The hearing began with a bang with one of the most unadorned and unambiguous statements in favor of originalism by a modern Supreme Court nominee. Judge Barrett declared that the meaning of the language does not change with time.
I was also struck by Barrett’s reference to “super precedent” as a concept raised by others. That was discussed in my column yesterday.
9:24 – Barrett just said that even if a case was wrongly decided, a justice must look at “reliance” on that decision before overturning the case. She confirmed that the issue is not solely whether the precedent was based on a flawed interpretation.
9:25 – Barrett was just asked about recusal from the ACA case. She correctly noted that the case is on the narrow issue of severability. She said she would look at Section 455 and she declined to answer the question citing Ginsburg. There is no reason for her to recuse herself in my view.
9:32 – Feinstein went straight to abortion. She noted that Ginsburg stated that in her confirmation hearing that the Constitution supports abortion. That is a good set up for the question since it negates the impact of the “Ginsburg Rule.” Feinstein references Casey and Scalia’s dissent that Roe should be overruled. Barrett pivoted nicely by citing Kagan rather than Ginsburg. .Kagan refused to answer the same question saying that she would not give “a thumbs up or thumbs down” on abortion questions. The Democrats supported her in refusing to answer the questions.
9:44 – Feinstein has returned to the ACA stories of those impacted by health costs. It is another deeply troubling account and an excellent example of the need for national health care. However, as I have previously stated, this is unfair to Barrett. These are not her victims and she is not supposed to decide cases based on her support for an underlying policy. Barrett correctly answered that such cases most be reviewed on the basis for the law and not these policies. Policies are for Congress. Yet, Feinstein just said her vote would turn on whether she thought Barrett would vote against the ACA.
Voting on a confirmation based on the expectation of a nominee’s vote on a pending case is deeply troubling.
9:49 — Barrett is again trying to explain that the issue in California v. Texas is not an overarching review of the ACA but a narrow issue of severability — an issue that she has not previously addressed.
9:50 — Feinstein is now asking for an opinion on a possible challenge to Trump on interfering with the election. Barrett clearly noted that “we don’t want judges to be legal pundits.” It is a wildly inappropriate question for a nominee before or after the Ginsburg Rule.
9:55 — Feinstein is simply going through a litany of hypotheticals designed to get Barrett to refuse to answer as did Kagan and other nominees before her. This seems an attempt to increase the number of the “she refused to answer” examples. However, her position is the same that justices like Kagan who were supported by Feinstein in refusing to answer.
10:08 — Grassley just asked about legislative history. Barrett expressed a willingness to consider such evidence but that the text must control. Barrett reaffirmed Scalia’s concern about turning to legislative history when the text is clear. She said “as a general rule” she does not look at legislative history but does not rule it out. The indication is that Barrett is at best leery of the use of legislative history like her mentor.
10:17 — Grassley is repeating the Ginsburg rule against giving hints or forecasts on pending or future cases. It does reveal the difficulty for Democrats in seeking to Barrett to contradict the rule most associated with Ginsburg. Barrett said that she agrees with the Ginsburg rule as something that “reinforces judicial independence.” Barrett also repeated that no one has asked her before her confirmation about his view on any case.
10:22 — Leahy is again returning to the ACA about the millions covered by the Act. Again, if it were 2 or 2 million or 22 million, it would not have bearing on the narrow legal question of severability involved in California v. Texas.
10:25 — Leahy is continuing to question Barrett on the cost of insulin. A rather bizarre line of questioning. He added “I would not expect you to.” Precisely. She is not the nominee for the Secretary of Health and Human Services.
10:30 — This is getting a bit bizarre as Barrett is asked if she knows a variety of political facts that have no relevance or bearing on her confirmation. Her substantive role in such questioning is about as substantive as the ficus plant in the corner of the Committee room.
10:32 — Leahy just again asked her to recuse herself despite the the lack of any basis for such recusal. There is no conflict of interest in Barrett sitting on such a case. Indeed, we should want a full court to decide such a challenge rather than risk a tie.
10:44 — Leahy just brought up the Box case in 2018 and Barrett’s dissent. However, it is notably that the Supreme Court supported her view and reversed on that issue.
10:47 — Leahy just raised her signing the statement on abortion. She said that she signed it on her way out of church. The statement reaffirmed her moral opposition to the abortion. However, she insisted that her personal views have no bearing on how she would rule as a jurist.
10:50 — Leahy just asked about the Blackstone group and tried to tie her to the views of the groups. However, she simply spoke to the group and noted that she had no idea of literature from the group on issues like same-sex marriage. Barrett then invoked Kagan again on the issue of stating her position on same-sex marriage.
10:57 — In responding to Sen. Cornyn, Barrett again rejected the notion that policy weighs into a jurist’s decision.
11:03 — Barrett was just asked about the establishment clause by Cornyn. She gave a basic balancing response between free exercise and establishment values.
11:05 — Durbin just expressed confusion on “where does this notion that you would violate your oath come from?” He insisted that Trump is to blame. He might however want to remove the giant posters showing people relying on the ACA and the statement of his colleagues like Booker that they will vote against her because of her expected vote against the ACA. Durbin then incongruously launched back into the ACA.
11:12 — Barrett just said that watching the George Floyd video had a huge impact on her as the mother to two black children. She said that she wept with her children in watching the video.
11:16 — Durbin is raising the Kanter case in 2019 on the Second Amendment. He is slamming Barrett for her dissent. Kanter was convicted of selling fraudulent shoe inserts. He was not a violent offender. Barrett questioned the basis of taking away his Second Amendment rights without showing a violent risk. This was the most substantive exchange yet. Notably, Barrett cited her originalist view of the amendment.
11:21 — Durbin is describing violence in Chicago and labeling Barrett as fostering the violence. Barrett noted that nothing she said in the case would prevent a state from taking away guns if there was a showing of dangerousness.
11:25 — Had another good answer in pointing out the wide array of crimes considered felonies that would could be used as a categorical exclusion from the 2nd Amendment right.
11:27 — Interesting discussion of the comparison of depriving the right to vote as opposed to gun possession based on a felony. Barrett tried to explain that it turns on different language in the respective constitutional provisions. Nevertheless, Durbin’s questioning on this point was effective, even if it ignored the legal distinctions drawn by Barrett.
11:31 — Durbin just hit Barrett over dark money allowed by Citizen’s United to support her nomination. He of course did not mention the huge amount of such money used to oppose her nomination.
What is most striking is the attack of Democrats on a jurist who insisted that individual ex-felons deserve some pre-deprivation review or showing before losing a constitutional right as in the Kanter case.. Durbin’s dismissive comments on “Ricky” suggests that, as a former felon, he can be categorically excluded from certain constitutional rights.
11:34 — Sen. Lee is hitting his colleagues on pushing Barrett to confirm her position on cases like the ACA. Lee just quoted Ginsburg at length in refusing such answers.
I have to run to do some on-air coverage.
12:47 — I’m back
12:48 — Whitehouse is back to the theme that he raised with Kavanaugh discussing “outside forces” and Citizen’s United. He again is omitting the dark money and outside forces spending wildly to be opposing this nomination.
12:50 — Whitehouse is stressing that the Republicans promised to pick judges who would oppose Roe or the ACA. However, the Democratic presidential candidates pledged to pick only nominees committed to preserving Roe and other values. Again, one pledge is anathema while the other is aspirational.
12:54 — Whitehouse is attacking the commitment to picking pro-life justices but Democrats insisted on picking only pro-choose nominees. Nevertheless, Whitehouse and others supported Kagan and Sotomayor refusing to answer these questions.
12:56 — Whitehouse is omitting groups like Fix Our Senate which are spending considerable amounts to oppose this confirmation. [Note: just a correction. I was discussing groups on both sides of the Barrett nomination and I mistakingly included the Article III Project with liberal groups on the other side of the Barrett nomination. It is in fact not opposing the Barrett nomination. I apologize for the error.]
1:03 — The Whitehouse circles are beginning to look like an NFL playbook but it is all x’s and no o’s. What he is describing as funding briefs and opposition campaigns is also evident among liberal groups.
1:06 — I happen to support same-sex marriage but I do not see why conservatives should not be organizing to appoint conservative judges as liberal groups organize to appoint liberal judges. These campaigns constitute forms of political speech and association.
1:08 — Whitehouse is noting that these decisions are all 5-4. However, the problem is the five conservatives voting as a group, not the four liberals voting as a group.
1:16 — Barrett is now responding to Cruz on the importance of the protection of the freedom of religion and other rights. These are “breather” questions for a nominee.
1:18 — Cruz is noting that even if Roe were overturned, it would revert to a matter of state law.
1:22 — Cruz is hitting Whitehouse. Of the top 20 organizations giving to political causes, the vast majority of SuperPac donors gave to Democrats not Republicans. He is hitting the dark money hypocrisy in omitting liberal dark money.
1:30 — I have to go teach my Supreme Court class.
2:58 — I am back from the Supreme Court class where we ironically were debating the ACA case. We all give two votes on the merits and the predicted outcome. On the prediction, the class voted overwhelmingly that the ACA would likely not be struck down and the mandate provision would be viewed as a severable.
2:59 — Sen. Coons is challenging Barrett on her criticism of the Roberts decision in ACA. Many of us criticized his logic and analysis. Even those in support of the ACA, criticized Roberts’ analysis including myself.
3:00 — Sen. Coons expressed surprise that the ACA was back before the Court. Again, there is a lack of clarity. The drafters and the Obama Administration insisted that the mandate was the thumping heart of the ACA and that the ACA could not exist without it. Roberts referred to that assumption. Now the mandate is dead. Obviously there is a question based on what the Obama Administration argued and the Robert court decided in upholding the Act.
3:04 — Coons is objecting that the DOJ is failing to defend a federal law as a violation of its duty. It is a fair point but the Obama Administration also refused to defend federal statutes like the Defense of Marriage Act — and Coons supported that position.
3:07 — Coons is raising Trump’s reference to any challenge to the election as a reason to push for the confirmation. Coons is again raising recusal. The problem is that impartiality would not be reasonably questions simply because Barrett was nominated shortly before the election. Indeed calling for her recusal is itself an effort to influence the result in such a challenge.
3:15 — Sen. Hawley got Barrett to say that she disagreed on cases with Scalia when she clerked for him.
3:17 — Barrett is again discussing her speaking to the Blackstone program during the summer. She also said that she signed that pledge raised by Leahy on the way out of church 15 years ago. The statement affirmed her pro-life view and it was something that the church community was supporting.
3:57 — Blumenthal is again demanding recusal while blaming others for undermining her integrity. Blumenthal insisted that her non-recusal would be “a dagger at the heart” of our democracy. It is bizarre. Again there is no plausible grounds for recusal. Then after discussing the impropriety of politics being perceived as influencing the Court, Blumenthal “shared” a letter asking her to “please protect” a little boy. It is a direct call for her to vote based not on the law but the policy or persons involved in a law. These are incredibly moving stories but this is not the role of a jurist. She is expected to rule on her view of the law not her view of the benefits of the law.
4:15 — Blumenthal is continuing the individual case stories and saying that these individuals are asking for answers from Barrett. These are moving stories but Blumenthal is demanding answers to questions that prior nominees have refused to answer. Blumenthal supported nominees like Kagan in refusing such answers. Yet, Blumenthal is saying that her answer is “chilling” and “horrifying” and “fearful.”
4:22 — Blumenthal just misrepresented the Kanter case as usurping legislative authority with Barrett’s own policy decision on guns. You can disagree with her view of the Constitution, but she was ruling on the scope of individual right. Judges do not usurp legislative authority in such opinions. They are ruling that they lack the authority. Again, you can disagree but Barrett was demonstrably not writing on her view of policy.
4:27 — Blumenthal is now utterly unmoored from the realities of Kanter. He said that she usurped the legislative judgment on dangerous people. Barrett actually said that the right could be taken away from dangerous people but you had to show they are dangerous.
4:41 — Sen.. Hirono is now giving new stories about those who might be harmed by Barrett voting against the ACA. “What the heck?” She asked Barrett is these tragic stories should influence her. Barrett answered correctly that she would rule on the law.
Hirono is expressing disbelief that these tragic stories would not be considered “legal arguments.” They are not legal arguments standing alone. They are tragic and examples of real world consequences, which are often considered but are not necessarily determinative.
4:54 — Hirono is demanding “precedent” based on “real-life impacts.” That is not a legal analysis but simply upholding laws based on your agreement with the policy. She has called the distinction between policy and law as a “fiction.” That certainly makes this hearing simpler. It is all just politics.
5:00 — Hirono just accused Barrett of using offensive language for referring to “sexual preference.”
5:35 — Sen. Booker is now grilling Barrett on her ability to empathize. So Barrett is now expected to express empathy on demand? We are all moved by these stories but they are not the victims of Judge Barrett and the stories are not relevant to her view on the narrow and technical issue of severability in a statute like the ACA.
5:44 — There is actually a substantive discussion that has broken out by accident in the hearing. Booker and Barrett are discussing the case of Smith case and Barrett did a good job in explaining why she ruled against the Illinois DOT employee. Unfortunately, Booker moved on. However, Barrett was noting that while she said in the case that “the n-word is an egregious racial epithet” she held that there had to be evidence that the use of the word altered conditions in the workplace.
5:50 — Booker is now raising again the use of the term “sexual preference” rather than “sexual orientation.”
6:54 — We are back by Sen. Kamala Harris is literally speaking to the public on the need for pandemic relief.
6:56 — once again Barrett is virtually a non-entity as the case for the ACA is made to the public. It can only be repeated that the ACA case is exceptionally unlikely to result in the striking down of the ACA and concerns a narrow technical issue of severability.
6:58 — Harris just said that the GOP needs just one more vote to strike down the Act and “this is happening.”
7:26 — Kennedy is repeatedly asking if Barrett is a liar. This is almost as painful as Booker repeatedly asking if she is empathic.
7:30 — Interesting comment by Barrett that suggested that if you have not thought about issues by middle age you are probably not qualified for the Court. Notably, Thomas said that he had no views on abortion and had not really thought though the issue.