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Brian Lehrer: Brian Lehrer on WNYC. I should have said at the end of the last segment that tomorrow we will continue in this run of eight consecutive days of racial justice issues confronting Trump and Biden in the presidential campaign. Right now, it's day three of the Judge Amy Coney Barrett Supreme Court confirmation hearing, the second round of questioning. Joining me now to recap this third morning of Judge Barrett's Supreme Court confirmation hearing is Kate Shaw, law professor at Cardozo Law School, ABC Supreme Court contributor, and co-host of the Strict Scrutiny podcast. As we get ready to play some excerpts from this morning's testimony and talk about what they mean, Professor Shaw, thanks for coming on WNYC today, hi.

Kate Shaw: Thanks so much for having me.

Brian: Let's play a clip right away. Lindsey Graham, the Chairman of the Judiciary Committee, got day three underway.

Lindsey Graham: It is a very give and take society called America, but there's one group in America, I think, that's had a hard time [unintelligible 00:01:11] conservatives of color, and women conservatives. There's an effort by some in the liberal world to marginalize the contribution, because you come out on a different side of an issue, particularly abortion. This hearing to me, is an opportunity to not punch through a glass ceiling, but a reinforced concrete barrier around conservative women. You're going to shatter that barrier.

Brian: Professor Shaw, that's not a legal question for you as a law professor, it's really a political question, and a cultural question of what role do conservative women or conservative ideology among women, what role does it have in politics, what role does it have in some would and some wouldn't call feminism?

Kate: Right. These hearings, of course, are a combination of political events and legal events and cultural events. I think in some ways, what we hear from the members of the Senate is more revealing than what we hear or don't hear from the nominee herself. She's not going to talk about being a conservative woman or being a pro-life woman, but the senators on the committee are saying that.

I think that they are very much hoping that the fact that this is a very conservative nominee, and also a woman, the first mother of school-aged children to be nominated to the Supreme Court makes this a pathbreaking nomination. In some ways cementing this rock solid conservative majority on the court, including potentially around things like abortion and the future of Roe versus Wade, is something that I think that they are very much welcoming doing, the Republican Party that is, with a female nominee, as opposed to another conservative male nominee in the mode of Justice Gorsuch and Justice Kavanaugh.

Brian: Funny enough, I think we're seeing in the polls, a crash in female support for Trump. Now, he won among white women, at least, in 2016, which surprised some people after the Access Hollywood tape came out in early October of 2016. That support according to the polls, even among those women, white women, largely suburban, as we were talking about in our last segment, has been going down. There's a gender issue, certainly, or let's say a disparate perception by gender of President Trump.

Then I guess with this nomination, you get to the question of what notion of a woman in politics, where does it fit in when that woman is staunchly for the second amendment, is against abortion rights, doesn't think that the constitution provides for same sex marriage, things like that?

Kate: That's right. I think that it is convenient for President Trump to have this female nominee right now with his numbers as you have said, very cratering, as compared to 2016 among women. I think that that is something that I would expect to hear a lot about, about future Justice Barrett, about having elevated this conservative woman in this historic way, and the hope that that will reap some electoral benefits for the President.

Of course, it resonates in a very particular way to have Judge Barrett nominated to fill the vacancy left by the death of feminist icon Justice Ruth Bader Ginsburg. Of course, Justice Barrett would be a very different kind of justice in all of the issues presumably, you have just identified on the second amendment on gay rights in general, same sex marriage in particular, I think almost certainly on abortion.

She has deflected really specific answers to any of those questions about the way that she would rule in those cases. I think it's pretty clear in the way that she has described her methodology of constitutional interpretation, which is an originalist methodology, that it's hard to see how she would come out differently from her old boss, Justice Scalia, who voted consistently against gay rights as having essentially no place in the constitution as voting in favor of abortion restrictions and against the right protected by Roe versus Wade. I think in every specific concrete constitutional domain, she is almost certain to be one of the most conservative justices on the Supreme Court if, in fact, she is confirmed.

Brian: Speaking of Justice Scalia, Senator Dianne Feinstein, Democrat from California, the ranking Democrat on the Judiciary Committee brought up the late Justice Scalia. Here's a little bit of how Judge Barrett responded to a question about his influence on her philosophy.

Judge Barrette: When I said that Justice Scalia's philosophy is mine too, I certainly didn't mean to say that every sentence that came out of Justice Scalia's mouth or every sentence that he wrote, is one that I would agree with. When I said Justice Scalia's philosophy is mine too, what I meant is that his jurisprudential approach to text, as we've talked about originalism and textualism, is the same that I would take. I think as for the Voting Rights Act, I think that it was obviously a triumph in the civil rights movement.

Brian: Professor Shaw, I'm curious your take on the Scalia factor in these hearings, because I see it playing both ways. On the one hand, in a political context, the republicans on the committee are trying to say to the electorate, "Here's the heir to Scalia." She even clerked for Scalia, and she has said explicitly that his judicial philosophy influenced hers, so we're doing what you elected us to do. Keep a very conservative Supreme Court to the extent that we can. The democrats are raising Scalia, not necessarily negatively. I think they're starting to argue or trying to argue on a number of points that Judge Barrette would be even more conservative than Antonin Scalia, and therefore she's extreme.

Kate: I think that's well-described. In the clip that you played, Judge Barrett makes the point, which is, of course, right, that not all originalist come out the exact same way on every question. She referred yesterday to some of the space between Justice Scalia and Justice Thomas, another avowed originalist on the court in several cases. Originalism doesn't necessarily produce a formulaic answer to every constitutional question. I think she's right to point that out.

In some ways, that's something of a condemnation of originalism, which when it burst onto the scene as a theory of interpretation in the 1980s, seemed to promise more predictable outcomes and less room for judicial discretion and subjectivity than some of the decisions of the Warren Court mostly fairly [unintelligible 00:08:21] decisions in the criminal procedure and other areas that originalism was in some ways seemed to respond to.

In terms of, would a Justice Barrette be more conservative than a Justice Scalia? I think in some areas, the answer is very likely, yes. The second amendment is one area, Justice Scalia wrote, the majority opinion in the District of Columbia versus Heller, the 2008 opinion in which the court identified an individual right to gun ownership in the Constitution, but there's a law of passage in that opinion that says that this opinion should not be read as casting doubt on long standing prohibitions on things like felons in possession of firearms.

Judge Barrett actually wrote a long dissent on the Seventh Circuit basically disagreeing with a panel opinion that upheld a conviction for a convicted felon for possessing a firearm. She basically said, "Notwithstanding that language and Heller, there should be a case by case analysis over whether individuals who were convicted of crimes, and here it was a non-violent crime for which the individual had been convicted, should categorically forfeit their rights under the Second Amendment."

Now, Dick Durbin got into it with her a little bit about some of the language in that opinion, which you read as sort of privileging Second Amendment rights over voting rights, and she said, "That's not a fair characterization." It is a reasonable reading of her opinion. I bought them that does suggest that she would go further in protecting gun ownership even than Justice Scalia did in the Heller opinion. There are other examples, I think, as well.

Brian: To me, that might have been the single most interesting aspect of yesterday and potentially troubling, Judge Barrett trying to explain her view, that being a felon shouldn't necessarily mean you lose your gun rights, but she wouldn't say the same thing in the same way about felons who served their time losing their voting rights.

Kate: Yes, and to be honest, with the non-answers that she gave on some of the questions on matters related to democracy and access to voting, I found the most troubling, in that, she really wouldn't engage on the substance at all. In some of these hypotheticals, this is to pivot a little bit from access to the ballot to some of the president's rhetoric around the election, but she was asked several questions. One about whether the president has the right to unilaterally change the date of the election. She said, "I'd have to study the matter. I'd have to talk to my colleagues and my law clerks, research, and read."

In some ways, I was really surprised at that answer. I was surprised she didn't come back after a break and try to clean it up because the answer under the constitution and the statutes is very clearly and categorically, no, the president has no unilateral authority to change the date of the election. She gave a similar non-answer to the question about whether presidents should commit publicly to peacefully departing the office if they lose an election. Senator Booker asked that question. She said, "I think you're trying to draw me into a political debate." Because there's this question of whether President Trump has said he will leave office, and I think as a judge, I shouldn't go there. There too, I think, from basic democratic principles, you don't have to get into a political debate to say, of course, the unsuccessful party after an election should peacefully depart the office. Booker pressed her, and then she said, "Well, we do have a tradition of peaceful transfers of power," but she still wouldn't say it, "Of course, all presidents should commit to that value." There, I think the non-responsiveness was concerning, in particular, I think in that there's an interest in a nominee demonstrating independence from an appointing president at this really key moment. I'm not sure she really did that.

Brian: Kate Shaw from the Cardozo Law School here in New York. The Affordable Care Act came up again. It's of course the biggest point of conversation for the Democrats in this confirmation hearing Judge Barrett dodged questions about the ACA again this morning, here's an example.

Diane Feinstein: Do you agree with originalist who say that the Medicare program is unconstitutional?

Judge Barrett: Well, let's see. I can't answer that question in the abstract because as we've talked about the no hints, no forecast, no previous rule.

Brian: Professor Shaw, there was Judge Barrett with Diane Feinstein asking the question, the ranking Democrat on the committee, Democrat of California. Is it fair to expect anything else of Judge Barrett or any nominee, for that matter, when senators are focusing on a particular bill that they want to protect a particular law or a particular case that we know is headed to the court?

Kate: I think she's performing very consistently with nominees in the modern era. She keeps invoking this justice Ginsburg statement, no hints, no forecast, no previews. Ginsburg definitely did say that when she was before the committee, although it should be said in some senators that made this point, that Justice Ginsburg, then Judge Ginsburg, was a good deal more forthcoming than judge Barrett has been, at least, in terms of her willingness to talk about the court's previous cases, talking about future cases is a different matter entirely. I do think judge Barrett is well within her rights, and in fact, within the bounds of the ethics of these nominees, not to say anything too concrete about this case that is currently pending in the Supreme court that is set for argument one week after the November 3rd election. I'm not sure it's the most effective strategy the senators are using to try to press her on the specific case.

In some ways, they might be better served just to focus on the fact that the Trump administration and a good number of Republican attorneys general are the ones asking the Supreme court to throw out the Affordable Care Act in its entirety, including the protection against discrimination on the basis of preexisting conditions. That in some ways, is the political point that I think they need to make, which is that this question is before the court at all because the Trump administration and a number of red states have asked the court to answer the question and to answer it in a way that throws out the ACA, but Judge Barrett is, I think, well, within her rights to say, "I can't offer you any specifics."

I think that they're getting somewhat more traction in trying to probe her methods of interpretation. I think it's right, there is evidence in the way she's approached other cases and in some of her academic writing that she might be receptive to the argument that the entire statute should go if just one provision is unconstitutional, but I don't think they're going to get her to say anymore. I think a strategy change would probably be well-advised.

Brian: That's the nature of the case about to come to the Supreme court regarding the Affordable Care Act. If one part of it has been found unconstitutional, does that mean the entire Affordable Care Act has to be thrown out? You mentioned Cory Booker asking Judge Barrett yesterday, whether a president should commit to a peaceful transfer of power, and she really kind of declined to express a view today. Here's another clip she said that no person is above the law, when asked by Senator Leahy of Vermont, that starts with Leahy.

Senator Leahy: President Trump claims he has an absolute right to pardon himself. Now for 200 years, the Supreme Court has recognized common-law principles that nobody can be a judge in their own case. I had to go way back and reread Calder versus Bull, I had to see that. Would you agree first that nobody is above the law? Not the president, not you, not me. Is that correct?

Judge Barrett: I agree no one is above the law.

Senator Leahy: Does a president have an absolute right to pardon himself for a crime? We heard this question after President Nixon's impeachment.

Judge Barrett: Senator Leahy's so far as I know that question has never been litigated. That question has never arisen. That question may or may not arise, but it's one that calls for legal analysis of what the scope of the pardon power is. So because it would be opining on an open question when I haven't gone through the judicial process to decide it, it's not one in which I can offer to view.

Brian: Leahy is obviously making the political point, "Look, this nominee won't even say the president can't undertake the egregious act of pardoning himself for a crime, but for you as a law professor, Professor Shaw, is she right on the law that it's never been litigated so she really can't take a position?

Kate: Well, she's right that it hasn't been litigated in the courts. The department of justice internally has opined on the question, but I actually think again, it's fair for her to resist answering that question squarely, but I think she might have said more just in terms of announcing general principles. There's nothing that stops a sitting federal judge from saying the president is not above the law. That's pretty uncontroversial. I wish she had gone further than just saying, "No one is above the law," to actually say the words, "The president isn't above the law," because that was really the heart of Leahy's question and she resisted saying so.

Brian: There we have to leave it with Kate Shaw, law professor at the Cardozo Law School, and ABC News Supreme Court contributor, and co-host of the Strict Scrutiny Podcast. Thank you so much for hopping on with us.

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