On Monday, the Senate is scheduled to begin its confirmation hearings for Amy CONI Barritt, President Trump's Supreme Court nominee. Our colleague Siobhan Hughes has been following Barret's nomination and she says the timing of the confirmation process is unprecedented.
There is an expectation among Republicans that she would be confirmed roughly a week before the elections. There has never been a confirmation this close to an election.
The unusual timing has sparked intense debate. Democrats have criticized Republicans for rushing the process. They say voters should decide who gets to pick the next Supreme Court justice.
Republicans, on the other hand, have said now that there's a nominee, the focus should be on her qualifications for the role. This political firestorm is what will confront in her hearings next week. But she has been in this kind of situation before.
At her confirmation hearing for the federal appeals court back in 2017, Chairman Grassley and Ranking Member Feinstein, I'm grateful to both of you and to the committee for taking the time to consider my nomination.
What happened in Twenty Seventeen offers clues about how Barrett will handle the hearings next week, one of the biggest moments of her career. Welcome to the journal, our show about money, business and power. I'm Kate Lindborg. It's Friday, October 9th. Coming up on the show, what Baratz Twenty seventeen hearing tells us about next week's battle over the future of the Supreme Court. At Facebook, we've taken critical steps to prepare for the U.S. elections. We've more than tripled our safety and security teams, implemented five step add verification and launched a new voting information center.
Learn more at FT.com about elections. After Justice Ruth Bader Ginsburg passed away last month, President Trump nominated Amy CONI Barrett to take Ginsburg's spot on the Supreme Court. Can you kind of introduce us to Amy CONI Barrett? Yes, Amy, Connie Barrett is a conservative. She is Catholic, which is something she wears on her sleeve, a mother of seven children, 48 years old. She comes with a remarkable pedigree.
She clerked for Antonin Scalia, one of the leading conservative judges, after clerking on the Supreme Court.
Barrett eventually went on to become a law professor at the University of Notre Dame. And then in 2017, Barrett was nominated to the federal appeals court and she had to appear for a confirmation hearing before the Senate Judiciary Committee, many of the same people she'll be in front of next week. Shavon says that confirmation in 2017 could be a good guide for what to expect for two reasons substance and tone.
As a substantive matter, you get a sense of how the judge handles some very difficult questions. And then, as a matter of style, you also see how she's able to interact with the senators. Is she able to show impulse control? Does she have emotional discipline? Can she be respectful even when she's getting some hardball questions? Basically, her job was not to make any missteps.
I don't have an opening statement, but I would like to introduce my special guests. First and foremost behind me is my husband, Jesse Shavon says that Barrett handled difficult questions from the committee in a few different ways. One of her primary strategies was to refer to a lot of legal minutia in her responses.
She referenced case law and the President Johnson vs. Eisentrager head cut against the majority's position and heady concepts like the suspension clause, which we identified current issues in the suspension clause and controversies and the post conviction. She displayed an encyclopedic knowledge of the laws and the precedents. And so even if she said something illuminating, it would be very, very hard for the public to understand that.
But there were other exchanges where Barrett relied on a different approach, providing narrow answers to broad questions. She used this approach when senators tried to nail her down on one big question how she thought about Roe v. Wade, the landmark Supreme Court decision that established a right to abortion.
Some Democratic senators wondered whether Barrett's deeply held Catholic faith might lead her to undermine Roe v. Wade.
Democrats wanted to know if Judge Barrett thinks that Roe vs. Wade is something that counts as a super precedent.
If it's something that has become so embedded into the nature of the country that a judge could not overturn it.
One senator in particular who asked about Roe v. Wade with Senator Dianne Feinstein, who brought up an article that Barrett wrote in 2013, Senator Feinstein notes that Barrett has written an article in which she runs through a whole list of Supreme Court super precedents.
You listed Supreme Court super precedents, but you left out Roe v. Wade. You suggested that Roe is not a super precedent.
And Judge Barrett has a very, very deft response. Thank you, Senator Feinstein. That wasn't my list. I was addressing arguments that had been made by other professors, serious, well-respected scholars like Richard Fallon at Harvard.
She says, oh, that's not my list. I was talking about a list that scholars agree count as super precedent. And so she wiggles her way out of being pinned down.
But later on in the hearing, Feinstein said she wasn't totally satisfied with Barrett's responses.
Why is it that so many of us on this side have this very uncomfortable feeling?
The most remarkable exchange is when Dianne Feinstein says to her that there is a difference between dogma and the law too different.
Those are supposed to be separate.
And what she tells Judge Barrett is when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, the dogma lives loudly within you, implying that the judge would not be able to separate her religious beliefs from her rulings as judge in the moment.
You can see Barrett remaining perfectly motionless. You can see her brow furrow, but she doesn't immediately respond.
And it is only when Dianne Feinstein asks her specifically to respond.
Would you like to make a comment, Professor, that Barrett does weigh in?
I'm being considered for a position in a court of appeals, and there would be no opportunity to be a no vote on Roe. And as I said to the committee, I would faithfully apply our Supreme Court precedent, OK, she was going to serve on an appellate court.
And when people asked her her position about Supreme Court precedent, the easy answer was, as an appeals court judge, I would be obligated to abide by Supreme Court precedent and I would do so.
Some Democrats seemed unsatisfied with Barrett's technical answer, but Republicans in the hearing took greater issue with the question itself.
Other Republican senators used their time to push the idea that Democrats had essentially established a religious test that the Democrats were going after a judge buried on the basis of her religion, and that their approach was appalling.
Barrett was confirmed to the federal appeals court, but the memory of Feinstein's exchange over dogma lingered.
This set the conservative world on fire, and it was such a rallying cry that at the White House, White House lawyers had mugs made and the mugs had something like The dogma lives loudly within you. And if any of those White House officials wanted to show their conservative credentials, they would go into the morning meeting with those mugs.
That moment has stuck for years since Republicans continue to bring it up as evidence that Democrats are ready to attack people over their faith.
And we particularly hope that we don't see the kind of attacks on her Christian faith that we saw before. Vice President Mike Pence even mentioned it at the debate earlier this week, expressed concern that the dogma of her faith lived loudly in her on Monday.
Many of the same senators from that twenty seventeen hearing will reconvene for hearings that are even more important for the Supreme Court. That's after the break.
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She checks a lot of boxes for the administration.
One, she's young, so she has a chance to make her mark on the court for a generation or more. Number two, she's a woman. And for President Trump and Republicans, it was important to pick a woman for the slot that was previously held by Ruth Bader Ginsburg to blunt any Democratic attacks that the Trump administration is anti woman.
Republican senators immediately applauded the pick.
Republican senators praise her temperament. They praise her as someone in the mold of Antonin Scalia. Berrett is somebody who believes that the Constitution is the document that should prevail. She's a textualist. And this is an approach that conservatives favor because they think it guards against what they call judicial activism or liberal interpretations of existing statutes. The other thing Republicans like about her so much is they see her as someone who has grace under pressure. There is little doubt that her approach was highly effective in twenty seventeen.
They see her as someone who is going to be able to glide through again.
One thing that many Republicans haven't talked about publicly is what her position might be on Roe v. Wade, something she studiously avoided in her 2017 hearing. But there are signs that Barrett could help Trump achieve his long standing goal of overturning Roe v. Wade. While Barrett was careful to avoid the question of Roe vs. Wade in that 2017 here. And she has telegraphed what her sentiments are and other ways, she has cast a couple of dissenting votes while serving as an appeals court judge that suggests she's squarely in line with the anti-abortion movement.
And some of her writings also suggest that she isn't inclined to think of Roe vs. Wade as the sort of settled law that no justice would want to overturn. And so for Republicans, even if most of them are not saying it publicly, there are signs that she is a good ideological fit.
But many of the reasons that Republicans see her as a good fit are cause for concern among Democrats.
Democrats have expressed concerns that she could overturn Roe vs. Wade. But even if that's not in the cards, Democrats worry that Judge Barrett could participate in decisions that uphold state level restrictions on abortion access. And they know there are a lot of cases in the pipeline at the lower court level that if they came to the Supreme Court would in fact achieve that goal.
And this time around, there's another issue that's also front of mind for Democrats, the fate of the Affordable Care Act. Several years ago, Chief Justice John Roberts sided with the liberal wing of the Supreme Court to uphold the ACA. It was a decision that Barrett criticized at the time. Now the ACA will be back in front of the Supreme Court.
The Supreme Court has on its docket the week after the election a case that challenges the individual mandate, the legitimacy of that mandate in the ACA. And so should Judge Barrett be confirmed before the elections, as Republicans hope she would be present for oral arguments and thus in a position to vote in that case.
But as Democrats question Barrett on abortion and health care, they'll need to be careful not to make the mistakes they did in 2017.
Reporters have been asking Democrats directly, are you going to bring up Judge Barrett's religion? And to a man, to a woman, each of the Democrats says, no, they are not going to bring up her religion. It's very, very clear that Democrats are going to take or at least try to take a different tack this time around to avoid the fireworks they unintentionally set off in twenty seventeen.
But no matter how Democrats approach their questioning, they're still likely to be outvoted by their Republican colleagues. So it seems like the votes are basically decided, why do next week's hearings matter?
Next week's hearings matter a lot for political reasons. Right now, Republicans are very, very much on the ropes. Donald Trump is not doing well in the polls. More Republicans are in tossup races than previously. Chairman Lindsey Graham, his race just got moved to a toss up. That's a seat that had been solidly Republican. And so for Republicans, this is their chance to shore up the conservative wing of their party for Democrats. The goal is the opposite.
It is a chance to show the American public what they believe is at stake in this nomination.
It's also a chance for them to ask why Republicans are rushing ahead with a Supreme Court nomination when a coronavirus aid package has not been finalized. It's going to be Democrats way of saying Republicans are prioritizing the courts at the expense of the entire American public.
Regardless of the political points scored on each side, the enduring impact will be the change that Barrett brings to the Supreme Court.
There would be a six to three conservative majority. It would be extremely conservative. And in fact, it would be so conservative that the court's conservative wing would be able to prevail even when one of them took a position more in line with the liberal minority. The rightward march of this court in just a few years has been nothing short of breathtaking. And the fact that this is happening right before an election in the middle of a pandemic really puts an exclamation point on the remarkable ness of this moment.
That's all for today, Friday, October 9th. The Journal is a co-production of Gimblett and The Wall Street Journal. Your hosts are Ryan Knudsen and me, Kate Limbaugh. The show's made by Katherine Brewer, Gerard Cole, Pia Gadkari, Annie Minoff, Afif Nosily, Ricky Novitzky, Caitlin O'Keefe, Sarah Platt, Willa Ruben, Annie Rose Strasser and Rob Zebco.
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