Judge Barrett: Everything that Justice Scalia has said is not necessarily something I would agree with or do
Delaware Senator Chris Coons questions Judge Amy Coney Barrett during the Supreme Court confirmation hearing.
Amy Coney Barrett staked out on Wednesday her judicial independence — even from her mentor — during another day of intense questioning on Capitol Hill where she tried to assure senators she would be an impartial jurist who would weigh opposing views fairly.
President Trump's Supreme Court nominee already distanced herself from Trump's tweets on Tuesday — arguing she would be nobody's "pawn." But on Wednesday, Barrett also distinguished herself from Justice Antonin Scalia, the late conservative icon for whom Barrett clerked.
Since Barrett admittedly prescribes to the same originalist judicial philosophy that Scalia championed, Democrats claim that Scalia's past votes against Obamacare, gay marriage and the Voting Rights Act would be hers too.
But under questioning from Sen. Chris Coons, D-Del., Barrett told the senator it's unfair to expect she would decide a case just as her mentor had done.
"I hope that you aren't suggesting that I don't have my own mind," Barrett said, "or that I couldn't think independently or that I would just decide like, 'Let me see what Justice Scalia has said about this in the past.'
"I assure you I have my own mind."
Supreme Court nominee Amy Coney Barrett speaks during a confirmation hearing before the Senate Judiciary Committee, Wednesday, Oct. 14, 2020, on Capitol Hill in Washington. (Demetrius Freeman/The Washington Post via AP, Pool)
Coons was making the case that adding Barrett to the court to fill the seat vacated by the death of Justice Ruth Bader Ginsburg, a liberal icon, will have a "profound" impact to swing the court in the conservative direction with a 6-3 majority.
Coons brought up a poster board of roughly 120 Supreme Court cases that were decided by a 5-4 majority where Ginsburg was in the majority and Scalia dissented.
Had Barrett been on the court instead of Ginsburg the difference in case outcomes would have had "huge consequences" on everyday Americans on issues ranging from health care to consumer protections and gun safety and immigration, Coons said.
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"My core concern here, your honor, is that your confirmation may launch a new chapter of conservative judicial activism, unlike anything we've seen in decades," Coons said. "And so with all due respect, I will be voting against your confirmation."
Fox News’ team coverage provides insight into the Supreme Court confirmation hearing for Judge Amy Coney Barrett.
"I'm really impressed, thank you," Senate Judiciary Committee Ranking Member Dianne Feinstein told Supreme Court nominee Amy Coney Barrett on Wednesday as the marathon hearing for the potential future justice continues to focus on how she might rule on an upcoming challenge to the Affordable Care Act (ACA).
Feinstein's comment came after Barrett went into a detailed definition of "severability," which Barrett on Tuesday described as the central issue in California v. Texas, the ACA challenge set to be argued before the court on Nov. 10. Democrats on Tuesday repeatedly asked Barrett to weigh in on that case and whether she was asked by President Trump to rule in a certain way on the case.
Barrett would not answer those questions as the matter is pending before the court, as Democrats further amplified their worries that she would overturn the ACA entirely, as the red states behind the case are asking. But a different angle of questioning by Feinstein, D-Calif., on the issue allowed Barrett to delve deeper on the "severability" issue without weighing in on the specific case. And her answer may indicate that she could be receptive to arguments by blue states that if one part of the ACA is ruled unconstitutional, the rest of it should stand.
"I think I can say without expressing disagreement or agreement for the reasons I said yesterday not being able to grade precedents… even by Justice Scalia's view the issue would be different in California v. Texas for two reasons," Barrett said. "One, Justice Scalia thought two provisions of the [law] were unconstitutional. So if you picture severability being like a Jenga game, it's kind of if you pull one out… will it all stand or if you pull two out will it still stand?"
There is only one potentially unconstitutional provision at issue in California v. Texas.
Barrett added: "I think the doctrine of severability as it's been described by the court serves a valuable function of trying not to undo your work when you wouldn't want a court to undo your work. Severability strives to look at a statute as a whole and say 'would Congress have considered this provision so vital that kind of in the Jenga game, pulling it out, Congress wouldn't want the statute anymore?'"
It's after that answer when Feinstein said she was impressed with Barrett, underscoring the increased civility during the Barrett hearings compared to the 2018 hearings for Justice Brett Kavanaugh.
Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., also asked Barrett about severability, and Barrett said that when judging cases "the presumption is always in favor of severability."
The Wednesday proceedings, of course, were not entirely different from Tuesday's.
Barrett continued to stonewall Democrats when asked directly to opine on laws and cases that might come before her as a justice, specifically when Feinstein asked Barrett about the Supreme Court case Shelby County v. Holder, which had to do with the Voting Rights Act.
Sen. Patrick Leahy, D-Vt., also asked Barrett whether President Trump would have a right to pardon himself. Barrett responded that "so far as I know that question has never been litigated… because it would be opining on an open question… it's not one in which I can offer a view."
Leahy asked Barrett about the Emoluments Clause and whether she could express an opinion on it. Barrett responded that "The Emoluments Clause, it's under litigation … as a matter that's being litigated it's very clear that it's one I can't express an opinion on."
Sen. Dick Durbin, D-Ill., asked Barrett about her non-response to the possibility Trump could claim the right to delay an election.
"I've given that response to every hypothetical I've been asked," Barrett said. "I do that because it would be inappropriate for me to make a comment."
Durbin also slammed Barrett over the fact Trump has said he wants a justice on the Supreme Court to overturn the ACA.
"Why, what's the hurry?" Durbin said of the nature of this week's hearings. "Because there is a political agenda here and whether you are privy to it, party of it notwithstanding, it has to do with the Affordable Care Act."
Graham, however, Wednesday defended Barrett's non-answers, which are traditional for Supreme Court nominees during their confirmation hearings, quizzing Barrett on a number of issues that Democrats brought up Tuesday, from in-vitro fertilization to guns to abortion to gay marriage. Barrett continued not to take stances on the issues.
And Republican senators continued to vocally support Barrett's confirmation, with Graham lauding her potential to be a role model for young conservative women.
"It will be a great signal to all young women who share your view of the world that there's a seat at the table for them," Graham said. He later added that Barrett is in the same league as Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Brett Kavanaugh and "in my view, this is exactly where you should be going, to the Supreme Court."
The second day of hearings went more than 11 hours and the third day on Wednesday is expected to last quite long as well, with all 22 senators on the committee getting 20 minutes to question Barrett, with potential 10-minute rounds of questioning to follow.
Judge Amy Coney Barrett reflects on Scalia-Ginsburg friendship
Supreme Court nominee responds to question from Sen. Ben Sasse, R-Neb., about her time clerking for Justice Antonin Scalia.
Supreme Court nominee Judge Amy Coney Barrett clerked for the late Justice Antonin Scalia early in her legal career, and during her confirmation hearing on Tuesday she discussed the friendship he had with Justice Ruth Bader Ginsburg, and how Scalia recommended the liberal icon for the high court.
Sen. Ben Sasse, R-Neb., asked Barrett about the friendship between the conservative and liberal heavyweights and how it impacted her, leading her to fondly recall their relationship.
LIVE UPDATES: JUDGE AMY CONEY BARRETT FACES SENATE CONFIRMATION HEARING
“[W]hen the vacancy came up … Justice Scalia recommended her even though they had been together on the D.C. Circuit–that’s where they got to know each other–and he knew that she had a different jurisprudential approach," Barrett said. "And you know a lot has been said in the weeks since Justice Ginsburg died about that friendship because I think it speaks so well to both of their characters that despite the fact that they had such great differences and they could fight with the pen, when they were socializing, when they were outside of the opinion-writing world they had respect and affection for one another. And that’s how I try to live my life. "
Barrett went on to say that in her personal experiences she does not let political differences stand in the way of friendships and cautioned against focusing too much on a person's political views.
"You know I have friends who disagree with me vehemently about all kinds of things but I think that is dehumanizing if we reduce people to the political or policy differences that we might have with one another," she said.
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History will tie Barrett to both of the judicial stalwarts. She clerked for Scalia in 1998 and if she is confirmed to the Supreme Court she will fill the vacancy that opened upon Ginsburg's death.
Amy Coney Barret’s motto seems to be keep calm and carry on: Ken Starr
Former Independent Counsel Ken Starr says Amy Coney Barrett has shown in day two of her confirmation hearing that ‘she is very knowledgeable about the law.’
The Democrats have been doing a lot of projecting recently. Consider their worry that President Trump will refuse to accept the legitimacy of the 2020 election.
Now they are projecting their "living Constitution" judicial philosophy onto Supreme Court nominee Amy Coney Barrett.
Democrats and their allies worry that Judge Barrett, a devout Catholic, will impose her personal values and beliefs on the law. That's exactly what Democrats want the progressive judges they appoint to do. So it's a classic case of projection.
While the left is panicking that Barrett, if confirmed, will lead the Supreme Court to repeal Roe v. Wade and otherwise enact the teachings of the Catholic Church, the truth is that Judge Barrett is a committed textualist who can be counted on to interpret statutes and the Constitution as written.
JEREMY DYS: AMY CONEY BARRETT'S NOMINATION WON'T BE DERAILED BY DEMOCRATS' POLITICAL THEATER
As she said in a 2019 lecture, "The law is comprised of words—and textualists emphasize that words mean what they say, not what a judge thinks that they ought to say. … Fidelity to the law means fidelity to the text as it is written."
In her opening statement on Monday, Judge Barrett emphasized that “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people," not by the courts.
Textualism gives effect to this ideal because the political branches speak through the words of the statutes they write, the constitutional amendments they enact, and the original Constitution they gave us in 1787.
Senate Democrats will nonetheless do their best this week to frighten Americans about the prospect of Amy Coney Barrett sitting on the Supreme Court. They will likely fail, because a justice who leaves policy decisions and value judgments to the people's representatives is exactly what most Americans want.
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The anxiety on the left is accurately summed up by Elizabeth Bruenig, an opinion writer for the New York Times, who writes of concerns about whether Judge Barrett "will be able or willing to resist the expectations of her church when it comes to cases involving relevant moral issues, and whether she will cater to the wishes of People of Praise, a mostly Catholic ecumenical organization with a distinctly traditional bent, of which she is a member."
Bruenig worries that "Roman Catholicism does not readily distinguish between public and private moral obligations," a projection of progressives' difficulty distinguishing between what the law is and what they would like it to be.
This paranoia that Catholic judges will be unable or unwilling to separate their Catholic beliefs from their work on the bench is not new.
A justice who leaves policy decisions and value judgments to the people’s representatives is exactly what most Americans want.
At the 2003 confirmation hearing for Bill Pryor, now a judge on the U.S. Court of Appeals for the Eleventh Circuit, Democrats on the Senate Judiciary Committee told him it was hard to believe that his "very, very deeply held" Catholic beliefs would not "deeply influence" his interpretation of the law.
Those same Democrats were enraged when the Committee for Justice called them out with ads featuring a picture of shuttered courthouse doors and a sign reading “Catholics need not apply.”
During Barrett's 2017 confirmation hearing for the Seventh Circuit, Sen. Diane Feinstein charged that Catholic "dogma lives loudly within you. And that's of concern when you come to big issues."
The following year, at Brian Buescher's hearing for a federal district judgeship, Sens. Kamala Harris and Mazie Hirono subjected him to similar grilling about his association with the Knights of Columbus, a Catholic fraternal and philanthropic group.
At Judge Barrett's hearing this week, Senate Democrats may steer clear of such blatant Catholic bashing this close to an election. But at very least, they'll insinuate that her Catholic dogma will spill over into her work as a Supreme Court justice.
To understand why Democrats make this assumption about Barrett and other Catholic judges, you need to understand the left's judicial philosophy: living constitution theory. It views the Constitution and even statutes as documents that evolve to adapt to changes in values, culture and politics. As Professor of Law Gerald Ratner of the University of Chicago explains:
"If the Constitution is not constant … then someone is changing it, and doing so according to his or her own ideas about what the Constitution should look like. … So a living Constitution becomes … just some gauzy ideas that appeal to the judges who happen to be in power at a particular time and that they impose on the rest of us."
When Democrats project this philosophy onto Barrett, they conclude that she too will use her power as a Supreme Court justice to impose her personal values on us, including those which spring from Catholicism.
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Not only are Democrats skeptical that a conservative jurist can interpret the law as written, they also see that approach as a threat to their nearly century-long project of using judicial activism to mold the Constitution into what they want it to be. For example, pointing out that no right to abortion can be found anywhere in the words of the Constitution undermines Roe v. Wade.
When Senate Democrats tell you this week that Judge Barrett's Catholicism will stand in the way of her dispassionately applying the law, remember that it's the last thing they want.
Amy Coney Barrett on ObamaCare: ‘I’m not hostile to the ACA’
Senators question Amy Coney Barrett on her stance on the Affordable Care Act.
As Judge Amy Coney Barrett was grilled before the Senate Judiciary Committee on Tuesday, observers noted she responded to hours of questioning on judicial matters without using any notes.
President Trump’s conservative nominee relied on her memory alone for the lengthy questioning process during the second day of her Supreme Court confirmation hearing.
After hours of answering questions on her legal philosophy and recalling her own judgments and those of other courts, Sen. John Cornyn, R-Texas., asked Barrett about how she prepared.
“You know most of us have multiple notebooks and notes and books and things like that in front of us,” Cornyn said. “Can you hold up what you’ve been referring to in answering our questions?”
“Is there anything on it?” Cornyn asked.
Barrett cracked a smile and held up a blank notepad that has been sitting in front of her.
Supreme Court nominee Amy Coney Barrett holds up her notepad as she speaks during her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, Tuesday, Oct. 13, 2020. (Tom Williams/Pool via AP)
“The letterhead that says ‘United States Senate,'” she responded as giggles can be heard echoing throughout the room.
“That’s impressive,” Cornyn said.
Most social media users agreed.
“It's common to write down questions since Senators often ask 12 in a row and expect complete answers to all,” one user wrote.
Another said: “I am shooketh by how brilliant this woman is.”
Barrett, 48, was nominated last month to fill the Supreme Court seat left vacant by the death of Justice Ruth Bader Ginsburg.
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Barrett was a law clerk for the late Justice Antonin Scalia from 1998 to 1999. She has served as a judge on the U.S. Court of Appeals for the Seventh Circuit since 2017.
Amy Coney Barrett answers question on whether she’d be a ‘female Scalia’
Supreme Court nominee Judge Amy Coney Barrett responds to question from Senate Judiciary Committee Chairman Lindsey Graham, R-S.C.
Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., kicked off the question-and-answer portion of Supreme Court nominee Judge Amy Coney Barrett's confirmation hearing by zeroing in on her judicial philosophy, as well as comparisons to the late conservative icon Justice Antonin Scalia.
Barrett has described herself as a constitutional originalist, and Graham began his questioning by having the nominee explain what that means in plain English.
"So in English, that means that I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it," Barrett said. "So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it."
Graham then referenced Scalia, for whom Barrett clerked early in her career, asking how she would react to being called a female version of Scalia.
"I would say that Justice Scalia was obviously a mentor, and as I said when I accepted the president’s nomination, that his philosophy is mine too," Barrett said. "You know he was a very eloquent defender of originalism, and that was also true of textualism, which is the way that I approach statutes and their interpretation."
Barrett further explained that just like an originalist view of the Constitution, a textualist view of statutes means that a judge looks at a law as it was written, and not by imposing their own meaning. She did note, however, that originalists and textualists can have different views of what those words mean, and that just because she and Scalia have the same philosophy, they are not the same person.
Supreme Court nominee Amy Coney Barrett speaks during a confirmation hearing before the Senate Judiciary Committee, Tuesday, Oct. 13, 2020, on Capitol Hill in Washington. (AP Photo/Susan Walsh, Pool)
"I want to be careful to say that if I’m confirmed you would not be getting Justice Scalia, you would be getting Justice Barrett," she said. "And that’s so because originalists don’t always agree, and neither do textualists."
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Barrett illustrated her point by referencing the disagreements Scalia had with Justice Clarence Thomas, which showed that originalism is "not a mechanical exercise."
The originalist approach is usually supported by Republicans, who have warned against having judges who take a more activist approach to the law by interpreting it through an ideological lens. Barrett said that she is capable of putting her personal views aside and applying the law as it was written.
Washington Examiner chief political correspondent Byron York and Democratic strategist Laura Fink on Amy Coney Barrett’s Supreme Court confirmation hearing and packing the court.
Democrats, since Amy Coney Barrett was announced as the Supreme Court nominee, have hammered the message that if she is confirmed she could be the deciding vote in California v. Texas, a constitutional challenge to the Affordable Care Act (ACA) being pushed by red states who say the individual mandate in the law is unconstitutional.
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President Trump the day after he announced Barrett's nomination said he is rooting for the ACA, commonly known as ObamaCare, to be struck down.
"Obamacare will be replaced with a MUCH better, and FAR cheaper, alternative if it is terminated in the Supreme Court. Would be a big WIN for the USA!" Trump tweeted.
DEMS FRAME AMY CONEY BARRETT AS THREAT TO OBAMACARE DURING CONFIRMATION HEARING
Barrett's pre-judicial writings were in fact critical of a 2011 case upholding the ACA's constitutionality by reading the individual mandate as a tax. But the demise of the may be far less likely than Democrats would have voters believe – or as the president would like.
That's because of the "severability doctrine."
California v. Texas and the individual mandate
California v. Texas stems from a case brought by a coalition of red states saying the ACA is unconstitutional because the individual mandate that Americans buy health insurance is no longer associated with a financial penalty. In the 2011 case Barrett has been critical of, Chief Justice John Roberts upheld the ACA's constitutionality by reading the financial penalty associated with not buying health insurance as a tax rather than a fine. The move rankled conservatives who'd hoped to see former President Obama's signature legislative achievement fall.
But in 2017 Congress eliminated the financial penalty for not buying health insurance while leaving the actual provision that requires people to buy health insurance — the individual mandate — in place. This, the red states behind the legal challenge say, makes it an unconstitutional mandate to purchase a certain product, even if there is no enforcement mechanism. Congress cannot force people to buy insurance "any more than it can order them to buy a new car or broccoli," the red states say in a brief.
"The only reason that [the individual mandate] survived was because it was 'fairly possible' to read its minimum-essential-coverage mandate as the trigger for a tax," the brief continues. Because of Congress' 2017 action, however, that is no longer possible, the red states say.
SCHUMER SAYS DEMOCRATS WON'T GIVE GOP QUORUM TO ADVANCE BARRETT NOMINATION
Because four Republican-appointed justices dissented in the 2011 case, many reasonably conclude the court, in light of the new facts, is more likely to say the individual mandate is unconstitutional if Barrett is confirmed and the court has a 6-3 Republican-appointed majority,
But when a court finds one provision of a law unconstitutional, it will also analyze whether or not that part of the law is so central to its legislative purpose that the entire rest of the law must fall — its severability.
At an earlier stage of this case, a federal district court judge concluded the individual mandate was not severable from the rest of the ACA. The judge's opinion concluded that "the absence of the [individual mandate] would undercut Federal regulation of the health insurance market" that relied on all Americans being insured.
An appeals court, however, said the district court's ruling on severability was "incomplete" and ordered it to go through the law with "a finer-toothed comb." That move was circumvented when the Supreme Court agreed to hear an appeal of the case by blue states who stepped in to defend the ACA in light of the Trump administration's decision to take a position against upholding the law.
TRUMP ADMINISTRATION TAKES AIM AT OBAMACARE IN SUPREME COURT BRIEF
The blue states, led by California, argue that the individual mandate sans the financial penalty is constitutional. But even if the Supreme Court finds that it is not, it should rule that it is severable and the rest of the law should stand, they say.
"The [Tax Cuts and Jobs Act] reduced to zero the amount of the alternative tax imposed by [the individual mandate]. That amendment 'declawed the coverage requirement without repealing any other part of the ACA,'" a brief for the blue states reads. "In other words, the statutory scheme currently in effect—which was adopted by both Houses of Congress and signed into law by the President—makes the minimum coverage provision effectively unenforceable while preserving the rest of the ACA."
The blue states add: "The statutory text thus gives us 'unusual insight into Congress’s thinking…' It manifests 'Congress’ intent that' the balance of the ACA 'should survive in the absence' of an enforceable minimum coverage provision."
The red states and the Trump administration dispute this and argue that the entire ACA should be overturned. But some experts say it's quite possible that at least some Republican-appointed justices — perhaps even Barrett herself — could side with the blue states on severability and leave almost all of the ACA, including its protections for people with preexisting conditions, in place.
"It is entirely unclear how Barrett would vote on the technical issue of severability," Jonathan Turley, a law professor at George Washington University, said Monday. "Other conservatives like Roberts and Kavanaugh are expected to vote in favor of severing the individual mandate from the rest of the ACA."
Jonathan Adler, a law professor at Case Western Reserve University Law School, advanced the same view in an article for Reason in May. That article cited a brief he and three other academics filed in California v. Texas arguing that no matter what the court concludes, the individual mandate should be severable.
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"Under the settled approach to severability that this Court has followed consistently for more than 100 years, the question here is not debatable: the mandate is severable from the rest of the ACA," Adler and his co-authors wrote. "Any other conclusion would be a judicial usurpation of Congress’s lawmaking power."
The Supreme Court has yet to even hear oral arguments on California v. Texas, which are scheduled for Nov. 10, so there's been no indication from the sitting justices on how they would rule, as is often the case based on the questions asked during the oral argument sessions.
But the fate of the ACA and its insurance exchanges and protections for those with preexisting conditions — even assuming Barrett is confirmed to the Supreme Court — is far from sealed.
How ugly will Judge Amy Coney Barrett’s confirmation process get?
Former Whitewater Independent Counsel Ken Starr gives his analysis on ‘Your World’
Posterboard pictures and a children’s book about the late Justice Ruth Bader Ginsburg set the stage for Democrats' political theater at the Senate Committee on the Judiciary as it launched confirmation hearings for Judge Amy Coney Barrett Monday.
Unsurprisingly, the political Left seemed to read from the same script: whine about the process, take rhetorical shots at President Trump, and, if all else fails, try to disqualify Barrett on the Affordable Care Act (ACA).
Such attacks are destined to fail.
For one thing, no one seriously believes that Judge Barrett is the ACA’s grim reaper. Are we really to think that Barrett—a mother to seven children, including one with special needs—is insensitive to the health care needs of normal Americans? In all likelihood, she has spent more time toting her children to doctor’s appointments in her Honda Odyssey than the average judge – or politician.
JOHN YOO: IF SENATORS ATTACK AMY CONEY BARRETT'S FAITH, HERE'S THE REPLY SHE MUST GIVE
To suggest that one Justice on the Supreme Court of the United States could singlehandedly upend a statute is to reveal the Left’s preference for what middle-American calls, “activist judges.”
Outcome-based judging is the hallmark of the liberal judicial philosophy and has been since the last time the Left threatened (and tried) to pack the court in the 1930s.
Informed Americans can see through these attacks.
Judge Barrett is a careful and fair-minded judge who has demonstrated that she will apply the law to the facts of each case, allowing that alone to guide her decision-making.
The nation knows a good nominee for the Supreme Court when they see one, even if some Democratic senators do not.
Still, the Left persists in seeking to discredit someone who would be the first mother of school-aged children to serve on the U.S. Supreme Court. Why? Is that instead not cause for celebration? Not if you want to retain credibility with your base.
That’s why the Left continues to suggest that Judge Barrett’s religious beliefs disqualify her from a seat on the Court.
Sen. Chris Coons, D-Del. sought to mask his attack on Judge Barrett’s faith inside of a question about Griswold v. Connecticut—a nearly 60-year-old Supreme Court decision involving the government’s ability to regulate birth control. The not so subtle accusation by Sen. Coons is that, since Judge Barrett’s church takes a theological position against the use of birth control, she could not possibly be unbiased as a judge.
Sen. Josh Hawley, R-Mo., was right to call such a question a near violation of the “no religious test for office” provision of Article VI of the U.S. Constitution. Likewise, Sen. Ben Sasse, R-Neb., protested anyone who would disqualify someone from a job on the high court because of their religious beliefs.
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We are a nation with a rich heritage of religious tolerance. Questions about a nominee’s faith not only appear bigoted, but impede the First Amendment’s promise of preserving religious freedom for all Americans.
Perhaps Senator Coons, and his colleagues, should consider the poll First Liberty Institute commissioned last week. More than two-thirds of Americans (62%) surveyed believe that questions concerning a judicial nominee’s religious beliefs should be off limits in Senate confirmation hearings.
But we all know what the Left is really after. They know Americans do not support their effort to stop Judge Barrett because of her faith and her profound credentials. All that is left is a transparent attempt to score sympathetic political points about health care.
It’s an act of political intimidation to discredit a potential Justice Barrett or, if they can, disqualify her. It is unlikely she will take the bait. Barrett—who has never stated she would strike down the ACA—is almost certain to decline comment on a potential case she could hear as early as November 10 when Texas v. California is argued before the Court.
It may not matter if she did, though. Justice Ruth Bader Ginsburg, during her confirmation hearings, advocated for access to abortion, but heard several cases involving the regulation of abortion.
A long-time advocate for the ACLU while she was an attorney, Justice Ginsburg did not recuse herself when that group came before her as a Justice. When the National Organization for Women—who named a lecture series after Justice Ginsburg in 2004—came before the Supreme Court, she did not recuse.
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More political theater is sure to come in the Senate in the ensuing days.
Theater and scare tactics are always the last resort against those whose qualifications and character cannot be touched. But when the lights come on after the vote is tallied, Judge Barrett is almost certain to return to Indiana, pack up the family, and take her seat as the next Associate Justice of the U.S. Supreme Court.
Republicans and Democrats have fundamentally different visions of the court: Sen. Cruz
Texas Senator Ted Cruz explains his views of the Supreme Court’s responsibilities during Judge Amy Coney Barrett’s confirmation hearing.
Republican Sen. Ted Cruz called out his Democrat peers on the Senate Judiciary Committee, wondering why they seemed more focused on President Donald Trump than on Supreme Court nominee Amy Coney Barrett.
The Texas senator gave his opening remarks on the first day of hearings via video conference, and he dedicated his time – as did other Republican senators – to speaking about the focus of the hearing.
“We’ve heard a lot of attacks [on] Trump … we’ve heard a lot of political rhetoric … but we’ve heard very little about the nominee who is here,” Cruz said.
“Part of the reason for that, is on any measure, Judge Barrett’s credentials are impeccable.”
CRITICISM OF BARRETT FAITH IS 'ATTEMPT TO BRING BACK TO DAYS OF THE RELIGIOUS TEST': HAWLEY
Democrat members of the committee focused on two main points: that they believed Trump aims to appoint Barrett in order to overturn the Affordable Care Act, and that Barrett should recuse herself from any cases relating to Trump that come before the court in November.
Meanwhile, Republican senators discussed Barrett’s past accomplishments as a clerk, professor and federal judge.
Cruz spoke via video conference as a precautionary measure, as he is quarantining after interacting with Sen. Mike Lee, who tested positive for COVID-19 on Oct. 2.
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Cruz has not exhibited any COVID-19 symptoms and has tested negative, a spokesperson for the senator said. Cruz is expected to return to the hearings in person starting Tuesday, the spokesperson told Fox News.
Supreme Court confirmation hearing for Amy Coney Barrett
The Senate Judiciary Committee hearing on the nomination of Judge Amy Coney Barrett to the Supreme Court kicked off Monday morning with a plea for civility by Committee Chairman Lindsey Graham while Ranking Member Dianne Feinstein vowed that Democrats would question Barrett on her stance on the constitutionality of the Affordable Care Act (ACA).
The socially distanced hearing is nothing like any Supreme Court hearing in the past, with the nominee wearing a black face mask in the television split-screen as senators gave their opening statements. Some senators are beaming in virtually as they aim to remain safe from the coronavirus pandemic.
The hearing room, in the past, has been abuzz with hundreds of observers and the occasional outbreak of a protest leading to arrests by the Capitol police. Instead on Monday, the hearing room under strict coronavirus protocols is nearly silent outside of the senators who are speaking. The only interruption came when Sen. Ted Cruz, R-Texas, had to pause during his remote opening statement because his cell phone rang with a text message.
"This is going to be a long contentious week," Graham said in his opening statement. "Let's make it respectful, let's make it challenging, let's remember the world is watching."
Graham was likely referencing the 2018 confirmation hearings of Justice Brett Kavanaugh, which were marred by constant interruptions, lurid sexual assault accusations and bombastic behavior from senators.
"I believe we want this to be a very good hearing," Feinstein said in response, saying that she would do her best to make the hearing civil, as Graham asked.
But, Feinstein said, Democrats plan to grill Barrett on how she would rule on California v. Texas, a constitutional challenge to the ACA that is set to be argued before the Supreme Court on Nov. 10. Republicans aim to confirm Barrett before the end of October.
"We will examine the consequences," of Barrett's potential rulings, Feinstein said, adding that "the president has promised to appoint justices who will vote to dismantle that law."
"This well could mean that if Judge Barrett is confirmed, Americans stand to lose the benefits that the ACA provides," Feinstein continued. "More than 130 million Americans with pre-existing conditions .. could be denied coverage or charged more to obtain health insurance."
Sen. Mike Lee, R-Utah, slammed Democrats for their push to make Barrett commit one way or another on how she would rule on the ACA.
"These tactics of creating fear and uncertainty and doubt … astound me they dismay me and they disappoint me," Lee said of Democrats' dire warnings. "They reflect the fact that we have allowed for the politicization of the one branch of the federal government that is not political."
Lee added: "I will object anytime anyone tries to attribute to you a policy position and hold you to that. You're not a policymaker. You're a judge."
President Trump Monday criticized Senate Republicans for holding the Barrett hearing in a way that gave Democrats equal time, instead withing the Republicans would bring Barrett for an immediate floor vote and move on to working on a potential stimulus package.
I will object anytime anyone tries to attribute to you a policy position and hold you to that. You’re not a policymaker. You’re a judge.
"The Republicans are giving the Democrats a great deal of time, which is not mandated, to make their self serving statements relative to our great new future Supreme Court Justice," Trump said. "Personally, I would pull back, approve, and go for STIMULUS for the people!!!"
Graham, however, made clear that he believes it is important for Democrats to have an opportunity to make their case during the committee hearings.
"We've done some things together and we've had some fights in this committee. I'm trying to give you the time you need to make your case and you have every right in the world to make your case," Graham said to the Democrats. "I think I know how the vote's going to come out, but I think Judge Barrett is required for the good of the nation to submit to your questions and ours."
The Barrett hearings are also happening as questions continue to surround Democratic presidential nominee Joe Biden and his running mate Sen. Kamala Harris, D-Calif., over whether they will pack the Supreme Court if elected. The pair has steadfastly refused to tell Americans what they will do on the issue. Multiple Senate Democrats have advocated for court-packing, which means adding seats to the Supreme Court by law and confirming justices to those seats that agree with your party politically.
I think I know how the vote’s going to come out, but I think Judge Barrett is required for the good of the nation to submit to your questions and ours.
"Lately the left is threatening to pack the Supreme Court in retaliation for this confirmation process," Sen. Chuck Grassley, R-Iowa, said in his Monday opening statement. "Even the Democrats' nominee for president and vice president have not ruled out such blatantly partisan policy grabs. Republicans are following the Constitution and the precedent, it seems Democrats would rather just ignore both."
Democrats have disputed that Republicans are following precedent, saying that they are busting precedent they set in 2016 when they refused to confirm Judge Merrick Garland to the seat opened by late Justice Antonin Scalia for many months before that year's presidential election. Senate Minority Leader Chuck Schumer, D-N.Y., has called the process "illegitimate" for that reason.
Sen. Sheldon Whitehouse, D-R.I., said the GOP move to confirm Barrett is a "hypocritical, tire-squealing 180."
But Republicans note that in most cases where the Senate is controlled by the same party as the president, election-year Supreme Court nominees are confirmed, whereas they are generally not confirmed when the Senate is controlled by a party different from the president. Nevertheless, there has never been a Supreme Court justice confirmed this close to an election, something Graham acknowledged in his opening statement.
But, Graham added, "The bottom line is Justice Ginsburg, when asked about this several years ago, said that a president serves four years, not three. There's nothing unconstitutional about this process."
Graham, in his opening statement, extolled Barrett's qualities as he defended Republicans' move to confirm Barrett just weeks ahead of a presidential election.
"In my view, the person appearing before this committee is in a category of excellence," Graham said, "the country should be proud of."
He added that Barrett "academically, she's very gifted," citing her educational exploits and time as a professor at the law school at Notre Dame. Graham also emphasized Barrett's commitment to being an unbiased judge and highlighted her family of seven children.
The hearing promises to be highly contentious all the way through. Senate Minority Leader Chuck Schumer, D-N.Y., on Sunday called the Barrett confirmation effort "illegitimate, dangerous and unpopular." He called on Barrett to recuse herself from any Supreme Court cases involving the Affordable Care Act (ACA) and the presidential election.
Republicans, however, have said that they plan to advance Barrett out of the Judiciary Committee by Oct. 22 and confirm her by the end of the month. But Schumer, potentially indicating a handful of weeks to come full of procedural roadblocks to gum up the confirmation effort, swore that Democrats will not "provide quorum" for any committee votes on Barrett, which would almost certainly force Republicans to change the committee's rules to get Barrett's nomination to the floor.
Hypocritical, tire-squealing 180
The hearing is also happening as every other aspect of the Senate is closed down in the middle of a pandemic that is currently infecting three Republican senators, including two on the Senate Judiciary Committee.
Lee is one of those senators and is present in the hearing room Monday. Graham as he opened the hearing said that Lee has been cleared by his physician. Sen. Thom Tillis. R-N.C., said previously he would attend the first three days of hearings virtually. Tillis also previously tested positive for the virus.
Sen. Patrick Leahy, D-Vt., hit Republicans on the coronavirus issue, noting that the hearing room is significantly changed from what most hearings look like due to coronavirus precautions, including with several senators appearing remotely.
"Every senator on this committee knows in their heart this total break with precedent, break with their commitments, is wrong," Leahy said.
"The whole thing, just like Trump, is an irresponsible botch," Whitehouse said as he slammed Graham for holding the hearing without testing or contact tracing. He called Barrett "a judicial torpedo aimed at [Americans'] essential protections" in the ACA.
Republicans have responded that the Senate has held hearings since the beginning of the coronavirus pandemic in the same hybrid format regularly. Graham in his opening statement emphasized that most Americans are heading to work Monday morning, so the Judiciary Committee should do that as well.