5 takeaways from Day Two of Amy Coney Barrett’s confirmation hearing

Tuesday had all the trappings of what we have come to expect from 2020

Rhode Island Sen. Sheldon Whitehouse, speaks Tuesday on the second day of confirmation hearings for Supreme Court nominee Amy Coney Barrett. (Bill Clark/CQ Roll Call)
Rhode Island Sen. Sheldon Whitehouse, speaks Tuesday on the second day of confirmation hearings for Supreme Court nominee Amy Coney Barrett. (Bill Clark/CQ Roll Call)
Posted October 13, 2020 at 7:32pm

It was a very 2020 Supreme Court confirmation hearing Tuesday, as Amy Coney Barrett fielded her first round of questions on socially divisive issues from socially distanced members of the Senate Judiciary Committee.

Senate Republicans have said they want to hold a floor vote on Barrett’s nomination by the end of the month, likely just days before the Nov. 3 election and in the midst of a global pandemic that has turned Washington, and the country, on its head.

Across hours of Tuesday’s hearing, neither COVID-19 nor the election was ever far from anyone's mind, making this confirmation different from any before. Abortion, health care and race dominated the day, and the nominee did her best to sidestep most questions.

Floyd video moment

Barrett resisted delving into the issue of systemic racism in American life or possible solutions. But she gave a raw and candid response to questions from Illinois Democrat Richard J. Durbin about the killing of George Floyd at the hands of police, which sparked nationwide protests and activism over racial justice.

Barrett said she had seen the video of Floyd’s death and described it as a serious and deeply personal issue for her multiracial family, which includes two Black children adopted from Haiti.

“Given that I have two Black children, that was very, very personal for my family,” Barrett said.

Barrett said her children “had the benefit of growing up in a cocoon where they had not experienced yet hatred or violence.” Her 17-year-old daughter Vivian was particularly affected by Floyd’s death.

“It was very difficult for her,” Barrett said. “We wept together in my room.”

Later in the day, Durbin told reporters that Barrett’s answer was personal and relatable.

“I thought it was a very genuine and human response, particularly from a mother, as she said, of a biracial family. And I get it. I’ve sat down with my grandkids and others to try to explain this horrible eight minutes and 46 seconds. She went through the same experiences as a mom,” Durbin said.

When discussing the broader issue of racism, Barrett declined to put “my finger on the nature of the problem” because they are “hotly contested policy questions.”

“I think it is an entirely uncontroversial and obvious statement, given as we talked about the George Floyd video, that racism persists in our country,” she said.

But she said as a judge, she isn’t in a position to make broader statements or prescriptions for solving racism.

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Pandemic reality

Two Senate Judiciary Republicans have tested positive for COVID-19 in the last two weeks — Utah’s Mike Lee and North Carolina’s Thom Tillis. Members of the public were not allowed in the hearing room, and several committee members appeared remotely. A handful of Democrats argued for the Senate — which has recessed until later this month, in part due to the virus — to consider economic relief legislation instead of wrangling over Barrett’s nomination.

“Maybe you’re trying to teach your first grader how to do a mute button to go to school, or maybe you’ve got a small business that you had to close down or that’s struggling,” Minnesota Democrat Amy Klobuchar said. “We should be doing something else right now. We shouldn’t be doing that. We should be passing coronavirus relief, like the House just did, which was a significant bill that would have been a big help."

Lee and Tillis questioned Barrett in person Tuesday. Tillis, who spoke while not wearing a mask, cited a letter from his physician that he was no longer contagious, as Lee had done the day before.

A few Democrats, including Patrick J. Leahy of Vermont and vice presidential nominee Kamala Harris of California, appeared remotely because of safety concerns despite Chairman Lindsey Graham’s assurances that the committee was following all health protocols.

On his first day back in the Senate after isolating during his bout with COVID-19, Tillis stressed that the chamber, which has a fair number of high-risk individuals, was an “essential business.”

“I believe the Architect of the Capitol and our attending physicians here have taken great measures to make sure we can safely come to work, and I would encourage anybody who works in the Senate to come to work,” he said.

Barrett’s sidesteps

Many senators spent their 30 minutes making speeches. But when they did ask the nominee questions, Barrett frequently declined to answer, citing her position as a sitting judge on the 7th U.S. Circuit Court of Appeals.

She said she would offer no opinions about cases and had not discussed specific cases with the administration.

Barrett, whose Catholic faith and personal anti-abortion stance have been scrutinized, stressed that she doesn’t regard decisions like Roe vs. Wade as “super precedent” beyond question. But she said she has no animus toward the case.

“I have an agenda to stick to the rule of law and decide cases as they come," Barrett said.

At one point, Judiciary ranking member Dianne Feinstein, D-Calif., pressed Barrett about a claim that President Donald Trump could postpone the election.

Barrett said engaging in a question like that would make her a “legal pundit.” Barrett also declined to answer a question on whether voter intimidation would be unlawful.

She likewise declined to say whether she agreed with late Justice Antonin Scalia’s dissent in the Supreme Court case that held same-sex marriage as constitutional. She said separately that she does not discriminate based on “sexual preference.”

Sen. Mazie K. Hirono seized on that comment, arguing that Barrett’s use of the word “preference” implied she thought sexual orientation was in fact a choice.

“So if it is your view that sexual orientation is merely a preference … the LGBTQ community should be rightly concerned whether you would uphold their constitutional right to marry,” the Hawaii Democrat said.

“I certainly did not mean and would never mean to use a term that would cause offense in the LGBTQ community,” Barrett said.

Democrats also questioned Barrett about Trump’s statements on his expectations from his third Supreme Court appointment, including the overturning of the 2010 health care law and weighing in on the results of this year’s election.

“I can’t speak to what the president has said on Twitter,” the nominee said.

Lecture hall

Some senators barely posed questions at all, choosing to use their time to share their own legal views.

Lee used most of his 30 minutes to lecture the room about abortion and separation of powers, invoking the Federalist Papers and Alexander Hamilton.

He was followed by Rhode Island Democrat Sheldon Whitehouse, who used his time to give a detailed rebuke of dark money and the influence of special interest groups, like the Federalist Society, in politics and the courts.

“Something is not right around the court, and dark money has a lot to do with it,” said Whitehouse, who did not ask Barrett a single question during his allotted time.

He used a series of posters to illustrate how the Federalist Society and other groups have reshaped the federal bench through their selection and advocacy for conservative judicial nominees and fundraising to support the president’s picks.

Texas Republican Ted Cruz also used his time for a lengthy monologue on topics ranging from the Second Amendment to religious freedom

At the very end of his speech, he said, “Judge Barrett, I’m not going to ask you to respond to any of that.”

Cruz instead asked the federal appeals court judge and former law professor about her hobbies and her children.

He asked if she spoke any foreign languages and if she played any musical instruments. After Barrett said piano, he asked if her children also studied the instrument.

Cruz’s final question to Barrett: “What advice would you give to little girls?”

Barrett recalled something her father once told her: “Anything boys can do, girls can do better.” But she then added, “Since my sons are sitting behind me, I’ll say boys are great too.”

ACA vs. ACB

For Democrats, defending the 2010 health care law, known as the Affordable Care Act, was priority No. 1 on Tuesday, with the Supreme Court scheduled to hear arguments on the law on Nov. 10.

“Let me just say that the Affordable Care Act really is at the heart of this, as you can tell, on the Democratic side,” Durbin said early in the day.

Barrett said she would not weigh in during the hearing on the coming Supreme Court case over the law.

“I’m not hostile to the ACA. I’m not hostile to any statute that you pass,” she said.

Klobuchar pushed Barrett on her previous criticism of the law, particularly where she might have sided with Scalia, for whom Barrett once clerked. Klobuchar argued that without straight answers about how Barrett would rule, they have to follow the “tracks” left in her writing.

“You criticize the decision written by [Chief Justice John G. Roberts Jr.] upholding the Affordable Care Act. That is, to me, one big track. Even if you didn’t consider yourself criticizing him personally, you’ve criticized the reasoning,” Klobuchar said.

Texas Sen. John Cornyn and other Republicans pushed back on the idea that Barrett would overturn the law.

“It’s ACA vs. ACB,” Cornyn mused, before pointing out that Roberts, a George W. Bush appointee, wrote two opinions that upheld the constitutionality of the law.