In Day 3 at Senate, Barrett Won’t Say If Trump Can Pardon Himself

Supreme Court nominee Amy Coney Barrett testifies before the Senate Judiciary Committee during the third day of her confirmation hearings on Capitol Hill in Washington on Wednesday. (Drew Angerer/Pool via AP)

WASHINGTON (CN) — Judge Amy Coney Barrett refused to say Wednesday whether voter discrimination exists in America as Democratic vice presidential nominee Kamala Harris grilled the Supreme Court nominee about her record.

“These are very charged issues,” Barrett said. “They have been litigated in the courts. So I will not engage on that question.

Picking back up on the heels of Tuesday’s 11-hour session, senators confronted President Donald Trump’s pick to fill the vacancy left by the death of liberal icon Ruth Bader Ginsburg about hot-button issues like abortion, health care, voting rights and the power of the presidency. 

Harris, who participated remotely in the Senate Judiciary hearing, had asked Barrett if she agreed with Chief Justice John Robert who wrote in Shelby Co. v. Holder that: “Voting discrimination still exists; no one doubts that.” 

The Supreme Court in Shelby overturned the requirement in the Voting Rights Act that states with a history of voter discrimination must seek federal preclearance before they can change election procedures.  

Adding that she does believe racial discrimination exists in the United States, Barrett said, “I think we’ve seen evidence of that this summer.” 

Chairman Lindsey Graham began Wednesday morning by defending Barrett’s take that the landmark abortion law Roe v. Wade is not “super-precedent.” 

Barrett previously defined the legal threshold as “cases that are so well settled that no political actors and no people seriously push for their overruling.”

“I’m answering a lot of questions about Roe which I think indicates that Roe doesn’t fall in that category,” she said Tuesday.  

Graham bunched Roe with landmark Supreme Court decisions like Citizens United v. FEC, Planned Parenthood v. Casey and District of Columbia v. Heller, saying they all are “actively being litigated.”  

Barrett followed up by telling the committee that legal scholars say that Roe not being “super-precedent” does not mean it should be overturned.  

Senator Chris Coons also raised Griswold v. Connecticut — a 1965 decision establishing the right to privacy to purchase and use contraception — looking to Barrett to define her own take on the landmark case and distance herself from her mentor, the late Justice Antonin Scalia, who argued there is no right to privacy in the Constitution.

Trump’s nominee said it “seems shockingly unlikely” that Griswold would be overturned. But when Barrett declined to opine on Supreme Court precedent, as she had dozens of times since the marathon hearing began Monday, Coons noted that Chief Justice Roberts has said he affirmed the decision, as did Justices Elena Kagan and Clarence Thomas in their confirmation hearings.

Weeks ahead of a presidential election, with millions of early voters already heading to the polls, Senator Dianne Feinstein invoked Scalia’s description of the Voting Rights Act, in Shelby, as a “perpetuation of racial entitlement.”  

When Trump nominated Barrett last month, the Seventh Circuit judge said Scalia’s “judicial philosophy is mine, too.”

But Barrett, seeking to distinguish herself from the conservative giant known for his originalist interpretation of the Constitution, said Wednesday morning that her legal perspectives do not wholly align with those of Scalia.

“When I said Justice Scalia’s philosophy is mine, too, what I meant is that his jurisprudential approach to text … is the same that I would take,” Barrett said. She also told senators the Voting Rights Act was “obviously a triumph for the Civil Rights movement.” 

Sen. Dianne Feinstein, D-Calif., and Sen. Dick Durbin, D-Ill., arrive for the third day of confirmation hearings for Supreme Court nominee Amy Coney Barrett before the Senate Judiciary Committee on Capitol Hill in Washington. (Drew Angerer/Pool via AP

Picking up a question Feinstein had asked Tuesday on whether Trump can unilaterally delay the election under any circumstances, Senator Dick Durbin, an Illinois Democrat, flipped the question to ask if the president can deny the right to vote based on race.  

Barrett had said Tuesday that she “would be basically a legal pundit” if she responded to Feinstein’s question, and offered the same reply to Durbin, adding: “I’m not going to answer hypotheticals.” 

Durbin’s question — “Does the president have the authority to unilaterally deny the right to vote based on their race?” — pulled language from the 14th and 15th Amendment, a maneuver that Barrett picked up on.  

“It strains originalism if the clear wording of the Constitution establishes a right and you will not acknowledge it,” he said.

Barrett struck back that it would “strain the canons of conduct” for her to provide opinions outside of court. 

On another issue that Democrats consider a serious possible future turn of political events, Barrett refused to weigh in on whether presidential powers allow Trump to pardon himself.

Punting the question, she said: “I agree that no one is above the law.”

Senator Patrick Leahy, a Vermont Democrat, said: “I find your answers somewhat incompatible.”

Democrats honed a warning message Tuesday that Trump handpicked Barrett to overturn former President Barack Obama’s health care legislation that now protects over 130 million Americans with preexisting conditions.  

With Barrett lined up to swing the court to a 6-3 conservative majority, they warned that Americans with preexisting conditions who will lose life-saving protections under the Affordable Care Act include the 7 million Americans who contracted Covid-19.  

Barret wrote in 2017 that Chief Justice Roberts had pushed the ACA “beyond its plausible meaning to save the statute,” but argued that her legal criticism then was directed at a different issue than the individual mandate provision set to be argued before the justices on Nov. 10.  

Democrats rejected Barrett’s assurances Tuesday that she had made no commitment to the Senate GOP or to the White House on how she would rule on the upcoming ACA case. She refused to recuse herself from the legal challenge backed by Trump’s Justice Department, telling senators that recusal is a legal issue and a decision she could not make in the abstract.  

Once again looking to dispel Democrats’ warning that her nomination puts health care for millions at risk, Barrett said Wednesday that she was in agreement with the party on two issues.  

“Judicial activism is bad from either side and no matter what somebody’s policy preferences are about the ACA … they shouldn’t be trying to undermine the policy that Congress enacted,” she said.  

Senator Amy Klobuchar pressed Barrett on whether she was aware of Trump’s “obsession to repeal Obamacare,” a line of questioning aimed at pinning down whether the nominee had reason to recuse herself from the ACA challenge in the high court. 

The Minnesota senator said that the president, dating back to 2015, has made clear that dismantling the Affordable Care Act was a top priority. 

“I just find it hard to understand that you were not aware of the president’s statements,” she said.

But Barrett dodged the question, answering tersely after increasing pressure by Klobuchar: “You’re suggesting that I have animus or that I cut a deal with the president, and I was very clear yesterday that that isn’t what happened.”

As for writing that Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute,” Barrett said her 2017 scholarly article was not an “open letter” to Trump as Democrats were suggesting.  

Committee Chairman Sen. Lindsey Graham, R-S.C., speaks Wednesday during the confirmation hearing for Supreme Court nominee Amy Coney Barrett. (AP Photo/Susan Walsh, Pool)

Republicans repeatedly claimed Tuesday that Democrats had no way of predicting how Barrett would rule if she fills the court’s ninth seat.  

“I’m highly confident that you will judge every American based on their case, not the law of Amy,” Graham said at the outset of Wednesday’s hearing. 

Senator Richard Blumenthal, like previous Democrats, asked Barrett to weigh in on Griswold. She again declined, and the Connecticut senator said he was “stunned” that the nominee would not say whether the case that legalized contraception was correctly decided. 

Turning to Lawrence v. Texas, the 2003 ruling that U.S. laws prohibiting private homosexual activity are unconstitutional, Blumenthal asked Barrett if the case was rightly decided. His question came after a recess of more than 40 minutes called after the committee’s mics went dead. 

The nominee defaulted again to declining to opine, accusing the Democratic senator of pushing her to violate the judicial canons of ethics.

“You’re implying that I’m poised to say that I want to cast a vote to overrule Obergefell, and I assure you, I don’t have any agenda, and I’m not even expressing a view in disagreement of Obergefell,” Barrett said, referring to the 2015 Supreme Court decision legalizing same-sex marraige, Obergefell v. Hodges. 

Quoting an article Barrett wrote before becoming a judge, where she said that hypothetical questions are par for the course at judicial confirmation hearings, Blumenthal said Americans “want to know your legal positions on these issues and they have a right to know.”

The GOP has called it insulting that Democrats see Barrett as a tool wielded by Trump so he can fulfill his campaign promise to overturn the Affordable Care Act. To this, however, Durbin pointed Tuesday to the president’s own words. 

“Read the tweets and you have plenty to work with,” the Illinois Democrat said.   

Barrett admitted Wednesday that it was news to her that justices did not adhere to the same disclosure and transparency requirements for lower court judges.  

Senator Sheldon Whitehouse, a Rhode Island Democrat, drew attention to the fact that the judge would be subject to less restrictive financial reporting standards when she steps into the role of justice.  

“I didn’t know that they were different or that it was a lower standard from the ones that the rest of us filed,” Barrett said.  

Senator Ted Cruz followed Whitehouse by saying that it is clear two days into the confirmation hearing that Barrett will sit on the Supreme Court.  

“They’ve largely abandoned even trying to make the case that Judge Barrett is anything other than exceptionally well-qualified,” Cruz said.  

A Texas Republican, he said it was “indicative” of what Democrats are “tacitly admitting” that there were only two minority members in the hearing room. 

Durbin did not see the significance. “We’re in the midst of a Covid-19 crisis, a pandemic, and some members are in their offices following this on television,” he said. “And to suggest they’re absence here means they’re not following or participating is incorrect.”

Cruz is one of four GOP members of the Senate Judiciary who attended the White House Rose Garden event where Trump announced Barrett’s nomination of Barrett.  

The gathering is considered a super-spreader event where Covid-19 was contracted by more than two dozen White House officials, as well as Republican Senators Mike Lee of Utah and Thom Tillis of North Carolina, who sit on the Senate Judiciary Committee.  

Both Lee and Tillis questioned Barrett in person from Capitol Hill on Tuesday and Wednesday, wearing no mask less than two weeks after testing positive for coronavirus.  

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