October 14, 2020

Barrett Testifies

On Tuesday, Supreme Court nominee Amy Coney Barrett was questioned by the Senate Judiciary Committee. C-Span

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From the Left

The left opposes Barrett, arguing that she is likely to support overturning the ACA and roll back abortion and LGBTQ rights.

“[Barrett] told the committee that ‘courts are not designed to solve every problem or right every wrong in our public life.’ Evidently, that meant real-world consequences of the decisions she may make should not be relevant to her, the Senate, or the general public… [She] professes not to see how, if she made a ruling in a case that would strip away protections from people with preexisting conditions, that case would be a challenge to those protections. The people would only be losing their protections incidentally as she decided the completely different question of severability… 

“Barrett doesn’t need to know the cost of insulin; she doesn’t need to know how many people in this country have COVID-19; she doesn’t need to know how many millions of Americans are covered under Medicaid expansion or under the Affordable Care Act as a whole. It’s not the courts’ job to ‘right every wrong,’ even if those wrongs are directly caused by the decision the court would make.”

Jeremy Stahl, Slate

“[Barrett] said she would ‘need to hear arguments’ about whether President Trump can postpone the election… By the plain wording of the Constitution and the law, a president cannot unilaterally postpone an election. But this nominee, sounding more Trumpist than textualist, tells us it’s debatable… Sen. Amy Klobuchar (D-Minn.) returned to the subject of elections, asking Barrett: ‘Under federal law, is it illegal to intimidate voters at the poll?’ Again, an easy question with an obvious answer… ‘I can’t apply the law to a hypothetical set of facts,’ she said… 

“What makes Barrett’s answers disturbing (and what probably makes her so wary about answering) is there is nothing hypothetical about any of this. Trump did propose postponing the election. He has made clear he will dispute the results if he does not win. He refuses to commit to a peaceful transfer of power. He has repeatedly raised unfounded doubts about the integrity of elections and falsely declared mail-in balloting fraudulent… Is it too much to ask that a Supreme Court nominee would defend the Constitution and federal law from a president who disregards both?”

Dana Milbank, Washington Post

Many note that “There’s nothing wrong with recognizing that Barrett is a mom, or welcoming her children into the room (although I question the wisdom of having six children in a room with a Covid patient and many others who were recently exposed). It’s not unusual for the judiciary committee to mention a nominee’s parental status. What is unusual, though, is to have every member of one party bring it up, often more than once, and even emphasize it as a qualification for the bench… 

“Republicans have said over and over that Barrett’s personal life, including her faith, should be off-limits. And yet they repeatedly raised her personal life, including her faith, as an asset. They seem to want to use what they claim is Barrett’s private life as both a sword and a shield: an argument in her favor, but one that cannot be refuted on its own terms or even questioned, because to do so would be to criticize her private convictions and impose a ‘religious test’.”

Jill Filipovic, The Guardian

“If a little-known Muslim group made headlines in connection with the nomination of a justice, Republicans wouldn’t have the same concerns about religious bigotry… Former People of Praise members told The Associated Press that women in the group are expected to obey their husbands and provide sex on demand (the group said in a recent statement that ‘husbands should not be domineering nor should wives be servile’). If Judge Barrett were Muslim, these former members would probably be invited to appear on ‘Fox & Friends’ to give voice to their concerns about the judge’s regressive stances… 

“I am not critical of Judge Barrett’s nomination because of her Catholicism. I am deeply sensitive to religious bigotry and stereotypes. I’m a practicing Muslim living through an administration that campaigned for a Muslim ban… Like most Americans, I am worried that Judge Barrett will use her seat to advance an extreme agenda that will be detrimental to the interests of a majority of people in this country. We fear that, if confirmed, she’ll help the religious right drag equal rights and progress back 50 years.”

Wajahat Ali, New York Times

“Barrett favors religious expression over other speech… [Barrett’s vote could] shape a major case on religious freedom that the court is scheduled to hear Nov. 4 — one day after the presidential election. In that case, a religious adoption agency has refused to place foster children with same-sex parents, despite a Philadelphia rule banning such discrimination. The agency argues that respecting religious liberty requires allowing it to receive public funding while it refuses to place children with LGBTQ parents… 

“Currently, the Constitution does not give religious actors a right to exemptions from laws that apply in the same way to everyone. Under that rule, the foster agency would lose, because the city’s prohibition on discrimination applies in the same way to religious and nonreligious agencies alike. But the court has agreed to consider whether it should fundamentally rethink how it approaches religious free exercise.”

Nelson Tebbe and Micah Schwartzman, Washington Post

From the Right

The right supports Barrett, arguing that she is qualified and criticizing the questions posed by Senate Democrats.

The right supports Barrett, arguing that she is qualified and criticizing the questions posed by Senate Democrats.

“Senate Democrats are trying to turn the confirmation hearing on Amy Coney Barrett into a political victory for their party, but so far they’ve failed miserably. Barrett is the poster-woman the GOP needs to attract college-educated female voters and help close the gender gap come November… 

“Democrats on the Senate Judiciary Committee put up poster-size photographs of sick patients who benefit from the Obame­Care’s protections… Yet Barrett’s past legal reasoning suggests she is unlikely to vote to overturn the entire law. More important to most people watching, Barrett has compassion and real-world experience dealing with costly medical problems. She took pains to explain that when she first brought her adopted daughter Vivian home from Haiti, doctors predicted the baby would never be able to walk or talk. Barrett has six other children now, including another son, JP, adopted from Haiti and a youngster with Down syndrome.”

Betsy McCaughey, New York Post

“[In a 2017 article] Barrett argues that by classifying the section of ObamaCare requiring Americans to purchase health as a tax, John Roberts and the other justices who upheld the individual mandate in NFIB v. Sibelius ‘pushed the Affordable Care Act beyond its plausible meaning to save the statute.’ This is simply true. The idea that the individual mandate (which has not been enforced by the present administration and was eliminated in 2017 anyway) was a tax was dismissed by President Obama himself… 

“Such an acknowledgement has absolutely no bearing on what Barrett might say about the rest of the law. Many supporters of the Affordable Care Act's few actually worthwhile provisions (including this columnist) are happy to dismiss Roberts' construal of the statute as a contemptible legal fiction while insisting that the expansion of Medicaid is not only constitutional but salutary. There are few if any reasons to think it likely that the Supreme Court, with or without Barrett on it, will strike down a law that even Senate Republicans have come reluctantly to accept in recent years.”

Matthew Walther, The Week

“The Senate confirmation hearings for Amy Coney Barrett may lack for political drama, but they are still instructive. They are revealing the deep fault lines over the Supreme Court, and how Democrats view it as a mini-legislature to achieve policy goals, rather than a real judicial body. Democrats are asking very little about the actual law or Judge Barrett’s jurisprudential thinking. Instead, one after another, Democrats have used their time to focus on a parade of policy horribles if she is confirmed… 

“All of this distorts the role of a judge, who has to rule based on what the law is, not on what she would want it to be… Democrats are doing a great disservice to the law and judiciary by treating these hearings like an emotive political ad. They are telling voters that the courts are nothing more than another arena for political disputes.”

Editorial Board, Wall Street Journal

“Sen. Dianne Feinstein, a California Democrat, the ranking member on the Senate Judiciary Committee, asked Barrett repeatedly to tell the committee whether she agrees with the substance of the Affordable Care Act, whether she believes that Roe v. Wade lacks constitutional authority, and whether she believes gay marriage is a constitutionally afforded right…

“But Feinstein, like every other Democrat on the committee, knows that judicial nominees cannot and should not express their personal views on controversial political issues that could come before the courts. Doing so would make them appear biased and unable to do their job… 

“Barrett is simply observing the same standard [as Justice Ginsburg], and Senate Democrats ought to respect judicial canon and stop asking pointed, direct questions that she cannot answer. Democrats should instead use their time to ask Barrett questions about her past court opinions in which she has expressed her legal views. Not only would such questions about Barrett’s jurisprudence be appropriate, but they are also necessary. But Democrats seem bent on avoiding Barrett’s record — perhaps because they know it speaks for itself.”

Kaylee McGhee, Washington Examiner

“We would not want Senate confirmation hearings to turn into efforts to extract promises from nominees to rule in particular ways… But ‘no hints and no previews’ goes too far. As one commentator pointed out 30 years ago, ‘‘might come before the Supreme Court’ is an elastic standard that arguably encompasses all human activity.’ The appointment and confirmation process can’t work as a check on the power of the federal courts if presidents and senators are blocked from finding out much about how a prospective justice expects to wield that power… 

“So far, Barrett’s Democratic opponents have done nothing to harm her chances of confirmation. That’s partly because they don’t have much of a case against her, and partly because they don’t have the votes to stop her. But it’s also because modern confirmation hearings have largely been designed to grease the skids for judicial nominees. In Judge Barrett’s case, they’re working as intended.”

Ramesh Ponnuru, Bloomberg

A libertarian's take

“The Senate didn’t even hold public hearings on Supreme Court nominations until 1916… It wouldn’t be until 1938 that a nominee testified at his own hearing. In 1962, the part of Byron White’s hearing where the nominee himself testified lasted less than 15 minutes and consisted of questions about his storied football career​… 

“I’ve come to the conclusion that we should get rid of hearings altogether, that they’ve served their purpose for a century but now inflict greater cost on the Court, Senate, and rule of law than any informational or educational benefit gained. Given the voluminous and instantly searchable records nominees have these days — going back to collegiate writings and other digitized archives — is there any need to subject them, and the country, to a public inquisition?”

Ilya Shapiro, Cato Institute

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