Republicans plowed ahead Tuesday with Judge Amy Coney Barrett’s confirmation hearing, with senators on the Senate Judiciary Committee getting their first crack at publicly questioning President Donald Trump’s Supreme Court nominee.
They made it pretty easy for Barrett.
Hours into the hearing, Republicans were lobbing the softest of softball questions.
“Do you speak any foreign languages?” asked Sen. Ted Cruz (R-Texas). “Do you play any instruments?”
“Why do judges in our system wear robes?” asked Sen. Ben Sasse (R-Neb.).
“You’re a very accomplished jurist in your own right, is that fair to say?” Sen. Josh Hawley (R-Mo.) asked with a smile.
The real pressure was on Democrats, though, from whom progressives have been demanding a fiery and united show of opposition, framing Barrett as an illegitimate nominee in an illegitimate process weeks before an election in which people are already voting.
Trump and Republican senators are rushing to confirm Barrett in the event Joe Biden wins on Nov. 3, in which case they’d face tremendous pressure to let him fill the court vacancy in 2021. That’s in addition to Trump wanting Barrett seated in time for an Affordable Care Act case coming before the court on Nov. 10. The president also hasn’t been subtle about saying he wants her on the court in the event it has to decide the outcome of the election.
Democrats didn’t exactly come out swinging.
“I was wondering if you might introduce us” to family members in the audience, began Sen. Dianne Feinstein (D-Calif.), the ranking member.
“You don’t have a magic formula for how you do it and handle all the children and your job and your work and your thoughts process, which is obviously excellent, do you?” said Feinstein.
“It’s improv,” laughed Barrett.
The California Democrat made light talk about Barrett’s family again later: “You’ve got a lovely family. You understand all the implications of family life,” she said. “I’m proud of you for that.”
Sen. Patrick Leahy (D-Vt.) had some friendly family talk, too.
“It’s obvious your family is very important to you,” he told Barrett, noting he’s been married 50 years. “Our children and our grandchildren are the most important things in our life. It’s a privilege to see you introduce the family.”
Democrats did press Barrett, of course, on the laws and issues they’re the most worried about if she’s confirmed. She just didn’t answer their questions.
Barrett wouldn’t say if she thought Roe v. Wade was wrongly decided. She wouldn’t say if she agreed with the late Justice Antonin Scalia, for whom she clerked, in his legal opinion against marriage equality. She refused to recuse herself from election-related disputes, and wouldn’t say if she thinks Trump can unilaterally delay the election.
“I can’t pre-commit or say, ‘Yes, I’m going in with some agenda,’ because I’m not,” she said about Roe v. Wade. As for how she’d rule on potential election-related disputes coming before the court, she said, “If I give off-the-cuff answers, I would basically be a legal pundit.”
Barrett disputed that she has problems with the Affordable Care Act, despite Trump saying he’d only pick a nominee who would dismantle the law and despite her past criticism of the law. She has said that she and Scalia have the same judicial philosophy, and he voted twice to dismantle the law. She also criticized Justice John Roberts for upholding the law, saying in 2017 that he “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
“I am not hostile to the ACA,” Barrett told Sen. Dick Durbin (D-Ill.), arguing that her legal critique of the law’s mandate is not the same as opposing the law itself.
“To assume that because I critiqued the interpretation of the mandate ... means that on the entirely different legal question of severability I would reach a particular result just assumes I’m hostile; that’s not the case,” she said.
Sen. Sheldon Whitehouse (D-R.I.) didn’t ask any questions during his half hour of time. He connected dots between the network of dark money and conservative groups like Judicial Crisis Network and the Federalist Society driving Trump’s judicial nominees, including Barrett.
“The woman who helped choose this nominee has written briefs for Republican senators attacking the ACA,” Whitehouse said of Carrie Severino, who runs Judicial Crisis Network, a right-wing activist political campaign organization. “Don’t say the ACA is not an issue here.”
Oddly, for all the attention that’s been on how Barrett would rule on the Affordable Care Act’s constitutionality, she seemed to know little about how many people use it.
In response to questions by Leahy, she said she didn’t know that more than 20 million people rely on the law for health insurance. She also didn’t know that more than 7.8 million Americans have tested positive for COVID-19, or that more than 215,000 Americans have died from it, a terrifying subtext to the hearing as senators participated in masks or called in virtually for safety reasons.
Two members of the committee, GOP Sens. Mike Lee (Utah) and Thom Tillis (N.C.), recently tested positive for the coronavirus. Both attended the hearing anyway, talking without masks on, saying their doctors had given them the green light.
“We need a bit of a reality check that this isn’t normal right now,” said Sen. Amy Klobuchar (D-Minn.), finally touching on what progressives have been shouting about. “We shouldn’t be doing this. We should be passing coronavirus relief.”
She asked Barrett if people should “take the president at his word” when he tweeted that his Supreme Court nominee will ”do the right thing” and overturn the Affordable Care Act.
“I can’t really speak to what the president has said on Twitter,” Barrett replied. “He hasn’t said any of that to me.”
“We need a bit of a reality check that this isn't normal right now. We shouldn’t be doing this. We should be passing coronavirus relief.”
Sen. Chris Coons (D-Del.) pressed Barrett on whether she’d recuse herself from resolving a 2020 election dispute. Trump, who has falsely been claiming that mail-in voting is a scam, has been trying to cast doubt on the election and emphasized that the court needs nine justices before Election Day. He’s also refused to commit to a peaceful transition of power if he loses.
“Given what President Trump said, given the rushed context of this confirmation, will you commit to recusing yourself from any case arising from a dispute in the presidential election results three week from now?” asked Coons.
As was the case with so many other questions of the day, Barrett declined to answer.
“I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people,” she said.
Democratic Sens. Mazie Hirono (Hawaii) and Cory Booker (N.J.) emphasized that nothing about this hearing is normal, given that presidential election voting is underway and the coronavirus is ravaging the country.
Sen. Kamala Harris (D-Calif.), the last Democrat to get time with Barrett, put the focus back on the Affordable Care Act. She said more than 100 million Americans with pre-existing conditions would pay more for insurance or be denied health coverage entire if the health law is struck down.
“What weight would you give the fact that 135 million Americans with pre-existing conditions are now depending on the protections of the Affordable Care Act?” she asked.
“I can’t really say, sitting here, how they would play any way in this case because that’s part of the legal calculus of the case,” Barrett said. “I can’t really give you the kind of commitment or pre-commitment that you’re asking from me of how I would weigh factors or how I would structure my decision-making process.”
“I would ask you to consider, if you are confirmed on the court, a credible benefit of the Affordable Care Act,” replied Harris. “And that a destruction of its protections will have a devastating impact on millions of Americans.”