Photo by Ian Hutchinson on Unsplash
During her confirmation hearings, Amy Coney Barrett faced questions from senators, and she dodged many of them. Some were more or less expected of a Supreme Court nominee, but some were obvious questions of basic democracy which, when dodged, visibly shocked several senators.
This includes questions about: commitment to a peaceful transfer of power, presidents pardoning themselves, delaying the election, and voter intimidation. President Trump had already put Barrett’s nomination under a cloud by openly asserting he wanted her confirmed to rule on election cases, making these non-answers all the more troubling.
Presidential power:
Should every president commit to the peaceful transfer of power? “I want to stay out of it and I don’t want to express a view on it”
BOOKER: “Do you believe that every president should make a commitment unequivocally and resolutely to the peaceful transfer of power?”
BARRETT: “Well, Senator, that seems to me to be pulling me in a little bit into this question of whether the president has said that he would not peacefully leave office. And so to the extent that this is a political controversy right now, as a judge, I want to stay out of it and I don’t want to express a view on.”
Can the president pardon himself? “that’s not one that I can answer.”
BOOKER: “Do you think that the president has the power to pardon himself for any past or future crimes he may have committed against the United States of America?”
BARRETT: “Well, Senator Booker, that would be a legal question, that would be a constitutional question. And so in keeping with my obligation not to give hints, previews or forecasts of how to resolve the case, that’s not one that I can answer.”
Can a president pardon himself? “It’s not one on which I can offer a view”
LEAHY: “Does a president have an absolute right to pardon himself for a crime? We heard this question after President Nixon’s impeachment?”
BARRETT: “Senator Leahy, so far as I know, that question has never been litigated. That question has never arisen. That question may or may not arise, but it’s one that calls for legal analysis of what the scope of the pardon power is. So because it would be opining on an open question when I haven’t gone through the judicial process to decide it, it’s not one on which I can offer a view.”
Can the president unilaterally delay the election? “I would need to hear arguments from the litigants…”
FEINSTEIN: “Does the Constitution give the President of the United States the authority to unilaterally delay a general election under any circumstances? Does federal law?”
BARRETT: “Well Senator, if that question ever came before me, I would need to hear arguments from the litigants, and read briefs, and consult with my law clerks, and talk to my colleagues, and go through the opinion writing process. So, if I give off the cuff answers, then I would be basically a legal pundit, and I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind.”
You sure about the election delay nonanswer? “I’ve given that response to every hypothetical that I’ve been asked…”
DURBIN: Senator Feinstein then asked you, “Does the Constitution give the president of the United States the authority…” Listen closely to what she asked you, “To unilaterally delay a general election under any circumstances does federal law?” Your answer, “Well Senator, if that question ever came before me, I would need to hear arguments from the litigants, read briefs, and consult my law clerks. Talk to my colleagues, go through the opinion writing process.” You went on to say, you didn’t want to give off the cuff answers like a pundit, but rather approach matters with an open mind. Is that still your response?
BARRETT: “Senator I’ve given that response to every hypothetical that I’ve been asked in the hearings and as I said yesterday, I do that regardless whether it’s easy or hard, I don’t do that to try to… Whether the question I mean would be easier or hard, I don’t try to do that to signal it, but I do that because it would be inappropriate for me to make a comment and I don’t think I’ve answered any legal hypotheticals in keeping with the Justice Ginsburg rule.”
Can a president ignore a Court order? “We can’t do anything to enforce our own judgments”
LEAHY: “Do you agree that a president must follow a court order? And if the Supreme Court’s word is final or is it Supreme, court’s only final as far as the lower courts are concerned?”
BARRETT: “Senator Leahy, I’m glad to have the opportunity to clarify from our conversation. First, I know that both Justices Gorsuch and Kavanaugh said that no man is above the law. And I agree with that. But I conversed with Senator Lee yesterday about Federalist 78, which says that courts have neither force nor will. In other words, we can’t do anything to enforce our own judgments. And so what I meant in the conversation with you is that as a matter of law, the Supreme Court may have the final word, but the Supreme Court lacks control over what happens after that. The Supreme Court and any federal court has no power, no force, and no will. So it relies on the other branches to react to its judgements accordingly.”
Voter intimidation:
Is it illegal to intimidate voters at the polls? “I can’t answer questions like that.”
KLOBUCHAR: “Is it illegal to intimidate voters at the polls?”
BARRETT: “Senator Klobuchar, I can’t characterize the facts in a hypothetical situation and I can’t apply the law to a hypothetical set of facts. I can only decide cases as they come to me, litigated by parties on a full record after fully engaging precedent, talking to colleagues, writing an opinion. And so I can’t answer questions like that.”
Would a reasonable person be intimidated by armed groups at the polls? “It’s not something really that’s appropriate for me to comment on.”
KLOBUCHAR: “Do you think a reasonable person would feel intimidated by the presence of armed civilian groups at the polls?”
BARRETT: “Senator Klobuchar, that is eliciting. I’m not sure whether to say it’s eliciting a legal opinion from me because the reasonable person standard, as you know, is more common in the law, or just an opinion as a citizen. But it’s not something really that’s appropriate for me to comment on.”
Election disputes:
Will you commit to recusing yourself from a case arising from a dispute in the presidential election? “I can’t commit to you right now.”
COONS: “Given what President Trump said, given the rushed context of this confirmation, will you commit to recusing herself from any case arising from a dispute in the presidential election results three weeks from now?”
BARRETT: “… You’re right that the statute does require a justice or judge to recuse when there is an appearance of bias. And what I will commit to every of this committee, to the rest of the Senate, and to the American people is that I will consider all factors that are relevant to that question, relevant to that question that requires recusal when there’s an appearance of bias. And there is case law under the statute. And as I referenced earlier in describing the recusal process at the Supreme Court, Justice Ginsburg said that it is always done with consultation of the other justices. And so I promise you that if I were confirmed and if an election dispute arises, both of which are ifs, that I would very seriously undertake that process and I would consider every relevant factor. I can’t commit to you right now for the reasons that we’ve talked about before, but I do assure you of my integrity and I do assure you that I would take that question very seriously.”
Would you commit to recuse yourself from 2020 election disputes? “I can’t offer legal conclusion right now about the outcome of the decision I would reach.”
LEAHY: “So my request is in protecting confidence in both you and the Court, are you able to commit to recuse yourself from disputes that arise out of the 2020 presidential election?”
BARRETT: “Senator Leahy, I commit to you to fully and faithfully applying the law of recusal and part of that law is to consider any appearance questions. And I will apply the factors that other Justices have before me in determining whether the circumstances require my recusal or not. But I can’t offer legal conclusion right now about the outcome of the decision I would reach.”
Do state legislatures need to abide by their state’s constitutions? “that would be eliciting an opinion from me”
KLOBUCHAR: “My question is this, must state legislatures abide by their own state’s Constitution when exercising their authority under the Elections Clause?”
BARRETT: “Senator Klobuchar, that would be eliciting an opinion from me about whether I agreed or disagreed with the result in that case.”
Voting rights:
Can the president unilaterally deny the right to vote to someone based on race or gender? “I really can’t say anything more than I’m not going to answer hypotheticals.”
DURBIN: “The 15th amendment, the right of citizens in the United States to vote shall not be denied or abridged by the United States or any state on account of race. For an originalist and a textualist that is clear text as I see it, but when asked whether or not the president has any authority to unilaterally deny that right to vote for a person based on race or even gender, are you saying you can’t answer that question?”
BARRETT: “Senator, I just referenced the 14th and 15th amendments. The same one that you just repeated back to me that do prohibit discrimination on the basis of race and voting. So as I said, I don’t know how else I can say it. The Constitution contains provisions that prohibit discrimination on the basis of race and voting.”
DURBIN: “But whether a president can unilaterally deny, you’re not going to answer yes or no?”
BARRETT: “Well Senator, you’ve asked a couple of different questions about what the president might be able to unilaterally do and I think that I really can’t say anything more than I’m not going to answer hypotheticals.”
Are absentee ballots essential for voters during a global pandemic?? “I can’t express a view”
KLOBUCHAR: “We’re in the middle of a global pandemic that is forcing voters to choose between their health and their vote. Are absentee ballots, or better known as mail-in ballots, an essential way to vote for millions of Americans right now?”
BARRETT: “That’s a matter of policy on which I can’t express a view.”
Extending absentee ballot deadlines during a deadly pandemic? “I can’t answer.”
FEINSTEIN: “But let me ask you, last April, in the midst of the COVID-19 pandemic, the Supreme Court prevented Wisconsin from implementing a district court order that would have extended the state’s deadline for submitting absentee ballots. This would have given voters greater flexibility in casting absentee ballots for Wisconsin’s primary election. Justice Ginsburg dissented. She criticized the court’s majority for putting its head in the sand with regard to the risks posed by COVID-19. She emphasized that courts and election officials must be able to react to a grave rapidly developing public health crisis. And she noted that the Supreme Court’s, “Suggestion that the current situation is not substantially different from an ordinary election boggles the mind.” Would you agree, and what is your position?”
BARRETT: “Well, Senator Feinstein, that’s obviously a very recent case. And in that case, the court had to address the constitutional question. And so, again, it’s one of those things that I can’t answer both because it would be requiring me to grade and express agreement or disagreement with the Supreme Court opinion. But also, it’s the kind of case that could come up in a closely related form, either on the Seventh Circuit, Wisconsin is within the seventh circuit’s jurisdiction or on the Supreme Court.”
Can Congress protect the right to vote? “I can’t express a view on that.”
KLOBUCHAR: “Do you agree with Justice Ginsburg’s conclusion that the Constitution clearly empowers Congress to protect the right to vote?”
BARRETT: “Well, Senator, that would be eliciting an opinion from me on whether the dissent or the majority was right in Shelby County, and I can’t express a view on that, as I’ve said, because it would be inconsistent with the judicial role.”
Is the Voting Rights Act a ‘perpetuation of racial entitlement?’ It’s ‘simply really not something I can opine on”
FEINSTEIN: “Do you agree with Justice Scalia’s assertion that the Voting Rights Act is a ‘perpetuation of racial entitlement’?”
BARRETT: “Senator Feinstein, I don’t obviously know what Justice Scalia was thinking when he said that. And any characterization of the Voting Rights Act or a statement like that is simply really not something I can opine on.”
Acknowledge nonwhite voters disproportionately face obstacles trying to vote? “I wasn’t aware.”
LEAHY: “Would you accept the fact or would you acknowledge the fact that communities of color disproportionately face restrictions and obstacles when they are casting their ballots?”
BARRETT: “Senator, I wasn’t aware of the statistics that you were citing to me. If it became relevant in any case, that was litigated before me and was presented to me, I would of course have an open mind about it.”
Are poll taxes unconstitutional? “Voting is a fundamental individual right that is critical to our democracy”
BOOKER: “So poll taxes, you would say unconstitutional.”
BARRETT: “Senator, voting is a fundamental individual right that is critical to our democracy. The 14th amendment, the point I was making, is that the 14th amendment does expressly contemplate that states might deprive felons of voting rights because it’s in the text.”
Does voting discrimination exist? “I will not comment”
HARRIS: “Judge Barrett, my question, however, is do you agree with Chief Justice Roberts who said, ‘Voting discrimination still exists. No one doubts that.’ Do you agree with that statement?”
BARRETT: “Senator Harris, I will not comment on what any justice said. An opinion, whether an opinion is right or wrong or endorse that proposition.
Do you agree with a fact? “I’m not going to make a comment”
HARRIS: “Well, I’m asking you… So do you call it a proposition or a fact? Are you saying you do not agree with a fact?”
BARRETT: “Senator, I’m not going to make a comment. I’m not going to say that I endorse either the majority or the dissent in the case of Shelby County.”
HARRIS: “Well, I just want to understand. Are you saying that you refuse to dispute a known fact or that you refuse to agree with a known fact?
BARRETT: “Senator, I’m not exactly sure what you’re getting at with asking me to endorse the fact or whether any particular practice constitutes voter discrimination. I’m very happy to say that I think racial discrimination still exists in the United States. And I think we’ve seen evidence of that this summer, but as to engaging-”
Does voting discrimination exist in America? “I’m not going to express an opinion”
HARRIS: “Do you think that voting discrimination exists based on rights in America, in any form?”
BARRETT: “Senator Harris, there have been cases. We’ve talked in this hearing about the Wisconsin case that went up to the court involving voting. I think anything, any opinion that I would express, and I don’t mean to signal that I disagree with this statement either. What I mean to say is I’m not going to express an opinion because these are very charged issues. They have been litigated in the courts and so I will not engage on that question.
Ethics:
Should a president disclose who he owes several hundred million dollars to? “That clearly is an issue that’s being litigated, and one present in court is not one on which I can offer an opinion.”
BOOKER: “If a president is personally responsible for several hundred million dollars in debt while he’s in office potentially to foreign entities, do you think he has a responsibility to disclose who his lenders are, especially given the Emoluments Clause?”
BARRETT: “Well, Senator there’s litigation about the Emoluments Clause, I think it was in the Fourth Circuit. I don’t know where it stands, but that clearly is an issue that’s being litigated. And one present in court is not one on which I can offer an opinion.”
Are foreign governments paying the president what the Framers were concerned with when writing the emoluments clause? “That would be one that I can’t express an opinion on.”
LEAHY: “And now we find that 200 companies and foreign governments have patronized Trump properties. At the same time, they were getting benefits from him and the administration. First two years of his presidency, he earned $73 million for his properties abroad. And an originalist, as you are, do you think these companies or foreign governments would have fallen within the framers’ zone of concern in writing the emolument clause?”
BARRETT: “Senator, the emoluments clause… It’s under litigation. There was a fourth circuit case that recently involved this question. So as a matter that’s being litigated, it’s very clear that that would be one that I can’t express an opinion on, because it could come before me.”
Rushed process:
Should we fill a Court seat while people are voting? “That is a question for the political branches.”
KLOBUCHAR: “People are voting right now as we speak. I think something like 9 million votes have been cast. Do you think it is faithful to our democratic principles to fill a Supreme Court vacancy this close to an election when people are still voting?”
BARRETT: “Senator Klobuchar, I think that is a question for the political branches.”
A Republican senator asked something very basic, which a nominee given a normal amount of time to prepare might have been able to answer: what’s in the First Amendment? She listed four of the five freedoms, but blanked on the fifth, trailing “…what am I missing?”
SASSE: “What are the five freedoms of the First Amendment?”
BARRETT: “Speech, religion, press, assembly… Speech, press, religion, assembly. I don’t know, what am I missing?”
SASSE: “Redress or protest.”
Does voter suppression exist? “We have the Voting Rights Act”
HIRONO: “Do you believe, Judge Barrett, that voter suppression or discrimination in voting currently exists?”
BARRETT: “Senator Hirono, we have the Voting Rights Act that offers protection, and Section 2 of the Voting Rights Act, which was not at issue in Shelby County, protects voters from any kind of measures that would discriminate on the basis of race. So that gives protection.”
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Barrett also refused to answer whether she thought Medicare was unconstitutional, whether birth control should be banned, if the Court was wrong to legalize birth control, if climate change is real and a threat, if human beings cause global warming, and if it is wrong to separate a child from their parents to send a message.