Amy Coney Barrett Hearing: Day Two
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Brian Lehrer: Brian Lehrer on WNYC. Now we turn to day two of Judge Amy Coney Barrett Supreme Court nomination confirmation hearings after yesterday's opening statements in which Democrats focused on the Affordable Care Act, and Republicans touted the judge’s accomplishments. The members of the Senate Judiciary Committee have begun asking Judge Barrett direct questions today. Joining me now, to recap the second morning of judge Jamie Coney Barrett Supreme Court confirmation hearing, is Elizabeth Wydra, President of the Constitutional Accountability Center. Elizabeth, thanks for doing this. Welcome back to WNYC.
Elizabeth Wydra: Thank you so much. It's great to be with you.
Brian: We'll play some clips in just a second, but you want to give us an overview of your impression of what's been going on this morning so far.
Elizabeth: Oh gosh. I feel like some of those words you can't say on the radio, but no, in seriousness, it's been somewhat odd morning in that you have a real disconnect, I think, between everything that has gone on prior to this hearing, which is president Trump making clear that he will only nominate Supreme Court justices who will overturn Roe versus Wade.
He's made clear that the litmus test justices who will gut the Affordable Care Act, including its protections for people with preexisting conditions. Senators like Senator Josh Hawley, saying they would only support a nominee if that nominee were going to overturn the right to choose. Then, this morning, both senators and the nominee herself playing coy about her views on these things.
Now, I don't expect her to come in and say, "Yes, I plan to overturn the Affordable Care Act in this particular case," or anything that specific, but you have people like Senator Grassley, Republican Senator, coming in saying that he doesn't know how she'll vote on Roe and who knows what she'll do on the Affordable Care Act. The fact is, you wouldn't have Republican senators working so incredibly hard, rushing through this nominee, right in the middle of an election when they have other really important pressing business like COVID relief, if they didn't think that she was going to help these conservative policy aims that they have been working so hard to achieve through the court.
That's been the morning, then, of course, you have the Democrat. Democratic Senator is pushing back, trying to get her to be more specific about her views on things. The nominee has, pretty much every nominee does, judge Barrett similarly says that she's not going to make any guarantees about how she'll vote. There's a lot of dancing around, I think, some of the real issues at stake here.
Brian: Here's an example of that from this morning, here's the ranking Democrat on the Senate Judiciary Committee, Dianne Feinstein of California, trying to press Judge Barrett on Roe.
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Dianne Feinstein: Do you agree with Justice Scalia's view that Roe was wrongly decided?
Amy Coney Barrett: Senator, I do want to be forthright and answer every question so far as I can. I think, on that 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 thumbs down. 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.
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.
Brian: That really was a pretty direct refusal to take a position on Roe because it's a pending case. Let me give another example, this is about same-sex marriage, which came up this morning. The Senator, who brought this up, was actually South Carolina's Lindsey Graham, the Republican who chairs the committee. Let's take a listen to that exchange.
Lindsey Graham: What's the case that established same-sex marriage is the law of the land.
Amy: Obergefell.
Lindsey: If there was a state who tried to outlaw same-sex marriage, there's litigation, would it follow the same process?
Amy: It would, and one thing I've neglected to say before that's occurring to me now, is that not only would someone have to challenge that statute. If they outlawed same-sex marriage, there'd have to be a case challenging it. For the Supreme Court to take it up, you'd have to have lower courts going along and saying, "We're going to flout Obergefell." The most likely result would be that lower courts, who are bound by Obergefell, would shut such a lawsuit down, and it wouldn't make its way up to the Supreme Court, but if it did, it would be the same process I've described.
Brian: Elizabeth Wydra, I'm curious to get your take on those two clips together, what she said about Roe, which was simply that, as a nominee, she can't take a position on a case that might come before her challenging Roe on Obergefell, the same-sex marriage case. She said something a little more specific there, that if somebody wanted to challenge that precedent of the Supreme Court, it would have to make its way up through the lower courts and then get back to the Supreme Court.
I guess, my question is, do you see that happening with Roe in a way that that could actually come before the Supreme Court, are lower courts being asked to overturn Roe in their jurisdictions in a way that it would even present the high court with that question?
Elizabeth: Absolutely. I think that that threat exists both with respect to Roe and
with respect to marriage equality. The reason is this, when you have activists who are opposed to the right to choose and who are opposed to LGBTQ equality, including marriage equality, when they see conservative justices getting an even greater majority on the Supreme Court, they get the signal that they should renew their challenges to these precedents.
While Judge Barrett makes it seem as if it's very unlikely that any lower court would overturn anything that would otherwise be governed by Obergefell, the case that made marriage equality, the law of the land as a constitutional right, she's neglecting to mention that Donald Trump has really, in an unprecedentedly large number, stacks the courts with ideologically conservative judges, many of whom are opposed to LGBTQ rights.
If you bring the case in the right circuit, and those of us who litigate these cases know which courts are going to likely fall one way or the other, and you bring it up to the court and you find conservative judges in lower courts who are willing to flout Obergefell, who are willing to flout Supreme Court precedent, protecting abortion rights, and you get it up to the Supreme Court and you have a new majority of justices.
Absolutely you could see those precedents like Roe, like Obergefell, gutted by an expanded conservative majority on the Supreme Court. This is why it's so important to look at the Supreme Court seat as really putting everything on the line, because right now we just saw, in the context of abortion rights, a case that was nearly identical to a case that the court had just decided when Anthony Kennedy was still on the bench about whether clinics could be subject to such strong restrictions that essentially abortion rights were meaningless in practice in States like Texas.
The precedent that you can't do that narrowly survived with just a vote by Chief Justice Roberts, but if there is an expanded court majority with Justice Amy Coney Barrett, then I would absolutely expect newly emboldened challenges to Roe and newly emboldened challenges to Obergefell, as well as a host of other rights and guarantees that Americans hold dear. We're talking about environmental protection, we're talking about civil rights laws, and this seat is incredibly important when it comes to that. I want to get to your first clip about Roe. I wouldn't expect a Supreme Court nominee to be given, "Hey, this case is coming up in the courts on these particular facts, how will you rule?" Of course, the nominee is not going to give an answer on that. I think the thing to do is to look at the way that Justice, then Judge, Ruth Bader Ginsburg, dealt with these issues when she was in the exact position that Amy Coney Barrett is now.
She was asked about her views on the constitution, not a particular case, about what is in the constitution, and she made crystal clear, these are her words, "The right to decide whether or not to bear a child is something central to a woman's life, to her dignity. It's a decision she must make herself." Those were the words that Ruth Bader Ginsburg said at her Supreme Court confirmation hearing.
I would love to have a senator read those words to Amy Coney Barrett, say, "You're
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in the same position she was. You want her seat on the Supreme Court. Are you willing to say whether you agree or not with her understanding of the right to equality for women in the constitution?"
Brian: Wow, that's quite a quote from Justice Ginsburg. We will continue in a minute. We have two more clips from this morning's Amy Coney Barrett Supreme Court confirmation hearing, more analysis from Elizabeth Wydra, President of the Constitutional Accountability Center. We may have time for a phone call or two if anybody's been watching the hearing so far and has a comment or a question. 646-435-7280, 646-435-7280. Stay with us.
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Brian: Brian Lehrer on WNYC as we play some excerpts and get analysis of highlights from the Judge Amy Coney Barrett Supreme Court confirmation hearings this morning with Elizabeth Wydra, President of the Constitutional Accountability Center.
By the way, my producer, Amina Srna, who's been monitoring the hearings this morning and pulling these clips, says Senator Feinstein actually did quote from Ruth Bader Ginsburg that reference that you just made to how she supports a woman's right to have a dignity of choice with respect to pregnancy, but that Amy Coney Barrett dodged the question and quoted another justice instead.
Since they can go round and round for a while in these two days of hearings, we'll see if somebody comes back to that quote from Justice Ginsburg and tries to pin her down on it. I want to play another clip. Judge Barrett reaffirmed her allayed allegiance this morning to the late Supreme Court Justice, Antonin Scalia, whom she clerked for and has called her "mentor." Let's take a listen to about a minute of her on that and what that means constitutionally.
Amy: I would say that Justice Scalia was obviously a mentor. As I said, when I accepted the president's nomination, that his philosophy is mine too. He was a very eloquent defender of originalism. That was also true of textualism, which is the way that I approach statutes and their interpretation. Similarly to what I just said about originalism, for textualism, the Judge approaches the text as it was written with the meaning it had at the time and doesn't infuse their own meaning into it.
I want to be careful to say that, if I'm confirmed, you would not be getting Justice Scalia, you would be getting Justice Barrett. That's so because originalists don't always agree, and neither do textualists. Justices Scalia and Thomas disagreed often enough that my friend, Judge Amul Thapar, teaches a class called Scalia v Thomas.
Brian: That's pretty interesting and pretty dense for anybody who's not a constitutional scholar. Elizabeth, do you want to pick apart at all the difference between textualism and originalism that she's making there?
Maybe most relevant to the public at large, I see that you've written previously that her record doesn't reflect the type of conservative libertarianism that we've seen
come out in decisions from Chief Justice Roberts, Justice Gorsuch, or even the late Justice Scalia who was her mentor. She was saying in that clip, "Don't expect you're going to get a carbon copy of Scalia from me." What should we really take from that?
Elizabeth: Yes. Just to generally touch on originalism and textualism. The idea of textualism is that you look at the text of the statute or the constitutional provision that you're looking at, and you can have varying degrees of strictness when it comes to that, you just apply the words. Most people would be obviously much more sensible and look at the structure of the provision, et cetera.
With originalism, one thing that my organization, the Constitutional Accountability Center, has really had at the heart of our mission is the idea that, even if you are a "originalist," meaning you look at the words of the constitution and their original public meaning, the flaw in conservative originalism is that they pretty much only look at the constitution as it existed in the 18th century and overlook the transformative amendments, which are just as much as a part of our constitution as what was there in 1789, that made our constitution and our country more equal, more progressive, more inclusive and more free.
These amendments, after the Civil War, for example, that guarantee equal protection for all, the amendments that guarantee the right to vote free from racial discrimination. Justice Scalia really did not give those parts of the constitution their due. He was a terrible vote on the Supreme Court when it came to equality for women, equality for LGBTQ person, racial justice issues, the right to vote.
There were instances where his originalism did lead to perhaps more libertarian criminal procedure rulings. That's what we were talking about when we looked at the libertarian liberal alliances that sometimes formed between Justice Scalia and some of the more liberal justices. In our review of Judge Coney Barrett's record, we don't really see any of that. There was some of that, frankly, in Justice Gorsuch's when he was a judge, his record, and we've seen a little bit of that from him on the bench, but we don't see any of those even good aspects of Justice Scalia and Judge Barrett's record.
Brian: Interesting. One more clip. Coney Barrett discussed how Scalia's replacement would dramatically flip the balance of power on the Supreme Court during an election year. She was asked about that. She seemed to suggest that was a good reason to block the nomination of Merrick Garland. Back in 2016, Senator Leahy, Democrat from Vermont, asked Barrett to defend that position now. Here's what she said this morning.
Amy: Senator Leahy, I want to be very clear, I think that's not quite what I said in the interview. It was an interview that I gave shortly after Justice Scalia's death. At that time, both sides of the aisle were arguing that precedent supported their decision.
I said while I had not done the research myself, my understanding of the statistics
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was that neither side could claim precedent, that this was a decision that was the political branches' to make. I didn't say which way they should go, I simply said it was the Senate's call. I didn't advocate or publicly support the blockade of Judge Garland's nomination as you're suggesting.
Brian: What do you make of that clip, and what do you make of what she said in 2016 and how that sets up today?
Elizabeth: Whatever she said in 2016 at, as she says, that early point in the blockade of the Garland nomination, the fact is that now it is clear that Mitch McConnell is taking the Senate in a completely hypocritical direction.
If previously when you had a Democratic president, you didn't put nominees to the Supreme Court through confirmation hearings in an election year, and now when we're actually in an election- it's not an election year, we are in the election, millions of votes have already been cast in early voting state. That shows that there's an inconsistency of standards when it comes to the Supreme Court that really makes the court just seem like it is the subject of brute political power.
That is not good for the legitimacy of the Supreme Court, which requires public faith in it in order for it to fulfill its constitutional role. The people need to voluntarily follow Supreme Court rulings because they see that it is a legitimate institution. When you have this just inconsistent political brute force being applied to it, then that's problematic. Judge Coney Barrett, whatever she might have said, has to know now that she is part of a hearing that deeply undermines legitimacy of the Supreme court. She is participating in undermining the credibility of the court by going through this process when we are voting right now not just for the president but for members of the body who would give their advice and consent on the nomination, the senators. In that situation, it's just totally inappropriate for her to be sitting there frankly at this moment.
Brian: That is the last word for this morning from Elizabeth Wydra, President of the Constitutional Accountability Center. Thank you so much.
Elizabeth: Thank you for having me.
Brian: Listeners, I will be back co-hosting with WNYC's Jami Floyd tonight at eight o'clock here on WNYC as we do a one-hour wrap-up show on the whole day's testimony by Judge Barrett tonight at eight here on WNYC. Thanks for listening this morning. Talk to you later.
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