After Tuesday’s long day of senators’ questioning (and Barrett’s evading), the third day of the Amy Coney Barrett confirmation hearings and the final day of Q&A took place on Wednesday with more of the same.
Democrats remained focused on abortion rights and heath care, as the fate of both the Affordable Care Act (ACA) and Roe v. Wade hang in the balance.
Meanwhile, Republicans continued to praise Barrett’s status as a mother and attempted to convince voters she is not, in fact, a right-wing ideologue hand-picked by the Federalist Society to abolish the ACA, curb reproductive rights, undermine LGBTQ rights (including halting marriage equality), and loosen restrictions on corporate involvement in government.
On Wednesday, each of the 22 senators on the Senate Judiciary Committee had 20 minutes to question Barrett. Here are some of the highlights:
In his opening statement, chairman of the Judiciary Committee Sen. Lindsey Graham (R-S.C.) praised Barrett’s upcoming confirmation as a path-breaking victory for conservative women, who he said face harsher obstacles than liberal women.
“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,” said Graham.
Despite this, Barrett continued to evade questions on abortion and on Roe v. Wade in particular. (She did say on Tuesday the 1973 case was not a “super-precedent,” a case “so well settled that no political actors and no people seriously push for their overruling.”)
In response, on Wednesday, over 60 state prosecutors and attorneys general released a statement saying they will not enforce laws restricting abortion—even if Roe v. Wade is reversed with Barrett on the Supreme Court. The letter reads:
“Not all of us agree on a personal or moral level on the issue of abortion. And not all of us are in states where women’s rights are threatened by statutes criminalizing abortion. What brings us together is our view that as prosecutors we should not and will not criminalize healthcare decisions such as these—and we believe it is our obligation as elected prosecutors charged with protecting the health and safety of all members of our community to make our views clear.”
Affordable Care Act
Democrats continued to press the nominee on the ACA—such as Sen. Amy Klobuchar (D-Minn.), who noted that in 2017 Barrett had previously argued the ACA’s individual mandate was unconstitutional. She asked Barrett point-blank: “Did you ever write or speak out against the ACA?”
Barrett seemed frustrated by the question—”You’re suggesting this was like an open letter to President Trump. It was not”—and defended her past criticism, saying in 2017 she “was speaking as an academic,” not as a judge.
In a line of questioning between Barrett and Sen. Christopher A. Coons (D-Del.), Coons contrasted the judge’s record with that of the late Justice Ruth Bader Ginsburg and tried to tie Barrett to the views of her mentor, the late Justice Antonin Scalia, who publicly said he thought Griswold v. Connecticut—the 1965 case striking down a ban on contraception—was wrongly decided.
“I think Griswold is not going anywhere unless you plan to pass a law prohibiting couples, all people, from using birth control,” Barrett said on Wednesday—but declined to say anything further about whether or not states could make contraceptives illegal.
Frustrated, Coons responded by noting both Chief Justice John Roberts and Justice Clarence Thomas said during their confirmation hearings they agreed with the Court’s conclusion in Griswold.
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Sen. Richard Blumenthal (D-Conn.) said he was “stunned” and “disappointed” and that “a lot of Americans are scared” at Barrett’s inability to say that Obergefell v. Hodges—which guaranteed same-sex couples the right to marry—was correctly decided.
During questioning from Blumenthal, Barrett said she does not believe her views on climate change are relevant to the work she would do as a judge—despite the fact that the Supreme Court will review several environmental cases in the next few months.
Sen. Kamala Harris (D-Calif.) tried to pin her down on this issue again during her turn for questioning, and Barrett deflected again, calling climate change “politically controversial.”
Klobuchar questioned Barrett on whether she thought mail-in voting was essential, given the country is in the throes of a pandemic:
We’re in the middle of a global pandemic that is forcing voters to choose between their health and their vote. Are absentee ballots, or better known as mail-in ballots, an essential way to vote for millions of Americans right now?
Barrett again refused to answer: “That’s a matter of policy on which I can’t express a view.”
Klobuchar was visibly frustrated by the judge’s answer: “Okay, to me that just feels like a fundamental part of our democracy.”
Barrett also claimed she does not remember if she had ever voted by mail in the past, but knows some of her friends and family members have.
Appearing remotely, as she did on Tuesday, Harris later tried to pin down Barrett on voting rights, asking Barrett if she agreed with Chief Justice John Roberts’s opinion in Shelby County v. Holder, in which he wrote: “Voting discrimination still exists, no one doubts that.”
Barrett deflected, saying it was an issue that could come before the Court:
“I will not comment on what any justice said in an opinion, whether an opinion is right or wrong, or endorse that proposition.”
When Harris pressed her yet again, Barrett admitted, “I think racial discrimination still exists in the United States.”
During a different tense line of questioning, this time with Sen. Dick Durbin (D-Ill.) on the subject of restoring voting rights to felons, Barrett refused to answer whether the president could deny certain groups the right to vote.
Sen. Ted Cruz (R-Texas) took the opportunity to slam Democrats in favor of restoring voting rights to felons and, in an attempt to fear-monger, invoked the name of Charles Manson as a potential prison voter. (The infamous cult leader is, in fact, dead.)
Zack Ford, press secretary at Alliance for Justice, called out the game in a series of tweets:
For context, in 2019, Barrett dissented in a case, arguing that felons should be able to have guns, a right protected under the 2nd Amendment. She wrote:
“Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. … Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe.”
During questioning, Harris made the point that Barrett has sided with businesses over workers in 85 percent of relevant cases since joining the Circuit in 2017.
Immigration and Family Separation
Under questioning from Sen. Cory Booker (D-N.J.), Judge Barrett refused to opine on whether separating children from their parents at the border is wrong, calling it a matter of “hot political debate.”
Booker said his question involved “basic questions of human rights, human decency and human dignity,” saying, “I’m sorry that we can’t have a simple affirmation of what I think most Americans would agree on.”
Barrett’s Association With the Federalist Society
On Tuesday, Sen. Sheldon Whitehouse (D-R.I.) used every one of his 30 minutes to spell out in excruciating detail the deep ways groups like the Federalist Society and Judicial Crisis Network and their dark money have infiltrated its way into American politics—specifically into the judicial branch.
He tied the Federalist Society to the Republican party’s selection of federal judges, and said the group provided what Esquire’s Charles P. Pierce calls an “ideological assembly line” of conservatives to add to the judiciary.
Whitehouse continued on Wednesday down this train of thought.
While Whitehouse couldn’t pin Barrett down on her connections to the Federalist Society, he must have struck a cord with the Republicans on the committee: Immediately following Whitehouse, Sen. Ted Cruz (R-Texas), spent much of his time attempting to discredit Whitehouse’s characterization of Republican dark money as “red thread conspiracy theories” and just another installation of a partisan culture war. Sen. Ben Sasse (R-Neb.) similarly dismissed Whitehouse’s visual aids as “Beautiful Mind charts.”
The Rule of Law and Checks on the Executive Branch
Sen. Patrick Leahy (D-Vt.) asked Barrett repeatedly about her views on executive power—more specifically, whether or not the Supreme Court had the power to enforce their rulings if a president disobeyed.
The nominee admitted, “No one is above the law,” but repeatedly deflected, then ultimately said, “The Supreme Court cannot control whether or not the president obeys.”
Leahy also asked Barrett whether a president could pardon himself, as Trump has claimed.
Her (non-)answer: “That question may or may not arise, but that is one that calls for legal analysis of what the scope of the pardon power is.”
What to Expect on Thursday, the Final Day of Hearings
Sen. Dianne Feinstein (D-Calif..), the leading Democrat on the Senate Judiciary Committee, announced several witnesses to appear before the committee on Thursday.
The witnesses will discuss the Affordable Care Act, reproductive rights and voting rights, said Feinstein in a press release:
- Stacy Staggs: “a mother of 7-year old twins. Stacy’s twins have multiple pre-existing conditions due to their premature birth and rely on the Affordable Care Act’s protections. Stacy works with Little Lobbyists, a nonprofit started by families with children who have complex medical needs. Stacy will discuss the devastating effects on her family if the Supreme Court overturns the Affordable Care Act.”
- Dr. Farhan Bhatti: “a family physician and CEO of Care Free Medical, a nonprofit clinic. Dr. Bhatti will discuss the harm to his patients if the Supreme Court overturns the Affordable Care Act.”
- Crystal Good: “fought for her right to obtain an abortion at age 16. Crystal will speak about the importance of reproductive rights and justice.”
- Kristen Clarke: “president and executive director of the Lawyers’ Committee for Civil Rights Under Law. Kristen will speak about the importance of voting rights and other civil rights protected by the Constitution and federal law.”
On the other side of the aisle, Republicans will call:
- Thomas Griffith, a former Court of Appeals judge who recently wrote an opinion piece for Bloomberg titled, “Barrett’s Religion Won’t Dictate Her Rulings.”
- Saikrishna B. Prakash, a conservative legal expert and professor of law at the University of Virginia.
- Amanda Rauh-Bieri, a former Barrett clerk and current lawyer practicing in Michigan.
- Laura Wolk, a former student of Barrett’s who later become the first blind woman to clerk at the Supreme Court.
The confirmation hearing process will then conclude. Democrats have the power to delay the nomination vote by one week, but Republicans have all the votes they need—meaning the vote to approve her nomination in the committee will take place Oct. 22.
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