WASHINGTON—Duck, dodge, and weave.
Frustrating Senate Judiciary Committee Democrats, that was the common “response” federal appellate judge Amy Coney Barrett produced on issue after issue during the second day of the panel’s hearings on her nomination to the vacant seat on the U.S. Supreme Court. On everything from revisiting the legality of gay marriage to reproductive rights, Barrett’s responses were variations of “I’m not going to give a thumbs up or a thumbs down.”
That was Barrett’s strategy when Sen. Dianne Feinstein, D-Calif., directly asked her about whether the president of the United States has the constitutional power to “unilaterally delay a general election.” Trump has repeatedly threatened to delay the election or refuse to recognize its results should he lose.
Feinstein’s question should have been a simple one to answer. Nothing in the Constitution gives the president the authority to determine election dates; only Congress has that power.
Yet Barrett still wavered, saying, “If that question ever came before me, I would need to hear arguments…and read briefs….” She dodged the matter completely, telling the Judiciary Committee, “If I give off-the-cuff answers, then I would be basically a legal pundit.”
Barrett’s sidestepping of Feinstein’s question wasn’t the only instance on Tuesday of her refusing to address concerns related to Trump’s threats to democratic elections.
She wouldn’t say whether she would vote on any cases resulting from disputes arising from the Nov. 3 election, either. Barrett would not commit to recusing—absenting herself—from any election-related case due to real bias or the appearance of it, given that she would have just been nominated by one of the litigants—namely Trump. “It’s a legal question and one I cannot make an advance prediction” about, she said.
“I have had no conversations with the president or his staff on that case,” she claimed. She told committee members she had “made no commitment to anyone” on the election.
She also passed on a question from Sen. Cory Booker, D-N.J., about whether Trump could pardon himself if he’s accused or indicted on criminal charges. A 1999 Justice Department memo bans indicting sitting presidents.
On issue after issue, she stuck to her judicial philosophy of “originalism”: Comparing the written words of a law, and no more, with the written words of the U.S. Constitution and their meaning at the time they were written down in 1787. Barrett contends she would consider nothing else when deciding a High Court case.
That originalist philosophy was challenged when Sen. Dick Durbin, D-Ill., pushed her to reflect on racism in the U.S. and its evolving role in U.S. history in light of George Floyd’s murder by police earlier this year. She said lawmakers have to deal with such issues, not courts. “As to putting my finger on the nature of the problem, whether as you say it’s just outright or systemic racism, or how to tackle the issue of making it better, those things are policy questions,” she responded. Durbin questioned how Barrett is so “passionate about originalism and the history behind language” but not have any thoughts about how the Supreme Court should deal with an issue like race, which the writers of the Constitution often expressed backward views.
However, Barrett conceded, when Booker pushed, that there is implicit racial bias in the criminal justice system, and she added studies show it’s rampant in other parts of U.S. society. Booker interrogated Barrett further though, pointing out that her recent opinion in a racial discrimination case did not match up to her words before the committee.
In an Illinois Transportation Department case, Black worker Terry Smith said his supervisor created “a hostile work environment” by using the “n” word. The worker was later fired. Barrett wrote in the ruling that “the n-word is an egregious racial epithet,” but said that the supervisor’s use of the word did not inherently “create a hostile or abusive working environment.”
She told Booker that Smith “didn’t tie the use of the n-word into the evidence he introduced,” in the case before the federal Equal Employment Opportunity Commission, or her circuit court. Before the committee on Tuesday, she stuck by the decision, saying that Smith was indeed called the n-word, but that he’d been fired for performance reasons, not his race.
No comment
For virtually the entire day of hearings, Barrett continued answering with non-answers. Only late in the day-long session—which stretched from 9 am to well beyond 7 pm EST—did one lawmaker, Sen. Kamala Harris, D-Calif., a former D.A. and state Attorney General—seem to break through. She was quizzing Barrett about the future of the Affordable Care Act.
The fate of the ACA has been the dominant issue in the hearings so far, as on Nov. 10, the justices will hear a GOP-initiated case demanding the High Court completely kill the health care law which has provided insurance coverage to millions. Trump actively backs that Republican death threat.
Harris first summarized the fears of millions that Barrett will be the key vote on the court to throw the law out. She said more than half the nation would see its health care coverage become more expensive, wither, or die if that occurs.
“Republicans are scrambling to confirm this nominee as fast as possible because they need one more Trump judge on the bench to strike down the ACA. People are scared about what will happen,” Harris said.
“The Affordable Care Act and all its protection hinge on this seat, and the outcome of this hearing,” Harris stated. She finally got Barrett to concede she could take the practical impact of any case—not just the ACA—into account in any ruling. Doing so is “part of the judicial-making process,” Barrett said.
That was about the only chink in Barrett’s replies. Earlier, one Democrat posted an enlarged photo of the key page of the GOP Trump regime’s anti-ACA High Court brief, with the blunt demand to kill it highlighted in yellow. Barrett noticed, then stopped after that recognition, saying she could not prejudge the case. Harris partially pierced that.
Neither the senators nor Barrett addressed the gaping inequalities and the concentration of wealth between the 1% and the rest of us. One union leader who opposes Barrett, the Communications Workers’ Chris Shelton, did.
“With each appointment to the Supreme Court, Donald Trump has selected judges that have a track record of ignoring the concerns of working people in favor of giving more power and control over our lives to corporations,” he said on Sept. 26.
And only Sen. Sheldon Whitehouse, D-R.I., a former state attorney general, brought up the corrupting effect of money in politics. He noted corporate “dark money” groups were pumping millions of dollars into pro-Barrett campaigns, after spending money to push other High Court cases—including $45 million to gain and win the infamous, anti-union Janus decision several years ago.
In one concession, Barrett told senators she was “not hostile” to the ACA, but criticized the way Chief Justice John Roberts, the key vote in that 5-4 ruling, upheld it. In a prior law review article, Barrett said Roberts stretched the law to keep it on the books. “But my approach will be textualism,” Barrett said of evaluating laws. Like her mentor, the late Associate Justice Antonin Scalia, Barrett disregards what lawmakers say when debating bills.
Barrett also said she would follow past Supreme Court cases she called “super precedents,” such as the court’s Brown decision in 1954 outlawing segregation, which are “utterly beyond question.”
Roe v Wade, the High Court’s 1973 abortion ruling, isn’t one of them, Barrett said—even though polls show three-fourths of the country sides with reproductive choice. Barrett did say at one point she would “listen to both sides” on any abortion case. That’s as far as she would go.
Siding with Trump
Barrett’s non-answers, and “no commitment” positions frustrated the panel’s Democrats. They will be outvoted by its GOP majority—on party lines—when the final tally comes. Committee Chairman Sen. Lindsay Graham, R-S.C., who again enthusiastically endorsed Barrett, did not set a vote date.
Many of the Democrats were skeptical about Barrett’s statements, given the circumstances, especially Trump’s vows to nominate justices who would kill both the ACA and reproductive choice. The foes of marriage equality, the ACA, and abortion rights “lost” in prior cases, said Whitehouse. “With another judge [on the court], they could win.”
The court has five GOP-named justices, but Roberts very occasionally strays from their consensus, earning him the ire of the radical and religious right. Barrett would be conservative GOPer #6.
“The president expects you to side with him” in saying the ACA “is unconstitutional,” veteran Sen. Patrick Leahy, D-Vt., told Barrett. “You said very clearly that you believe the statute is unconstitutional. And the president expects you to side with him on that and he expects you to side with him on the election, too.”
Sen. Mazie Hirono, D-Hawaii, made the same points about what Trump wants from Barrett, but on reproductive choice. “The states are very busy passing laws overturning the right to an abortion,” Hirono added. She warned 14 anti-abortion cases of various types are headed for the court.
Barrett’s non-answers also irked demonstrators mobilizing across the street, in front of the court’s building, as well as progressive groups launching campaigns to get senators to vote against Barrett. Those foes must convince four of the Senate’s 53 Republicans to vote Barrett down, assuming all 45 Democrats and both independents oppose her.
Getting to that magic number of 51 “no” votes will be a tough row to hoe. Fivethirtyeight.com reports all but four Republican senators have voted with Trump at least 80% of the time during his term. That dismal aspect didn’t stop the progressive groups, on the phones, through e-mail, or in the streets.
“If you’ve had enough of Republicans trampling on our democracy to confirm another anti-choice ideologue to the Supreme Court at all costs, your senator needs to hear from you TODAY,” the National Abortion Rights Action League said (their emphasis). NARAL led the protests.
“It’s clear Senate Republicans will stop at nothing to ram through the confirmation of Amy Coney Barrett…It’s a sham. It’s a shame. Tell your senator: Don’t consider a new Supreme Court justice until after Inauguration Day.”
A MoveOn petition to senators, demanding they leave Ginsburg’s seat vacant until after Inauguration Day has attracted 1,481,692 signatures on the way toward the goal of 1.5 million. Another big one on Change.org has 257,213 names, while 10 smaller ones there, some addressed to individual Republican senators, total 40,416 more.
The Service Employees union filed a formal letter opposing Trump’s nomination of Barrett, put into the record by Sen. Chris Coons, D-Del. E-mails seeking its text were not answered, but union President Mary Kay Henry announced Sept. 26 SEIU opposes Barrett. On other grounds, the same day, so did Communications Workers President Chris Shelton. He was the one who denounced Barrett as a corporate tool.
“This nomination is about whether millions of Americans will be able to keep going to the doctor when they are sick,” Henry said.
“On Nov. 10, the Supreme Court will hear oral arguments in President Trump’s latest attempt to dismantle the Affordable Care Act. If the president gets his way, he and Judge Amy Coney Barrett will be responsible for ripping healthcare away from millions of working people in the middle of a pandemic. Judge Barrett has already spoken out against the ACA. Make no mistake about it. Our health, and the health of our families, are on the line,” Henry added.
“Trump has selected judges that have put party loyalty above legal precedent and norms. Amy Coney Barrett fits that model,” Shelton said. He pointed out that as an appeals court judge, Barrett “ruled in favor of corporations 75% of the time” and supports “ending protections for people with pre-existing conditions” by killing the ACA.
Cementing an anti-worker Supreme Court
“Trump and the Republican majority can’t seem to find the time to vote on the Heroes Act to provide relief to the millions of Americans who face financial collapse, but they are rushing to confirm a justice who will use any excuse to undermine worker power, putting fair wages, health and safety on the job, and the freedom to join a union at risk for a generation,” Shelton stated.
And on Oct. 12, National Education Association President Becky Pringle, a Philadelphia science teacher who heads the nation’s largest union, announced it opposes Barrett, too. The Senate, Pringle said, should concentrate on coronavirus relief, not Barrett.
“Rather than focusing on getting the pandemic under control, providing much-needed support to struggling families and assuring students and educators will return to safe classrooms, Trump and Senate Republicans are rushing through” Barrett, Pringle said in a statement. Pringle added that Barrett “will support the court’s continued partisan attacks on working people and their right to join and form unions.”
Workers issues came up several times at the Senate hearing. The Theatrical and Stage Employees cited the 2019 Smith discrimination case in a tweet opposing Barrett: “SCOTUS nominee Amy Coney Barrett wrote that being called a racial slur at work by your supervisor does not constitute a hostile or abusive work environment. Tell your senators to focus on COVID relief, not an unqualified Supreme Court nominee.”
Hirono used two workers’ cases in contrasting Barrett with her predecessor, Justice Ginsburg. One was the famed Lilly Ledbetter case against Goodyear, where the court’s GOP-named five-man majority threw out Ledbetter’s sexual pay discrimination victory. The majority ruled Ledbetter had only 180 days after being hired to sue. She was an underpaid supervisor at the Gadsden, Ala., tire plant, compared to male managers, for 20 years before she learned of the pay discrimination.
An outraged Ginsburg read her dissent aloud—a rarity—and in the process, lectured her colleagues on their decision’s practical effects. She then urged Congress to reverse the Ledbetter ruling. When President Barack Obama took office, lawmakers did. It was the first bill Obama signed.
The other, more recently, the Epic Systems case, saw the five-man GOP-named majority declare mandatory arbitration of disputes between workers and bosses overrides even union contracts. Ginsburg dissented, citing real-world impacts on Blacks, people of color, and other workers. Barrett had just told Hirono she would, in some circumstances, consider the real-world impact of High Court rulings.
But pushed about how she would have ruled had she been on the court then, Barrett again retreated to her standard refusal to answer. “I could not say how I would have decided them,” Barrett said of both Ledbetter’s case and the mandatory arbitration.
John Wojcik and C.J. Atkins contributed to this article.
ELECTION 2020: Everything you need to know to vote in your state
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