justice before I ever met him, because I had read so many of his colorful, accessible opinions. More than the style of his writing, though, it was the content of Justice Scalia’s reasoning that shaped me. His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were. Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best known opinions, that is what it means to say we have a government of laws, not of men.

In the statement’s key section, Barrett puts forth the fiction that conservative originalists like herself are apolitical:

Courts have a vital responsibility to enforce the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try.

On today’s agenda: many opening statements

The hearings opened at 9 a.m. ET with an opening statement from Judiciary Committee Chairman Lindsey Graham, followed by remarks from ranking Democrat Dianne Feinstein. Now the 20 other committee members will each get 10 minutes for opening statements, followed by remarks from Barrett.

Another superspreader event?

There are concerns that COVID-19 could spread among members of the Senate Judiciary Committee, who are holding this week’s hearings. Two Republican committee members, Senators Thom Tillis and Mike Lee, were diagnosed with COVID-19 following the Rose Garden event. Judiciary Chairman Lindsey Graham interacted with Lee, but he says he tested negative for COVID-19 last week – though he refused to take another test before his debate with Democrat Jaime Harrison on Friday, leading to a format change.

NBC News notes that Senator Kamala Harris, Joe Biden’s running mate, will participate remotely after Graham refused to delay the hearing:

Democrats on the 22-member Judiciary Committee, including vice presidential candidate Sen. Kamala Harris, say they’re concerned the hearings could be another superspreader. Three of them asked Graham in a letter last week to delay the hearing to “ensure that we don’t risk the health and safety of fellow Senators, Senate staff, other Senate employees, as well as Judge Barrett and her family.”

A spokesman for Harris said Sunday that she plans to participate remotely from her Senate office.

A slight majority of American voters oppose holding confirmation hearings before the election

A new Washington Post-ABC News poll found voters would prefer to let the next president decide who fills Ruth Bader Ginsburg’s seat. Per the Post:

The national poll finds 44 percent of registered voters say the U.S. Senate should hold hearings and vote on Barrett’s nomination, while 52 percent say filling this Supreme Court seat should be left to the winner of the presidential election and a Senate vote next year. Support for leaving the decision to the next president is down from 57 percent in a Post-ABC poll last month that asked whether the Senate should confirm Trump’s nominee, who had not yet been named.

Voters hold more lopsided views on the court’s ruling in the 1973 landmark abortion case Roe v. Wade, with 62 percent saying the Supreme Court should uphold the decision that guarantees a woman’s right to abortion, while 24 percent say it should be overturned and a sizable 14 percent have no opinion.

Amy Coney Barrett Confirmation Hearing: Day 2 Highlights