Image courtesy of NBC News
By Javi Mazariegos
Federal Judge Amy Coney Barrett’s confirmation hearing began on Monday, October 12, to fill the empty seat of the late Justice Ruth Bader Ginsburg ahead of the highly contentious general election in November. Partisan division, health care, and judicial philosophies were at the core of Barrett’s hearings.
Senate Democrats have strongly opposed confirming Judge Barrett to the Supreme Court because the nation is in the midst of a fiery presidential debate; they have accused Senate Republicans of rushing the confirmation of Justice Ginsburg’s replacement. The Democrats’ main objection is against the hearing itself, which they deem more inappropriate given the ongoing coronavirus pandemic, which they view as Congress’ main priority.
With respect to the rushed nature of the hearings, Senate Republicans strongly disagree, citing the fact that many Supreme Court seats have been filled in far shorter spans of time from their nominations: Justice Ginsburg was confirmed 42 days after her nomination, Sandra Day O’Connor, 33 days, and John Paul Stevens, 19. Barrett was nominated on September 26 and Republicans hope to have a vote on the 22nd of October, 27 days after her nomination by President Trump. Obviously, this is during an election year, and Democrats have pointed out the election is close at hand and the fact that Senate Republicans rejected President Obama’s Supreme Court nominee Merrick Garland during the 2016 Presidential campaign.
Judicial Committee Chairman, Lindsay Graham (SC-R), used the words of late Justice Ginsburg in response to the claim that the hearing is unfitting, “a President is elected for four years, not three.” The difference between 2020 and 2016 is the fact that the president’s party holds a majority in the Senate.
Republican Senators also suggested the coronavirus pandemic was not an excuse for the Senate not to do its job. They argued that if the Democrats were sincere about their worry about the ongoing pandemic, they would not have filibustered a $300 billion stimulus package in the Senate, which the Democrats claimed was inadequate, leaving little hope for relief before the general election.
The primary issue brought to light in the first day of hearings was Senate Democrats’ concern over the effect of a Judge Barrett confirmation on the crucial issue of healthcare in the United States. The Supreme Court is held to hear a pivotal case on the constitutionality of the 2010 Affordable Care Act, California v. Texas, a week after election day in November.
Senate Democrats held tight in arguing that 22 million Americans depending on the Affordable Care Act would lose their medical coverage if Barrett, and a conservative majority on the Court, ruled against Obama’s signature domestic legislation.
Committee Democrats used pictures of everyday American citizens who would be negatively affected by the overturning of the Affordable Care Act to emphasize their claim that Barrett’s place on the court would be harmful to Americans around the country. Senator Sheldon Whitehouse (RI-D) claims his constituents see Barrett as “a torpedo aimed at their essential protections.”
Senator Dianne Finstein (CA-D), famous for criticizing Barrett’s fidelity to Catholicism in 2017 saying “the dogma lives loudly in you,” made the party’s position clear when she said, “Health care for millions of Americans is at stake.”
This time around it was Republicans who brought up Barrett’s faith. They attacked their opponents by mentioning how the Democrats used fidelity to Catholicism as a discredit to her serving as a Judge in 2017.
However, Barrett’s faith was not directly brought up by any Democrats during the hearing. Former Vice President Joe Biden told reporters that Barrett’s faith was in no way a hindrance to her qualification, saying, “No one’s faith should be questioned,” as it is unconstitutional. This remained the tone around Barrett’s faith the entire week: only Republicans mentioned her faith as a point in her favor.
“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,” Graham said at the opening of Wednesday’s session.
Vice-presidential candidate Senator Kamala Harris (CA-D), a committee member, joined remotely from her office across the street, making a similar appeal to Americans depending on the Affordable Care Act, holding that the Supreme Court was the last great protector of Justice for every American under the law. She mentioned the legality of same-sex unions, abortion, interracial marriage, and desegregation of schools all as protections secured by the Supreme Court. She claimed “the right to vote, worker’s rights, and the right to safe and legal abortion are at stake.”
“That’s outrageous. As a mother of seven, Judge Barrett clearly understands the importance of health care,” said Senator Chuck Grassley (Iowa-R) in response to the Democrat’s claims on health care. Republicans assured the committee the central question in their hearings was not the Affordable Care Act but, per the Constitution, to provide their “advice and consent” to the President.
Senator Ben Sasse (NE-R) voiced the Republicans’ main point in his opening statement: Judge Barrett has been nominated for the Judicial Branch of the Federal Government, not the Legislative Branch. Healthcare is a question for the Legislature. He countered the idea that Barrett would be a conservative ideologue rolling back American protections by citing that her judicial philosophy, the originalism of Antonin Scalia, was the very antidote to the judicial activism that Democrats fear would harm Americans.
“Judges don’t get to make laws. Judges apply them,” Sasse said. “An originalism comes to the court with a fundamental humility and modesty about what the job is they are there to do.” He continued, arguing that such a judicial philosophy in which the Judges wear robes and not “partisan jerseys” puts tough issues in the hands of the legislature, who are accountable to the people. Healthcare and abortion fall into the hands of lawmakers responsible to the consent of the governed, not to an aristocracy of nine. According to this philosophy, If Roe v. Wade (1973) is overturned, it is because the decision is unconstitutional, not because a Judge did not like it.
Barrett gave the heart of her judicial philosophy strongly in her own opening statement.
“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” Barrett said. “The public should not expect courts to do so, and courts should not try.”
For the entire week, Barrett’s originalism, also known as textualism, was the stalwart position she held to every question on policy or her preference or opinion on anything that can come before the court. She repeatedly insisted her personal views are a null point as she must set those aside according to her judicial philosophy.
Barrett co-authored an article in the Marquette Law Review with John Garvey, the current president of the Catholic University of America, in 1998 on the very issue of judges finding a conflict between moral conscience and application of the law. She and President Garvey argued a judge should recuse themselves and have someone else apply the law instead of being partial in their application of the law, causing them to legislate from the bench.
Day two of the hearings on Tuesday followed a similar trajectory. Senate Democrats, notably Senators Amy Klobuchar (MN-D) and Dianne Feinstein (CA-D), questioned Barrett on her view of Roe v. Wade and the Affordable Care Act. Throughout the line of questioning about her view of different precedents, Barrett had one core answer: she followed the Ginsburg rule.
In 1993, then-nominee Ginsburg claimed in her hearings that the most appropriate approach she should take towards questions about precedent is to remain silent on her personal views or on issues that might come before the court, “no hints or forecasts.” Ginsburg was appointed with a 93-3 vote. That same rule has been used by every nominee to the high court since.
Committee Democrats still pushed this claim in the majority of their line of questioning, as most of Barrett’s answers pushed up against this rule. Senator Richard Blumenthal (CT-D) was strong in his discontentment with Barrett’s silence on a number of issues, claiming that he hoped the Ginsburg rule would not “turn into the Barrett rule.”
Making headlines, Senator Klobuchar argued that Barrett was “the polar opposite of Ruth Bader Ginsburg” and would destroy her legacy.
To all the questions asked, Barrett spoke in very plain English.
“A judge can’t walk in one day and say, I feel like visiting the question health care and telling people what I think,” she said. “We can’t even think about the law or how it would apply until litigants bring a real live case with real live parties and a real life dispute before us.”
Chairman Graham asked her to please explain her judicial philosophy “in English.”
Barrett responded, “Judges should read the Constitution as law, and interpret it the way it was meant to be interpreted by those who wrote it.”
Barrett cited Elena Kagan’s hearings for her silence on how she would rule on certain issues. Barrett claimed she was not before the committee to “grade precedent” or tell “if I love it, or if I hate it.” She did assure the senators that she abides by stare decisis, the legal principle that has animated the Supreme Court for centuries, holding that precedent must be respected and only overturned on sufficient legal grounds according to the constitution.
The legal principle of stare decisis was at the heart of many of the questions asked Barrett, in particular whether or not she would uphold the legal principle as she had argued in previous cases that stare decisis could be put aside for the sake of a better interpretation of the Constitution. Barrett responded that of course the Court could have poor precedent, and the Supreme Court could overturn it, but not without going through the long and thorough judicial process by which a majority reaches a better interpretation of the law.
Regardless, the Affordable Care Act was still in the foreground questions from not only Democrats, but also Republicans, including Graham and Senator Chuck Grassley.
“I am not here on a mission to destroy the Affordable Care Act,” said Barrett. “I’m just here to apply the law and adhere to the rule of law. She claimed she made “no promise to anyone whatsoever” with respect to overturning the ACA.
Late Tuesday, Senator Mazie Hirono (HI-D) drew attention by asking Barrett twice if she had ever sexually assaulted anyone, or made inappropriate requests for sexual favors. The mother of seven simply replied, “no, Senator” to both questions. Hirono mentioned that it was protocol for her to ask those questions to anyone before the committee.
Also brought to light was Democrats’ accusal of President Trump’s abuse of power. They argued Judge Barrett would not be fit to hear a case regarding the 2020 election. She refused to commit to recusing herself as it would be inappropriate for the way she ought to approach questions that have not yet reached the bench. When asked if President Trump was above the law, she answered clearly, without mentioning Trump specifically, “No person is above the law.”
Additionally, committee Democrats asked Judge Barrett about her views on climate change, abortion, and racial justice in America. On Wednesday, Harris asked Barrett what she thought about the science of climate change, and whether or not she thought climate change was caused by humans. Judge Barrett refused to give a categorical answer, saying she was not a scientist or expert on the topic and was in no position to give a meaningful answer, especially in her role as a judge.
Senator Cory Booker (NJ-D) spoke at length about his view of systemic racism in America, claiming that he was opening up with “what I have in my heart.” Charged with emotion, he asked Barrett if she was aware of the sensitive and critical topic of race in America, and asked her to “condemn white supremacy,” as Booker claimed President Trump was unable to do.
Judge Barrett categorically condemned white supremacy and called racism a fundamental evil. She said she was very aware of the tension of race in America. She even mentioned that the events of this summer, the killing of George Floyd, were unfortunate examples of the fact that “racism is alive today.”
A particularly noteworthy and human moment in the hearings was Barrett’s response to Senator Dick Durban’s (IL-D) question about the infamous George Floyd video.
Barrett responded, “Senator, as you might imagine, given that I have two black children, that was very, very personal for my family.” Speaking about her Haitian daughter, Vivian, Barrett continued, “it was very difficult for her, and we wept together in my room.”
Republican Senators gestured at the fact that if there is anyone who understands racial justice and the importance of equal dignity, it would be the mother who adopted children of another race, making them among the closest persons she could hold in her heart.
Democrats and Republicans alike were cheerful and impressed with Barrett’s family present in the hearings. Feinstein commented on how well-behaved her children were, and how it was delightful to have them present. Republicans were not short in their admiration of the Barrett family.
Similarly, both Democrats and Republicans were impressed and appreciative with the tone of voice and respectful manner with which Barrett answered every question, even if they carried hostile implications. In particular, Booker ended his questioning with an indication that he was very appreciative of the respect she showed towards him, and hoped he was able to show the same respect for her.
The Washington Post went so far as to say “this is looking good for Republicans.”
For the duration of the hearings the questioning from the Senate Republicans was rigorous and serious, but they used their time to criticize their Democratic colleagues. In addition, they brought out the human side of Judge Barrett, asking about her family life and her favorite classes to teach in law school. They showered praise on the fact that she had strong support from almost everyone she has worked with on the federal and academic spheres. 88 faculty of the University of Notre Dame criticized Barrett’s appointment to the court but not one of those faculty was from the law school. Republicans also pointed to her strong approval from the American Bar Association.
Social media was abuzz with the hearings on Tuesday when Barrett was asked about what she was reading from. Both Republicans and Democrats alike were reading from copious prepared notes. For the entire hearing, Barrett had an empty table with only a notepad in front of her. When asked if she could show what she had written, she smiled and held up an empty notepad. Senator John Cornyn’s (R-TX) response was trending all over the news cycle: that’s impressive.
The Senate Judiciary Committee will hold a vote on October 22 to formally approve Barrett’s nomination. Given the Republican majority on the committee, the motion is expected to pass, which will then bring Barrett’s nomination to the floor of the Senate for confirmation.