Consider This from NPR - The Politics At Play In Judge Amy Coney Barrett's Confirmation Hearings

Episode Date: October 14, 2020

With less than three weeks to go until Election Day, Republicans have the votes to confirm Amy Coney Barrett to the Supreme Court. Her confirmation hearing is now much about the politics of the election. Democrats, including Delaware Sen. Chris Coons, are focused on issues like the future of the Affordable Care Act. While Republicans, as NPR's Melissa Block reports, are emphasizing Barrett's motherhood in an effort to appeal to white suburban voters. In participating regions, you'll also hear a local news segment that will help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Good morning, everybody. These days, a Supreme Court confirmation hearing is mostly about not answering questions. I can't comment on whether I think that the panel majority got that right. I'm not going to express a view on whether I agree or disagree with Justice Scalia. I can't express views on cases or pre-commit. I can't, and I'm sorry. I can't give a yes or a no. I cannot answer that question. Can't give answers to those very specific questions. Okay, thank you very much.

Thanks, Mr. Chairman. Thank you, Senator Feinstein, Senator Grass. In this week's Senate hearings, Judge Amy Coney Barrett has declined to answer questions about issues like the Affordable Care Act, same-sex marriage, and abortion, because, as other nominees before her have said, If I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another in a pending case. But Barrett also declined to answer more basic questions, like whether voter intimidation is illegal, which it is.

I can't characterize the facts in a hypothetical situation. Whether the president could lawfully delay an election, which he cannot. If that question ever came before me, I would need to hear arguments from the litigants. And whether the peaceful transfer of power is something every president should commit to. To the extent that this is a political controversy right now, as a judge, I want to stay out of it and I don't want to express a view.

Consider this. Republicans have the votes to confirm Amy Coney Barrett to the Supreme Court. With less than three weeks until Election Day, the theater of her confirmation hearing is about something else. From NPR, I'm Adi Cornish. It's Wednesday, October 14th. Support for NPR and the following message come from America Media, producer of the new podcast, Voting Catholic, about what's at stake in the 2020 election from real people who struggle with the issues and bring their faith to the voting booth. Subscribe and listen to Voting Catholic wherever you get your podcasts. This message comes from NPR sponsor Neon with Totally Under Control. Shot in secrecy,

Academy Award-winning filmmaker Alex Gibney interviewed scientists and government whistleblowers to expose the truth about the COVID pandemic. On digital and VOD October 13th and Hulu October 20th. I'm Rodney Carmichael. I'm Sydney Madden. And on our new podcast, Louder Than a Riot, we trace the collision of rhyme and punishment in America. We were hunted by police. We were literally physically hunted. You'd be standing on the corner, drug squad pull up, everybody around. New from NPR Music. Listen to Louder Than a Riot. It's Consider This from NPR. White suburban women have a problem with the president.

So can I ask you to do me a favor? Suburban women, will you please like me? Please, please. That was President Trump at a rally in Pennsylvania this week. The other thing, I don't have that much time to be that nice. You know, I can do it, but I got to go quickly. We don't have time. They want me to be politically correct.

An NPR-PBS NewsHour Marist poll this summer showed that two-thirds of women in suburbs and small cities plan to vote for Joe Biden. I'm honored and humbled to appear before you today as a nominee for Associate Justice of the Supreme Court. In her opening statement at this week's confirmation hearings, Amy Coney Barrett introduced her family. My husband Jesse and I have been married for 21 years. He has been a selfless and wonderful partner every step of the way. Barrett has seven children, six of them sat behind her. My son JP, my daughter Emma, my daughter Juliet, my daughter Tess, my daughter Vivian, and my son Liam. And so with the focus on Barrett's family,

some strategists see an effort to help the president appeal to a crucial part of the electorate. Here's NPR's Melissa Block. One after another, Republicans on the Judiciary Committee have highlighted Judge Barrett's maternity. Judge Barrett is a tireless mother of seven. You, a working mother of seven. She's a remarkable mother. She has seven beautiful children. We heard Senators Chuck Grassley, Joni Ernst, and Tom Tillis. When their Republican colleague Marsha Blackburn praised Barrett's academic and legal accomplishments, she added, I appreciate that many times you've probably done this with a child in your arms, on your hip, or somewhere in

tow. And Barrett's fellow Hoosier, Senator Mike Braun, summed up the judge this way, a legal titan who drives a minivan. That description in particular? It spoke to me personally. Marie Sanderson is a longtime Republican advisor and co-founder of the group Into America, which supports center-right policies focused on the suburbs. I'm a mom of three. I run several businesses and a nonprofit, and I feel like I'm just trying to get through my day. And so, again, this is who Amy Coney Barrett is. It's what moms deal with across the country every single day.

Oh, I think it is totally 100 percent a suburban woman voter appeal. That's Democratic strategist Martha McKenna. Of course, I don't think that's going to work. She calls the Barrett nomination a last ditch effort by Republicans struggling to regain the votes of college educated white women. Polls indicate they're turning against Trump and some incumbent GOP senators in droves. I mean, I think it's the only thing they have left. I do not think that the fact that a mother of school-aged children has been nominated to the Supreme Court by Donald Trump at all erases the previous four years of dangerous policies that Trump has promoted. A recurring implication from Republicans on the Judiciary

Committee is that Democrats somehow just can't accept a Supreme Court nominee who's also a mother of seven. Here's Tennessee Senator Marsha Blackburn again. As today's increasingly paternalistic and frankly disrespectful arguments have shown, if they had their way, only certain kinds of women would be allowed into this hearing room. Political science professor Melissa Deckman of Washington College took note of that. She's written about gender roles, motherhood, and conservative politics. From studying conservative women for a long time, I think that there's a lot of resentment from many women that, conservative women, that women's voices I think that there's a lot of resentment from many women that, conservative women, that women's voices are often depicted as being liberal.

Deckman says putting Barrett's motherhood front and center is grand political theater. It's hard to be critical of moms, right? And so when they're trying to basically frame her as a mom that can do it all, I think it sends this kind of more, maybe not so subtle message that somehow being against Amy Coney Barrett is also being against motherhood. But Democrats say they're deeply concerned that Barrett will roll back women's rights and potentially vote to overturn Roe versus Wade. At the same time, they've taken pains to compliment Barrett on her family. NPR's Melissa Block. While Republicans focus on Barrett's family, Democrats have their own

electoral message they've been trying to drive home this week. You wrote an article in constitutional commentary in 2017 in which you were quite critical of Chief Justice Roberts' decision. Democratic Senator Chris Coons pressed Barrett on her criticism of the Supreme Court opinion written by Chief Justice John Roberts that narrowly upheld the legal underpinnings of the Affordable Care Act. Barrett wrote in a 2017 article that parts of the ruling were, quote, implausible. Here's a bit of her exchange with Senator Coons. Near the end, you are, I think, unmistakably clear in saying, I disagree with the Chief Justice's ruling upholding the Affordable Care Act, and I deem it implausible and unsound. Senator, as an academic, I did express a critique.

And I, you know, you've quoted the language, you've pulled out those few sentences at the end. I guess I'm a little uncertain what it indicates, because as I've said, I have no hostility to the ACA. And if a case came up before me presenting a different question of the ACA, I would approach it with no bias or hostility. But Democrats do not believe a different question on the Affordable Care Act is coming. In fact, next month, the court is scheduled to hear a case that Democrats and legal experts view as a second chance for the court to rule on basically the same issue, whether the Affordable Care Act is constitutional. Barrett has said she believes the upcoming case

hinges on different legal arguments than the ones that have come before the court in the past. Well, Senator Coons, I want to make very, very clear, I think maybe this came up with Senator Klobuchar, that I was not attacking, chastising Chief Justice Roberts at all, for whom I have the greatest respect. Hours after he questioned Justice Barrett, Senator Kuhn spoke to my colleague Ari Shapiro about what she said. Do you believe Judge Barrett is qualified to serve on the Supreme Court, setting aside her ideology? Well, she certainly attended and has taught at a highly regarded law school. She clerked for the Supreme Court. But as I've said before, she has views, as I've dug into her legal writings, her published law review articles, that are not just as conservative as her mentor, Justice Scalia, but are even farther to the right than that in terms of what opinions she would read back to and overturn.

For that reason, I think she's unqualified to serve on the court by her judicial philosophy. Another issue that got a lot of attention this morning is the possibility of a disputed presidential election. And Judge Barrett has refused to say whether she would recuse herself from a case involving the election. She argues it would be wrong to prejudge that question. Are Democrats purely pushing this for political reasons because they want to foreclose the possibility of Barrett helping President Trump to a second term? Well, it would only foreclose that possibility if she recused herself. And it's President Trump himself who put this out there as an issue by saying, I'm nominating her so that there will be nine justices to rule in my favor if the election is not resolved.

Sounds like you're saying, yes, this is political. It's not that we think she is conflicted out or otherwise legally barred from hearing a case like this. We just want to make sure there isn't a surefire vote for President Trump on the court. That's my core concern. And it's a concern that's been put in front of the whole country and this committee by what President Trump himself said. This isn't something I'm inventing. It was President Trump's public statement that raises a legitimate quest at her independence. The Affordable Care Act has arguably been the biggest focus of Democrats because a case challenging the law will come before the court one week after the election. Republicans argue that a judge can't and shouldn't make a

pre-commitment to uphold a particular policy and that it's inappropriate for Democrats to press her to do so. Why do Democrats keep pressing her anyway? This is the number one issue that I hear from Delaware because a majority of Americans actually rely on the Affordable Care Act for health care protection. I'll remind Justice Ginsburg's seat we're filling here. And Justice Ginsburg dedicated her life to fighting for gender equality. Yes, but the central question of why a judge should make a blanket pronouncement on how they'll rule on a policy that's about to come before the court they're seeking confirmation to, that's something that Democrats have resisted when an Obama nominee was up for confirmation. And I mean, why should a different standard apply now?

All right. You may misunderstand what it is we're asking and what it is we're raising. So let me try. And I agree with you. There is a long tradition of judges saying, well, I'm not going to tell you how I would rule on that. And the canons of judicial ethics require that. I understand that. I just think it's important for your listeners and for the viewers who are watching this confirmation process to realize President Trump said I will only nominate someone who will overturn the ACA. And given that there is a case just a week after the election, the whole circumstance seems awfully uncomfortably clear that she is being rushed through in order to provide a deciding vote. Senator Chris Coons of Delaware speaking to my colleague Ari Shapiro.

It's Consider This from NPR. I'm Adi Cornish.