Republicans try to separate Barrett from Trump
In Tuesday's nomination hearing, GOP lawmakers
distanced their prized Supreme Court pick from the president's over-the-top
pledges.
By JOSH
GERSTEIN
10/13/2020
09:49 PM EDT
https://www.politico.com/news/2020/10/13/republicans-amy-coney-barrett-trump-429384
Senate
Republicans had this to say Tuesday about the man who tapped Amy Coney Barrett
for a lifetime appointment to the Supreme Court, in essence: Donald who?
As
Democrats harped on the president’s promises that his high court nominee would
rule against Obamacare and abortion rights and settle election disputes in his
favor, GOP senators gave Trump the don’t-pay-attention-to-the-man-behind-the-curtain
treatment.
Sen.
Lindsey Graham (R-S.C.), set the tone early when he urged his colleagues to
dismiss Trump’s pledges. And the Judiciary chairman went even further,
suggesting the president is so uninformed about legal matters that he is
unlikely to grasp the central issue in the pending, sweeping challenge to the
Affordable Care Act set to be taken up by the Supreme Court one week after next
month’s election.
“I play a
lot of golf with the president, I guess. I’ve enjoyed it,” Graham said. “We
talk about a lot on the golf course. … I promise I’ve never talked about
severability with the president,” the chairman said, referring to a lawsuit
filed by 18 Republican state attorneys general.
Trump has
long backed the suit, and only lately seems to have awakened to the political
dangers it now poses.
Inspired by
the success of a similar effort in messaging during the 2018 midterms,
Democrats appear to have calculated that their relentless focus on Barrett’s
alleged hostility to the health-care law — even in the somewhat incongruous
setting of a Supreme Court confirmation hearing — will pay electoral dividends
for them in November.
On Tuesday,
as Democrats hammered away at Barrett and Trump, Republicans accused them of
promoting a politically motivated fantasy about the nominee’s views on a topic
she has never opined on in the current, potentially make-or-break challenge to
the law.
“All of
these predictions about how judges, under our independent judiciary, will make
decisions are just pure speculation. But I think they’re worse than speculation,
I think they’re propaganda in order to make a political point,” Sen. John
Cornyn (R-Texas) earnestly declared.
But
Democrats noted that Trump’s statements about the reliability of his judicial
appointees were often unequivocal.
“This
president has not been subtle that he expects his nominee to side with him in
an election dispute,” Sen. Patrick Leahy (D-Vt.) said.
For her
part, Barrett insisted she had made no promises to the White House about how
she would rule on the ACA, abortion or any litigation over the election.
“I’m not willing to make a deal, not with the
committee, not with the president,” she said. “I’m independent.”
Sen. Mike
Lee suggested it was “wildly incorrect” for Democrats to question Barrett’s
refusal to offer her views on most of the legal controversies she was asked
about. But the Utah Republican never addressed whether it was appropriate for
Trump to have explicitly promised that his nominees would, for instance, vote
to overturn Roe v. Wade.
But
Democrats said their questions to Barrett were rooted directly in tweets Trump
had sent and comments he had made vowing loyalty from his judicial nominees.
Sen. Sheldon Whitehouse (D-R.I.) noted that the GOP party platform from 2016
and 2020 explicitly calls for justices that would reverse the decided Supreme
Court cases upholding Obamacare.
“When we
react to that, don’t act as if we’re making this stuff up,” Whitehouse said to
his Republican colleagues. “This is what President Trump said. This is what
your party platform says: reverse the Obamacare cases.”
When
Barrett insisted she had not even discussed abortion or the Affordable Care Act
with the White House, some Democratic senators asked Barrett — in effect — if
she was calling the president a liar.
“Do you
think we should take the president at his word when he says the nominee will do
the right thing and overturn the Affordable Care Act?” Sen. Amy Klobuchar
(D-Minn.) asked, with a poster-sized version of a 2015 Trump tweet displayed
behind her.
Indeed, at
one point, Barrett suggested that despite ample indication from Democrats of
their plans to focus on the Affordable Care Act at this week’s hearings, she
had not even seen Trump’s statements vowing that his judges would rule against
the law.
“I want to
be very careful. I’m under oath. I don’t recall hearing or seeing those
statements,” Barrett told Sen. Kamala Harris of California, the Democratic vice
presidential nominee.
Political
distancing
It was not
totally clear whether the Republicans’ desire or willingness to scrub Trump
from the picture Tuesday was simply a tactical decision to ease Barrett’s
confirmation or if it reflected Trump’s weakening grip on lawmakers as polls
increasingly suggest that he is likely to be defeated next month in his
re-election bid.
While a desire
by Republicans not to talk about a president of their own party just weeks
before he’s up for re-election might ordinarily be seen as a snub, at the
moment it might actually be politically beneficial to Trump to have the
spotlight on Barrett instead.
At a
superficial level, the middle-aged, mild-mannered law professor and mother of
seven is a far less polarizing figure than the thrice-married,
attention-grabbing president, particularly with the moderate, suburban women
Trump is trying to target in his re-election bid. And Barrett managed to sound
more empathetic on racial issues than Trump has through several years in
office.
While Trump
has offered mixed messages about Black Lives Matter protests, Barrett said her
family was traumatized by the videotape of George Floyd’s death after a
Minneapolis police officer knelt on his neck for nearly nine minutes.
“My
17-year-old daughter Vivian, who is adopted from Haiti — all of this was
erupting — it was very difficult for her. We wept together in my room,” Barrett
added in an exchange with Sen. Dick Durbin (D-Ill.) “For Vivian, to understand
that there would be a risk to her brother or the son she might have one day of
that kind of brutality, has been an ongoing conversation. It’s a difficult one
for us like it is for Americans all over the country.”
Although
Barrett was scrupulous not to express her views Tuesday on a slew of
controversial issues that could come before the court — nor even,
theoretically, whether a president should pledge to uphold the peaceful
transition of power — she said she was “happy to discuss” her reaction to the Floyd
video and she accepted the premise that his death was the result of racism.
Trump has
inveighed against the idea that American law enforcement is saddled with
“systemic racism,” but Barrett seemed more willing to concede racism that goes
beyond the proverbial few bad apples.
“It would
be hard to imagine a criminal justice system as big as ours not having any
implicit bias in it,” Barrett told Sen. Cory Booker (D-N.J.).
It was
evident from Trump's Twitter feed that he was watching at least part of Tuesday's
proceedings, and tuned in to the Democrats’ frequent mentions of him.
“How dare
failed Presidential Candidate (1% and falling!) @CoryBooker make false charges
and statements about me in addressing Judge Barrett,” Trump tweeted at one
point. “Guy is a total loser!”
But as he
boarded the presidential helicopter on the way to his latest campaign rally,
Trump made no mention of the fact that his nominee had spent the last 11 hours
avoiding being tied to him.
“I think
Amy is doing incredibly well,” he told reporters. “It’s been a great day. Thank
you.”
OPINION |
ON THE BENCH
How to Get Amy Coney Barrett to Say What She
Really Thinks
Democratic senators have been stonewalled by Barrett’s
refusal to talk about important cases. Here are four ways they might get better
answers.
By KIMBERLY
WEHLE
10/13/2020
07:55 PM EDT
Kimberly
Wehle is a professor of law at the University of Baltimore School of Law.
If she
achieved nothing else, Judge Amy Coney Barrett on Tuesday displayed her skills
as a law professor. Under gentle questioning by Sen. Ben Sasse (R-Neb.), she
explained important and complex legal concepts like originalism, textualism,
standing to sue and “living constitutionalism.”
But when
she was pressed by Democratic senators on specific cases related to hot-button
issues such as abortion, same-sex marriage and Obamacare, Barrett retreated
behind a shield of what she called a “judicial canon” that allegedly precludes
her from commenting on certain categories of cases. She was not entirely
consistent, however, in how she applied that rule. She eschewed any discussion
of abortion rights and Shelby County v. Holder, which struck down a critical
provision of the Voting Rights Act, for example, but was happy to weigh in on
Second Amendment law and the need, in her words, for First Amendment law to
become “better organized.”
After hours
of what amounted to a series of “no comments” from Barrett, the public is no
wiser about how Barrett’s views, which she has expressed on occasion in law
review journals and other venues, might affect her decisions on the Supreme
Court bench. As Sen. Sheldon Whitehouse (D-R.I.) skillfully unpacked in his
questioning today, years of aggressive advocacy by conservative groups such as
the Federalist Society have left a lasting imprint on the federal judiciary,
enabling the idea to take hold in the public square that originalists such as
Barrett are empirically “better” at interpreting the law than their progressive
counterparts—more rational and less inclined to allow ideology, emotion, and
the current political climate to influence their decisions. As Barrett herself
said, America needs judges who apply the rule of law rather than “disturbing,
changing, updating” and “adjusting” what that law requires. “It’s not the law
of Amy,” she said, “it’s the law of the American people.”
If
Democratic senators want to dismantle the false notion that conservative judges
don’t allow factors other than “the law” to influence their reading of the
Constitution, and in the process learn more about what Barrett actually thinks,
they might try pursuing these lines of inquiry:
1.
Deference to Congress
You
testified that both statutes and the Constitution are law, and that they derive
their legitimacy through the people’s representatives and the
Constitution-making process. You also testified that you are required to
enforce the law as written, and that any policy preferences you have “are
irrelevant.”
A week
after the election, the Supreme Court will face the questions of whether the
Affordable Care Act is constitutional, and whether the heart of the statute—and
thus health care coverage for millions of Americans—can be salvaged if the
individual mandate is struck down. You called this a question of
“severability.” But the statute itself does not clearly answer the severability
question. It’s up to the Supreme Court justices to do that. As a textualist and
an originalist, you appear to argue that there is only one legitimate way to
answer these questions. What in your view is the “right” way to balance the
will of Congress against the proper “reading” of text that the nine individuals
on the Supreme Court did not draft? Would you err on the side of preserving the
statute, on the theory that Congress passed the law in its capacity as “the
people’s representatives” and that it’s not the court’s role to dismantle the
“policy” decisions of the legislature? In short, how deferential should courts
be when asked to obliterate an act of Congress that represents the will of the
people?
2.
Resolving Centuries-Old Ambiguity
You have
said originalism is not “mechanical,” and that even conservative justices
disagree on what is the best textualist or originalist reading of a legal text.
You thus agree that the law is often ambiguous, and that individual judges must
resolve that ambiguity. You even testified that, for certain parts of the
Constitution, only “the principle” can be understood, and that the principle is
“capable of being applied to current circumstances.” (This sounds a lot like
the concept of “living constitutionalism,” which you disagree with.)
In order to
resolve ambiguity, you offered that “original public meaning controls”—and “not
the subjective intent of any drafter.” By “original public meaning,” you meant
that “the law is what the people understood it to be.” But the First Amendment,
which you cited as an example of a constitutional “principle,” was ratified in
1791. What makes you more equipped to decide what the public in the late 18th
century understood the text to be than another judge? If your point is that you
know it when you see it, it sounds a lot like the “law of Amy.”
3. What
Happens When the Constitution Is Silent?
You say
judges don’t make law, that they are only supposed to impose the law as
written, and that “disturbing, changing, updating” the law is improper. You
have seven children. Presumably, you would agree that the government should not
have the power to come into your home and tell you how to raise your kids by,
for example, dictating whether they go to college or become professional
athletes.
Is there
anything in the Constitution that says the government can’t tell you how to
raise your kids? Given that the Constitution is silent on this issue, a
textualist might be expected to adhere to this lack of textual support if faced
with a law aimed at controlling child-rearing. Indeed, in his dissent in
Obergefell v. Hodges, your mentor, Justice Antonin Scalia, bemoaned the lack of
textual support for a constitutional right to same-sex marriage. It turns out
the Supreme Court in 1923 found a right to bring up children as parents see
fit—in the Due Process Clause. Roe v. Wade applied the same approach to due
process as that case, Meyer v. Nebraska. So why would the right to raise one’s
children be protected from government infringement but not the right to make
choices about whether to have children?
4. To Speak
or Not to Speak
You
testified that you cannot weigh in on particular cases or even particular legal
issues. But you did discuss Second Amendment case law, offering that District
of Columbia v. Heller—which upheld an individual right to own a gun for
self-defense in the home under the Second Amendment—“leaves room for gun
regulations.” You also critiqued the overall state of Supreme Court precedent
under the First Amendment’s Establishment Clause, which at its core forbids
government from sponsoring religion, and endorsed Brown v. Board of Education,
calling it a “super-precedent” (but refused to put Roe in that category). As a
textualist and originalist, how did you decide which cases you can and cannot
weigh in on during these hearings? Before your confirmation to the 7th U.S.
Circuit Court of Appeals, you expressed an opinion on NFIB v. Sebelius, which
upheld Congress’ constitutional authority to enact Obamacare. You indicated
that Chief Justice John Roberts’ opinion upholding the ACA pushed the statute
“beyond its plausible meaning.” Why didn’t that commentary disqualify you from
any future ACA case as a matter of the “judicial canon”?
The problem
with Barrett’s testimony thus far is its intellectual inconsistency. Judges
judge. The Constitution and statutes inevitably contain ambiguous language.
Judges resolve that ambiguity. All judges do this.
Barrett
claims to resolve ambiguity by applying the law as written, but admits that the
exercise is not mechanical, and that even conservative judges don’t always
agree. Barrett then points to the understanding of the public at the time a
document was written. What did “the public” understand the word “equal” to mean
in 1791, for example, when the 14th Amendment was ratified? At that point,
women couldn’t vote. Are they part of the “public” that Barrett would defer to
when she identifies the original “public meaning” of the term, purportedly
devoid of her own ideology?
One thing
is for certain: We know how Justice Ruth Bader Ginsburg would have answered
that question.
Sem comentários:
Enviar um comentário