The NPR Politics Podcast - 'Doubt It'll Change Any Minds': Senate Goes Through Partisan Motions For SCOTUS

Episode Date: October 12, 2020

Republican Lindsey Graham said even though views were set, the hearings for Amy Coney Barrett's Supreme Court nomination are important. Republicans pushed back against attacks on her faith that have yet to materialize, while Democrats suggested that Barrett would be the end of the Affordable Care Act in the United States.This episode: White House correspondent Tamara Keith, congressional correspondent Kelsey Snell, and national justice correspondent Carrie Johnson.Connect:Subscribe to the NPR Politics Podcast here.Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Listen to our playlist The NPR Politics Daily Workout.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This is Michelle and Mia calling from Sydney, Australia, where I just put my mail-in ballot in the post box. This podcast was recorded at 2.31 p.m. on Monday, October 12th. Things may have changed by the time you hear this, but we'll still be addicted to American politics. Enjoy the show. Oh my gosh, I love it when little kids have the accents from wherever they were raised. It's so cute. It's adorable. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Kelsey Snell. I cover Congress. And I'm Keri Johnson, National Justice Correspondent. The confirmation hearings for Judge Amy Coney Barrett's nomination to the Supreme Court began today in the Judiciary Committee with opening statements both from committee members and

eventually from the nominee herself. Courts have a vital responsibility to the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches, elected by and accountable to the people. The public should not expect courts to do so and courts should not try. That's a little bit of a preview of her judicial philosophy. What stood out to you

guys in her opening remarks? Judge Barrett once again basically aligned herself with her mentor, the late Justice Antonin Scalia. She said a judge must apply the law as written, not as the judge wishes it were. She mentioned her family and how she used her family to keep things real. On the Seventh Circuit Appeals Court, where she currently works, she says as she's writing an opinion against somebody, she imagines the audience is one of her seven children she's ruling against. Each case is the most important one to the litigants involved. After all, cases are not like statutes, which are often named for their authors. Cases are named for the parties who stand to gain or lose in the real world, often through

their liberty or livelihood. When I write an opinion resolving a case, I read every word from the perspective of the losing party. I ask myself how I would view the decision if one of my children was the party that I was ruling against. She tried to bring home some of those high-minded legal concepts into her life and the lives of probably millions of others. I also thought it was really interesting when she talked about

how courts are not designed to solve every problem or right every wrong. She's basically saying Congress needs to do more legislating. And it would put a lot of the onus on Congress to make the laws for the court to interpret, which in this moment when Congress has been very publicly dysfunctional for a very long time, really probably stands out to a lot of people who are watching this hearing. And, you know, this is, it's an assessment that I think will stick with a lot of people. And she described herself and her family, how she would fit in with the court.

And I might bring a few new perspectives to the bench. As the president noted when he announced my nomination, I would be the first mother of school-aged children to serve on the court. And I know that it would make Senators Young and Braun happy to know that I would be the first justice to join the court from the Seventh Circuit in 45 years. I would be the only sitting justice who didn't attend school at Harvard or Yale, but I am confident that Notre Dame could hold its own, and maybe I could even teach them a thing or two about football. Yeah, she pointed out that she's one of a family of nine.

She and her husband have seven kids, two of whom were adopted from Haiti. And the Supreme Court, of course, has nine justices. So she really humanized that element of her life and tried to project it into the future on the court if she's confirmed. So let's get real about that if she's confirmed phrase, because the committee's chairman, Lindsey Graham from South Carolina, made it pretty clear that she's going to get confirmed. This is probably not about persuading each other unless something really dramatic happens. All Republicans will vote yes and all Democrats will vote no. Yeah, that's a pretty succinct analysis right there. I mean, he, he's talking

there about the committee and that, that, you know, that his expectation that Barrett will be approved out of the committee, which we should say is expected to happen on the 22nd of this month. We do know that there are a few Republicans who have concerns about the process and are upset that somebody was nominated at all. But if you look at, say, Lisa Murkowski of Alaska, she said that she was unhappy with the process. She didn't say she had a problem with the person. And even if Murkowski and Susan Collins of Maine were to vote against Amy Coney Barrett for the Supreme Court, Republicans already have the votes. They had the votes to approve any Supreme Court nominee who is well qualified even before Barrett's name

was announced. So it's one of those situations where the drama of the outcome is kind of been sucked out of the process. And most of the drama here is about the politics. And we're going to talk through that. Let's start on the Republican side. It seemed like they had a couple of lines that that they were using talking about regularly. One was defending the confirmation timeline and attacking Democrats for, you know, potentially maybe wanting to pack the court, though that isn't what most Democrats are arguing for at the moment. Yeah, court packing was something that came up occasionally. But I think the thing that really stood out to me were people like Senator Ted Cruz, who was defending just the way we got

to this, the idea that they're even having this hearing at all just a few weeks before the election. 22 of the presidents we have had have made Supreme Court nominations for vacancies that occurred during a presidential election year. But what has the Senate done? Well, again, the Senate precedent is quite clear and it's something that our Democratic friends do not want to address, do not want to confront. Of those 29 times, 19 of them occurred when the president and the Senate were of the same party. And when the president and the senator of the same party, history shows that

those nominees get confirmed. Well, I will point out that Senator Graham, who chairs the committee, said no one from the Supreme Court had been confirmed after July in an election year. And if Amy Barrett wins confirmation, as we expect she will, it will be a week before the election. So this is unusual. I think it's hard to argue with that. The other thing that Republicans brought up again and again and again was the idea that Judge Barrett was being or would be or could be attacked for her Catholic faith, which hasn't happened yet. But there was a vigorous defense. Here are Republican Senators Kennedy and Sasse. And I know it must hurt for someone of deep Christian faith like yourself to be called a religious bigot

and to have it implied that because you are a devout Christian that you're somehow unfit for public service. And the good news is, whether you think your religious beliefs might be judged wacky by someone else, it's none of the business of this committee to delve into any of that in this context. As with court packing, the discussions of Barrett's faith are two of the arguments that Republicans were previewing for, you know, basically since Barrett was announced as things that they would be discussing in these hearings and places where

they thought they had a potent attack line against Democrats. Now, Democrats, as I talked to them last week, said, yeah, we know what they're going to attack us on and no, we're not going to go there. So it's one of those things where both of them thought they were setting traps for one another and maybe everybody saw the booby trap a little bit too far away and have decided to move away from the traps. Well, we'll see. There's still three days left of this thing. Today, they avoided each other. But I will say, you know, the last we heard of that was from 2017, when some Democrats like Dianne Feinstein of California, questioned Barron about her religious faith and how it might influence her rulings on the bench, going so far as to say the dogma lives loudly in you.

So that is what the Republicans were talking about in their opening statements. We're going to take a quick break. And when we get back, the Democratic strategy for this hearing. Support for this podcast and the following message come from Google. After New York issued its stay-at-home order, Brooklyn-based laundromat Celsius used free Google tools to adapt. They quickly shifted to drop-off service only, enabling online booking on Google so customers could reserve drop-off times.

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drug squad pull up, everybody around. New from NPR Music. Listen to Louder Than a Riot. And we're back. And if you were watching this hearing on TV without looking at any of the captions, you might think that this was a hearing not about a Supreme Court pick, but about the Affordable Care Act. Because Democratic senators, it was like basically every time they got up to speak, it was an infomercial for the ACA. Yeah. And that's something that they have been planning for a couple of weeks now.

They have since basically since Barrett's name was announced as the nominee, they have gone through and coordinated. I'm told that they had lots of phone calls. There were staff phone calls. There were member-to-member phone calls trying to agree on the best way to approach this. And they agreed that they needed to focus very heavily from the start on the Affordable Care Act, and they needed to personalize the way the court could impact health care coverage and particularly coverage of preexisting conditions.

Now, they point to a case that will be before the Supreme Court on November 10th, could impact health care coverage and particularly coverage of pre-existing conditions. Now, they point to a case that will be before the Supreme Court on November 10th, one week after the election, that they say could overturn the ACA. And so they drove it home with photos and individual stories of their constituents and their interactions with the health care system and connected Barrett with the possibility that those protections could go away. For years, Barrett put off going to the doctor because he was, like many Americans, afraid he could not afford it. But when the Affordable Care Act was passed, he finally got the coverage he could afford. Conor is a superhero, but he's always had a real sidekick. He's had the protection of the Affordable Care Act. If Republicans succeed in striking down

the Affordable Care Act, insurance companies will be able to deny coverage for children with serious conditions. Children like Micah. One thing that I don't think we should lose sight of here is the notion that if President Trump gets a third justice appointed to the Supreme Court, as he now appears on track to do, that would have the potential to change the trajectory of the court for potentially a very long time. We're talking not just about health care, possibly, but about abortion rights and the conflict or tension between religious freedom and the rights of LGBTQ people and climate and gun rights and all sorts of other things. And that's why Democrats like Senator Dick Durbin, who's been around a long time from Illinois, were pointing out that to some

extent, Barrett is walking into the situation where the president has already prejudged a lot of this stuff and has come out and said he wants a justice who will turn out or overthrow the ACA. He wants a justice who will get rid of the landmark precedent on abortion rights Roe v. Wade. This president has never suffered an unuttered thought. He gives us 25 tweets a day to tell us what's going through that fertile mind. We know what he thinks because he tells us what he thinks and he made it clear that he wants his Supreme Court and this nominee to join him in eliminating the Affordable Care Act.

This is his litmus test. How many times have we heard it? And so she's going to have to answer a whole bunch of questions or dance around a whole bunch of questions about those things in the coming days. One other thing that we were watching for with this hearing was vice presidential nominee Kamala Harris of California is on this committee. And and she also spoke. She started out making a point that a lot of Democrats made as part of this. She was remote. She was not there in the room. She was in her Senate office

making the argument that this hearing shouldn't be happening at all. This hearing has brought together more than 50 people to sit inside of a closed door room for hours while our nation is facing a deadly airborne virus. Two members of the committee have tested positive for COVID. One of them, Mike Lee, showed up today. He said it was OK with his doctor to do so. You know, that ties together two of the things that Democrats think are their most potent arguments in the election, health care and coronavirus and the handling of the coronavirus. And Harris was there in some ways to tie those two pieces together, because as much as she is

not campaigning right now, everything she does is campaigning right now. Well, we will be back tomorrow because the hearings continue tomorrow. Questioning begins. And according to Lindsey Graham, could last a very long time. So we will most likely be back in your feeds later than normal after that first day of questioning. I'm Tamara Keith. I cover the White House. I'm Kelsey Snell. I cover Congress. And I'm Keri Johnson, national justice correspondent. And thank you for listening to the NPR Politics Podcast.

And a special thanks to our funder, The Little Market, for helping to support this podcast.