Monday Morning Politics: Judge Amy Coney Barrett Confirmation Hearing

[music]

Brian Lehrer: Brian Lehrer on WNYC. The Supreme Court confirmation hearings for Amy Coney Barrett have begun this morning, and like so much else in this pandemic year, Supreme Court hearings are supremely weird with a mix of in-person and virtual appearances, and a mix of senators who do not currently have COVID-19, and those who got infected with COVID-19, presumably, at judge Barrett's super spreader event at the White House two weeks ago. The hearings are scheduled to last through Thursday, so each day here on The Brian Lehre Show at around this time, 11:30, 11:40, we will break down what happened during the morning with some excerpts and a little help from our friends.

Our guests today to help us do that, who's been eavesdropping on the hearing on our behalf is John Dickerson, a 60 Minutes correspondent, a CBS news analyst, a contributing writer to the Atlantic, a member of the Slate's Political Gabfest podcast trio, and author of The Hardest Job in the World: The American Presidency. Thanks for coming on, John. Welcome back to WNYC.

John Dickerson: Sure thing. Thanks very much for having me, Brian,

Brian: Can you set the scene for us? What's it been like so far in the political context and in the COVID context?

John: In the COVID context, is that you have some people masked, some people not masked. Senator Lee of Utah, who has COVID-19, was not masked. There was a joke made by Lindsey Graham who was chairing the committee about that. Amy Klobuchar talked about, because Democrats are going to be focusing on protecting the Affordable Care Act as a strategic way of criticizing Amy Coney Barrett, she talked about her experience with COVID-19, her family's experience, and her father's health as well in order to talk about that issue.

It was kind of striking seeing Senator John Cornyn of Texas with a mask on, and Senator Grassley of Iowa with a mask on, and then Mike Lee without one, seeing as Mike Lee was at that superspreader event at the White House. Then semantically, we're going to be talking about, in addition to the Affordable Care Act, obviously, abortion will come up, and we're going to have a long and winding discussion about originalist views, Justice Scalia will be brought up quite a lot. It was brought up in Barrett's opening statement, and the originalists' view of the constitution that it should be interpreted the way the framers in the 18th-century understood the constitution will be a constant high-level conversation in these hearings.

Brian: Let me play a clip of the Senate Judiciary Committee chairman, Lindsey Graham, and then one of the ranking Democrat, Dianne Feinstein. Here's Graham setting it as it is indeed set as something that's taking place in an election year.

Lindsey Graham: This is an election year, we're confirming the judge and election year after the voting has occurred. What will happen is that my Democratic colleagues will say, "This has never been done." In their right, in this regard, nobody, I think, has ever been confirmed in election year past July. The bottom line is Justice Ginsburg, when asked about this several years ago, said that a president serves four years, not three. There's nothing unconstitutional about this process. This is a vacancy that's occurred through a tragic loss of a great woman and we're going to fill that vacancy with another great woman.

The bottom line here is that the Senate is doing its duty constitutionally. As to Judge Garland, the opening that occurred with the passing of Justice Scalia was in the early part of an election year. The primary process had just started.

Dianne Feinstein: We are now just 22 days from the election, Mr. Chairman, voting is underway in 40 states. Senate Republicans are pressing forward full speed ahead to consolidate a court that will carry their policies forward with, I hope, some review for the will of the American people.

Brian: The ranking Democrat on the committee of California, Senator Dianne Feinstein on the judiciary committee, and the chairman, Republican Lindsey Graham from South Carolina. John Dickerson from CBS news is with us having heard the testimony so far this morning. It's really opening speeches so far by members of the committee, and to what they were just talking about, John, which is really the political context, an ABC News Washington post-poll just out today shows a slim majority of voters oppose even having the Barrett hearings. That's 52% to 44%, so an eight-point margin, the Washington Post calls it slim.

The post-poll also shows a consistent American majority supports the high court upholding Roe versus Wade. That one is lopsided at 62% to 24% pro-Roe. In light of that, and the Coney Barrett COVID event and Merrick Garland and all these factors, do you think smashing out the confirmation vote in the week before election day is good or bad politically for the Trump campaign and the swing state Republicans who were trying to hold the Senate?

John: It depends what the final shape of the argument is. For example, if it's a process argument about whether they were rushing through a nominee and in an election year, that ABC poll actually shows a decrease in the number of people who think it's a bad idea to fill it in an election year. Political independence, for example, have dropped, in their view, that it's a bad idea, from 63% to 51%. If it's a process argument, then Republicans are on much firmer ground in part because the process argument animates most acutely the partisans in both parties.

If it's not a process argument and it focuses around healthcare, then that probably helps Democrats in the sense that the healthcare is a better issue for Democrats more broadly and for Joe Biden in particular. You always want to win the arguments, but sometimes even if you're fighting it to a draw, you'd rather have the argument be on turf, it's better for you. If Democrats can turn this into a debate about healthcare, that's probably good for them.

In terms of the individual state races, barring some something that happens over the next three days in the hearing, which would probably be unlikely, I think the biggest challenge for vulnerable Republicans in the States is the fortunes of Donald Trump which have been not doing so well recently. That's the bigger worry for Senate Republicans.

Brian: Yes, reverse coattails. Coney Barrett says in her opening statement, the text of which has been released, what all nominees say that the court should follow the law, not a judge's political views, but then it just so happens that what they call a textualist or an originalist interpretation of the constitution, the one that conservatives like winds up working to the disadvantage of legal abortion, the Affordable Care Act, gun control, gay rights, voting rights, and the list goes on. What's real there as you see it and what's not in the difference between the conservative judicial philosophy and conservative political interests?

John: They're in sync there on those issues. You've seen mostly you have to wait to see for decisions to come down to see if there's been any fibrillation between those two. Certainly, conservatives, including Judge Barrett, have been unhappy with John Roberts in some of his decisions. They argue that he's made decisions that are not consistent with the conservative judicial philosophy, but she's being put forward, not just for her judicial views but because conservatives believe that those views are going to be consistent with ideological conservative positions once she gets on the bench.

Again, there were some times surprises, but there's no expectation with her that there will be surprises on the order of Justice Stevens who was nominated by a Republican or Justice Souter where Republicans have, for years, nursed unhappiness that Republican presidents, let alone the that Eisenhower nominated Earl Warren and Brennan, that there's a big distinction between their rulings and the conservative ideology.

Brian: Another thing that Barrett says in her opening statement that nominees always say that the court should interpret the law, not make the law or try to solve society's problems from the bench. I think in anticipating those remarks, democratic Senator Dick Durbin said this, here's another clip from the hearing this morning that refers to Congress having passed Obamacare.

Dick Durbin: Republicans and Congress have been obsessed with repealing Obamacare for years, but they don't have the votes to do it. They couldn't get it done in the house, they couldn't get it done in the Senate thanks to three brave Republicans, including John McCain, and now, they've got to rely on the court to do their work. Judge Barrett, you're on the record. You wrote an article in which you criticized the NFIB versus Sebelius case where Chief Justice Roberts was the deciding vote upholding the ACA. Now your nomination is moving forward at unprecedented speed.

Brian: John, it seems to me that that does two things. The big political thing, as you were referring to before, that it's intended to do is say, "Hey, America, your healthcare is at stake here because we know how she's going to vote when the Obamacare case comes to the Supreme Court just after the election," but he's also making a legal argument, I think, or a judicial argument that you don't want to be an activist judge and overturn what the policy-making branch of government does, leave Obamacare alone.

John: Right. The legal argument is unlikely to sway her, but again, if the political objective of Democrats is to highlight what may happen when the Affordable Care Act comes before the Supreme Court, in this case, brought by attorney general, there's a question whether the individual mandate was unconstitutional, and therefore, the law must fall. If you can just keep the debate politically for Democrats who can't, barring some really crazy wild thing, can't stop this from going forward, they want to keep the political and the legal debate about this around the Affordable Care Act, that's a good gambit by Durbin. I think he's unlikely to convince the judge.

The other thing, obviously, to keep in mind too is the president of the United States says we need nine justices because the election is going to be decided in the Supreme Court, which raises the question of whether the judge that he named while this is going on and who has yet to be confirmed what role she plays now that he said that out loud. It'll be interesting how much that comes up, what her answer is, and how much Democrats see that as a politically useful fight to get in with her and with Republicans.

Brian: Right, I guess Democrats will be pushing for her to either say she'll recuse herself because of that from election-related decisions, or at least embarrasses her into having to remember that context, if the election does wind up being decided by the Supreme Court. From the democratic side, there's the court-packing issue, [unintelligible 00:13:39] and Joe Biden's refusal to take a public position on whether if they do confirm Amy Coney Barrett and what the Democrats see is a very illegitimate process, if he is president if he's elected would consider adding more justices to the court. Here's one of Biden's refusals to comment to a reporter from the other day.

Joe Biden: You'll know my opinion in court-packing when the election's over. Now look, I know this is a great question and I don't blame you for asking, but you know the moment I answered that question, the headline and every one of your papers will be about that.

Brian: John, politically, what's he doing here? Couldn't he just say he won't rule it in or out, he could consider the right kind of proposal if it's just the right kind that depoliticizes the court rather than further politicizes the court, something like that, that's a softer way of saying the same thing rather than "I won't tell you because it'll make a headline"?

John: [laughs] Yes, and people that might be irritated that you and I have kept talking about the politics so much, but, hey, we're so close to a presidential election. We do have a hangover of the Merrick Garland, which was the use of power politics to have a very significant and generational impact on people's lives. In other words, Mitch McConnell and Donald Trump in concert with each other helped deny Merrick Garland the seat, which then helped get Donald Trump elected, and that's the way Mitch McConnell sees it. Those were all political maneuvers that had serious policy consequences. It's a way in which when we talk about the politics here, it's not just theater review, it has real consequences.

On the court-packing question, basically, Biden has made the calculation that he wants this to be a short conversation. He would like the conversation to be on turf that he can keep it on, which is basically a referendum on the president's handling of COVID-19. While some people will be unhappy with his answer, and frankly, I would like, as a journalist, him to give us an answer, a presidential candidate owes the American people a view of what they're going to do once they get in office.

He's making a smart political calculation, which is basically, he'll get some minor criticism, but if he were to say one way or the other and even to flirt with it, it would distract potentially some number of news cycles away from what he'd like those news cycles to be on, which is basically the president's response to COVID-19.

Brian: We've just got a minute left. I read that Amy Coney Barrett actually signed a 2006 newspaper ad placed by an anti-abortion rights group a few years ago. Why wouldn't a public position like that make a judge have to recuse herself from abortion rights cases?

John: In a different world, it might, and that's a version of the argument they're making about the Affordable Care Act, essentially, and even, tangentially, the one they're making about the election and determining it if there's a case that comes to the Supreme Court about the 2020 election, but essentially, that's more of a norm than a rule. Basically, I think the answer from the judge will be I can keep things separate in my jurisprudence, and unless that affects the vote, Jesus, that argument is going to win the day.

Brian: John Dickerson, 60 Minutes correspondent, CBS News analyst, contributing writer to the Atlantic, a member of the Slate's Political Gabfest podcast trio, and author of the book The Hardest Job In The World: The American Presidency. John, thank you so much for doing this.

John: Thanks a lot, Brian, take care.

Brian: The Brian Lehrer Show is produced by Lisa Alison, Mary Croke, Zoe Azulay, Amina Srna, and Carl Boisrond. Zach Gottehrer-Cohen works on our daily politics podcast, sign up for that. Our interns are Dan Garma and Erica Erica Scalise, and it was Juliana Fonda at the audio controls. Thanks for listening today, I'm Brian Lehrer.

 

Copyright © 2020 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.