The Daily - The Confirmation Hearing of Amy Coney Barrett

Episode Date: October 14, 2020

It was a 12-hour session. Twenty-two senators took turns questioning Judge Amy Coney Barrett on her record and beliefs.Senator Dianne Feinstein, Democrat of California, evoked personal experience of life before Roe v. Wade and asked Judge Barrett whether she would vote to overturn abortion rights.On that question, Judge Barrett demurred — an approach she would take to other contentious issues, including whether she would recuse herself if a presidential election dispute came before the court.With Judge Barrett’s confirmation all but certain, Democratic senators pressed her more with the election in mind than out of any hope of derailing her rise.Adam Liptak, who covers the Supreme Court for The New York Times, gives us a rundown of the second day of the hearings.Guest: Adam Liptak, who covers the Supreme Court for The Times.For more information on today’s episode, visit nytimes.com/thedaily Background reading: In declining to detail her legal views, Judge Barrett said she would not be “a pawn” of President Trump.With the hearing taking place closer to an election than any other Supreme Court confirmation — and with the Senate Republican majority at real risk — the proceeding was riddled with electoral politics.Judge Barrett’s testimony was a deft mix of expertise and evasion. She demonstrated easy familiarity with Supreme Court precedents but said almost nothing about whether they should stand.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, inside the Supreme Court confirmation hearings of Judge Amy Coney Barrett, we watched with my colleague, Adam Liptak. It's Wednesday, October 14th. Hello, Michael. Hello, Adam.

Thank you for making time because I know this is one of your busy days. Sure is. Okay, so let's tie that. Good morning, everyone. Welcome is. Okay, so let's tie that. Good morning, everyone. Welcome back. Good day yesterday. The family did great. Y'all clean up well. You look good. We should say, Adam, it is the second day of these hearings.

And the reason we're talking to you on the second day is because it feels like this is the main event, the day when members of this Judiciary Committee are actually asking Amy Coney Barrett real questions, engaging in substantive conversation about the Constitution, the court, and the law, and that this is really the session that matters. Yeah, this is the day that everything comes together. There were canned speeches on day one, but it's on day two that we have this marathon session of 22 senators for a half hour each, grilling the nominee and where we get the best sense of her that we're going to get. There'll be one more day of questioning and then she'll kind of retreat from the TV screen and we may never see her again. So we chose well. And in this

second day of back and forth, there were a lot of questions about the same handful of issues. So I figured we would talk to you about those issues one by one. And it felt like the first issue, and it came very quickly, is abortion. So let's talk about what happened there. Judge, it's wonderful to see you here. So the first set of questions from a Democrat, from Senator Dianne Feinstein of California, started with a very pleasant exchange where she acknowledged Judge Barrett's presence and family. Also with the family that I have been observing. They sit still, quiet. You've done a very good job.

I have eyes in the back of my head. But then immediately went into a quite good job. I have eyes in the back of my head. But then immediately went into a quite personal memory. As a college student in the 1950s, I saw what happened to young women who became pregnant at a time when abortion was not legal in this country. I went to Stanford. I saw the trips to Mexico. I saw young women try to hurt themselves. And it was really deeply, deeply concerning. And that sets the stage for a series of direct questions to Judge Barrett about where she stood on the precedents that established a constitutional right to abortion. Do you agree with Justice Scalia's view that Roe was wrongly decided? So Senator, I do want to be forthright and answer every question so far as I can.

And Judge Barrett ducked the question. I'm going to invoke Justice Kagan's description, which I think is perfectly put. When she was in her confirmation hearing, she said that she was not going to grade precedent or give it a thumbs up or a thumbs down. And I think in an area where precedent continues to be pressed and litigated, as is true of Casey, it would actually be wrong and a violation of the canons for me to do that as a sitting judge. Now, that's not unusual. Nominees do that. But she didn't even give some of the usual boiler plate we've seen from previous Republican nominees who would say, well, Roe is a settled precedent.

It's been repeatedly reaffirmed. Of course, I'd have to consider whether overruling it is a high bar and you have to look at various factors. She skipped that first part. And what do you make of that, Adam? The fact that she skipped what you describe as kind of the boilerplate respect for Roe v. Wade and precedent that we have heard from past nominees, including past conservative nominees appointed by President Trump. I have two impulses.

One is that it might not be a conscious thing, and it's dangerous to overread extemporaneous statements. But the other is that the earlier nominees, we suspected what their personal views were. Here we know what our personal views are. What do you mean? Let's see if we can get you up on the screen here. There you go. The floor is yours. Thank you very much. So Pat Leahy, the Vermont here. There you go. The floor is yours. Thank you very much. So Pat Leahy, the Vermont Democrat, participated by webcam. Now, in 2006, you signed an open letter that's published in the South Bend Tribune. And he asked a question about a newspaper ad, a petition. On one side, the advertisement describes

the legacy of Roe v. Wade as apparent. She put her name to a statement that seemed quite categorical, saying that life begins at conception and ends at natural death. Senator, the statement that I signed, as you said, simply said, we, I signed it on the way out of church, it was consistent with the views of my church, and it simply said, we, I signed it on the way out of church. It was consistent with the views of my church, and it simply said, we support the right to life from conception to natural death.

And for the reasons that I've already stated, I can't take policy positions or express my personal views before the committee because my personal views don't have anything to do with how I would decide cases, and I don't want anybody to be unclear about that. There we have a slightly different model of potential Supreme Court justice, someone who has taken a position to be sure as a private citizen and she said that she would not let her private views, her morality, her religion influence how she would judge and yet it would make a lot of

people at least think that she has commitments that may play into how she approaches her job. So ultimately, it feels like we come away with our existing understanding of Amy Coney Barrett's approach to abortion kind of unchanged, but I guess in a way deepened, because she did absolutely nothing to diminish the pretty widespread expectation that if given the chance, she would probably vote to overturn Roe v. Wade. Yeah, I think the hearing, if anything, underscored that sense we already had. So the next big issue that emerged in this hearing was the affordable care, which is the subject of a major case before the Supreme Court that will be heard right after the election and presumably with a Justice Amy Coney Barrett on the Supreme Court. So let's talk

about what we learned about her views on that. Well, we know something about her views about some aspects of the Affordable Care Act. In an exchange with Dick Durbin, the Democratic senator from Illinois, she was asked, Give us an insight how you can be so unequivocal in opposing the majority decisions, but have an open mind when it comes to the future of the Affordable Care Act. Sure. Thank you for that question, Senator Durbin. Well, you've written and spoken about the Affordable Care Act, and it's true.

In a Law Review article, she criticized Chief Justice Roberts' opinion upholding a central provision of the Affordable Care Act in 2012, and she also had problems with a subsequent Affordable Care Act case. And she said, interestingly, I'm not hostile to the ACA. I'm not hostile to any statute that you pass. And the cases on which I commented, and we can talk at another time, I guess, about the context, the distinctions between

academic writing and judicial decision making. But those were on entirely different issues. making. But those were on entirely different issues. Yes, I said those things. Yes, those were critiques of what the earlier cases did. But she said those were addressed to different legal questions. The question in the new case, to be argued next month, is fundamentally about, does the entire law have to fall if you take out one provision of it, if you find one provision of it unconstitutional? Lawyers call that issue severability. If one provision of it, if you find one provision of it unconstitutional. Lawyers call that issue severability. If one part of a law falls, does the entire rest of the law have to fall? And she said she's not written about that. She's not thought about it. She doesn't have a view about it. So to assume that because I critiqued the interpretation of the mandate or the phrase established by a state means that on the entirely different legal question of severability, I would reach a particular result just assumes that I'm hostile.

And that's not the case. I apply the law. I follow the law. You make the policy. And that made you think a couple things. One, I take her at her word. A couple things. One, I take her at her word. I don't think that she or indeed a majority of the Supreme Court is particularly likely to vote to strike down the entire Affordable Care Act based on one provision perhaps being unconstitutional. But it was also interesting that she should think

to say that she's not hostile to the Affordable Care Act. And I kind of think that might have been a workshopped focus group response because Republicans know that they're vulnerable here. That is a political matter focusing the attention of Americans just weeks before an election to the fact that the Trump administration is trying hard in the Supreme Court to strike down the entire Affordable Care Act, including its pre-existing conditions provision, is tough politics for them. Adam, I was struck by just how many Democrats on the Judiciary Committee raised the Affordable Care Act, raised it in very personal terms. I remember Dianne Feinstein mentioning constituents

of hers in California, specifically how much they paid for health care under the Affordable Care Act versus before. There were photos of people who had benefited from the Affordable Care Act in the room. It felt in some ways like they weren't just talking to Amy Coney Barrett. Yeah, this tells us something about the hearing. The result is precooked. So it gives people a stage to talk about the things

they want to talk about. And the Affordable Care Act, Democrats love to talk about. And they have legitimate reasons to talk about the things they want to talk about. And the Affordable Care Act, Democrats love to talk about. And they have legitimate reasons to talk about it, given her writings, given the pendency of this new Supreme Court case. So I think at least part of it, as you say, is not a conversation with the nominee. It's a conversation with the American people and a reminder to them that a law that has become quite popular and its pre-existing conditions provision especially popular is under attack by the Republican Party. So to a degree, Democrats on this committee recognized that there isn't a whole lot of work to be done on this nomination. But there is an election in two and a half, three weeks,

and there may be some voters watching, and they are just trying to talk directly to them. Yeah, Michael, that's right. We'll be right back. Adam, the third big issue in these hearings are recusals, which sounds very technical, but it has a special relevance because of just how explicitly President Trump has spoken about issues before the Supreme Court and how explicitly he has spoken about how he wants his nominees to rule on them. So let's talk about how that comes up on Tuesday. Senator Coons. Thank you, Mr. Chairman. Thank you, Judge Barrett. To you and your family, welcome. I guess I'm on the downside if you're halfway through.

Chris Coons, the Democratic senator from Delaware, asked about this. There's another subject on which President Trump has been, I think, unfortunately, very, very clear about what he hopes for from a Supreme Court nominee. Just days after Justice Ginsburg passed, the president was asked why there was such a rush to fill her seat before the election. And he responded, and I quote, we need nine justices. You need that. The president has said he's going to appoint people to strike down the Affordable Care Act. He's going to appoint people who will count ballots for him in the post-election litigation he sees coming. That he's trying to rush this nomination

ahead so you might cast a decision, a vote, in his favor in the event of a disputed election. Will you commit to recusing yourself from any case arising from a dispute in the presidential election results three weeks from now. Judge Barrett gave what I thought was a fairly strong answer. I want to be very clear for the record and to all members of this committee that no matter what anyone else may think or expect, I have not committed to anyone or so much as signaled. I've never even written anything that I would think anybody could reasonably say, oh, this is how she might resolve an election dispute.

She said there are two pieces to this. One is my personal integrity. 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. I've made no deals with anybody at the White House or anyplace else about how I would vote. I'd never even discussed it with anyone else. But then she said... So that would be on the question of actual bias. And you asked about the appearance of bias.

Correct. Nonetheless, recusal is a difficult legal issue. It requires looking not only at the actual conflict of interest, but the appearance of conflict of interest. And what I will commit to every member of this committee, to the rest of the Senate, and to the American people, is that I will consider all factors that are relevant to that question that requires recusal when there's an appearance of bias. And that she would give serious thought to consulting the law, the canons of judicial ethics and her colleagues about whether she has to recuse herself from such cases. All of that said, and I'm willing to believe her that she hasn't

made a decision and she has an open mind about it. History would suggest that she will not recuse herself from these cases. What do you mean? At the Supreme Court, justices get to decide for themselves whether they're going to sit. There is a kind of presumption against recusal, because in effect you're voting for one side or the other on a nine-member court. By recusing, you're voting in favor of the decision below. Meaning if you take yourself out of a nine-justice decision, you're almost by definition helping determine the outcome of the case.

That's right. Most courts, if somebody recuses, you just get another judge, but you can't do that at the Supreme Court. Mm-hmm. But there is a potential court case that would seem to complicate this just based on timing alone. And that would be if the president's election ends up on the Supreme Court and a justice who he'd put on the court just weeks, days before has to rule on that, then the proximity alone

becomes a kind of a unique dilemma, does it not? I hear you. And then you couple it with the fact that in so many words, President Trump says, that's why I put you there. That makes it a harder case. You're quite right about that. And so is it possible that she does the work and concludes that she could recuse herself? It's not likely, but it's possible. So what else struck you about what Amy Coney Barrett

revealed of herself? Now, you said in your acceptance speech for this nomination that Justice Scalia's philosophy is your philosophy. Do you agree with this particular point of Justice Scalia's view that the U.S. Constitution does not afford gay people the fundamental right to marry. Well, she was asked by Senator Feinstein about whether she might vote to overturn the Supreme Court's decision on same-sex marriage. And she wouldn't go there, but she did make a point that in her private life, she doesn't discriminate. She used an odd phrase, though, in talking about that. Senator, I have no agenda and I do want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference. She says, I have never discriminated on the basis

of sexual preference. Sexual preference suggests that sexuality is a choice, not an innate characteristic. Right. And that's, these days, very much a minority view. And it was a little surprising to some that she should use that terminology. Right. And it would seem, potentially, to have some legal repercussions, because if you view sexuality as a choice, as a preference, versus the near-universal understanding of it as an innate quality of a human being, then you might make legal decisions accordingly. Yeah, the court's equal protection analysis does turn on whether you have a choice in this matter or whether this is a characteristic you were born with. So it would seem to have legal significance too. So these words attracted a lot of attention.

And later in the day, a couple of senators gave her the opportunity to clarify and maybe walk it back. I certainly didn't mean and, you know, would never mean to use a term that would cause any offense in the LGBTQ community. And I'd say she did that halfway. So if I did, I greatly apologize for that. I simply meant to be referring to Obergefell's holding with respect to same-sex marriage. She said she meant nothing by it. She didn't mean to offend anybody, but nor did she engage on the substantive difference between the meaning of the two phrases. So she never quite explained what she meant in using sexual preference, whether it was a deliberate decision.

That's right. And on the one hand, she's a very good lawyer and talker and advocate. So she's not using language casually. All of that said, it is possible that we're putting a little too much weight on a single word preference. Were you lying? Were you lying? Order a center white house. Thank you, Chairman. You know, Adam, there was a moment that really stood out

in this hearing, quite unrelated to really anything we have been talking about so far. And it was a speech, there was not a question in it, by Senator Sheldon Whitehouse. And I wonder if you can talk a little bit about what he said. He was making a very elaborate kind of case for how conservatives and Republicans approach the judiciary. This is a, to me, pretty big deal. So Senator Whitehouse makes the case. I've never seen this around any court that I've ever been involved with, where there's this much dark money and this much influence being used. Where there's this much dark money and this much influence being used. That Republican groups have funded and cultivated candidates for the courts,

and particularly the Supreme Court, and have essentially captured it. Something is not right around the court, and dark money has a lot to do with it. So the five more conservative members of the court, he calls them the Roberts Five, he says consistently vote for business interests and in ways that he says undermine democracy. Right. And his point seemed to be, although he never quite said this because he didn't really address Amy Coney Barrett, was I believe you are the latest judge to enter this pipeline of conservative, anonymous donors advancing their business interest. And it was hard to know if he was in fact making that case, but that seemed to be what he was up to. Oh, I think to the extent he was engaging with Judge Barrett at all, that was his point. But basically what he was doing is giving a lecture.

But basically what he was doing is giving a lecture. And Adam, I have to ask this. When you hear something like this lecture, as you called it, from Senator Whitehouse, as somebody who has covered the court for a long time, is there merit to what he's saying or is it a kind of intellectual stretch? No, the basic point is right, that conservatives and Republicans have done a much better job and have cared more about the courts and have done more than Democrats and liberals have to make the courts a high priority item and to press their advantage. I'm not sure it's as nefarious as Senator Whitehouse makes it out to be. It's more just one more example of hardball politics that, in this instance at least,

Republicans seem to be playing much better than Democrats. You know, Adam, even as I watched the Whitehouse speech, lecture, whatever you want to call it, it did feel like this hearing was, at the end of the day, pretty civil. And the reason that stood out is because the last Supreme Court confirmation hearings that we as a country went through was just brutal. There were accusations of sexual misconduct against Brett Kavanaugh. There was his very angry and emotional self-defense. The chairman of the committee,

Lindsey Graham, lashed out at the Democrats. And this hearing did not have any of that quality, even though almost all the Democrats on this committee believed it to be ultimately illegitimate because of how close it is to the election, because of rules that the Republicans applied to the last Democratic president's nominee, it still had about it a very kind of calm quality. Yeah, the two hearings were quite different. And I think it's a reflection of two things. One is that the Democrats don't think

there's any benefit to them in beating up on Judge Barrett personally. The other is that Justice Kavanaugh was going to and has changed the ideological balance at the court. He was replacing the swing justice, Justice Anthony Kennedy, and is substantially more conservative than Kennedy. So that actually shifts the balance. Judge Barrett makes a 5-4 conservative court into a 6-3 conservative court. So frustrating as this is to the left and angry as they are about what they think of as Republican hypocrisy and the rush to get her on the bench, the stakes are maybe not quite as high. Hmm. This was not a hill worth dying on for them.

Yeah, that's how it seemed to me. One more day, 20 minutes apiece. See you at nine o'clock. So finally, Adam, two days and something like 20 hours into this confirmation process. What are you thinking? I'm thinking that from the perspective of Republicans and President Trump, they have found a candidate who comported herself well, gave off a lot of credibility as far as her legal acumen is concerned, came across as a personable individual,

and will very likely deliver to them just what they want, more of the kinds of results the Roberts Court has already been delivering, helping advance the business agenda, the Republican agenda. Well, Adam, thank you very much. We appreciate your time. Thank you, Michael. The confirmation hearing of Amy Coney Barrett will continue today and is expected to conclude on Thursday. We'll be right back. Here's what else you need to know today.

On Tuesday, the Supreme Court ruled that the Trump administration can shut down the census count ahead of schedule, a move that might result in the exclusion of undocumented immigrants. Trump has said that he wants to leave undocumented immigrants out of the census count, something that Tuesday's ruling may allow him to do because it would let his administration, rather than a potential successor, determine who is included in the final count. Excluding undocumented immigrants

is widely viewed as hurting Democratic states because it may influence the level of federal funding and congressional representation that those states receive. That's it for The Daily. I'm Michael Barbaro. See you tomorrow. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.