The Confirmation of Amy Coney Barrett: Day One of Questions

COMMENTARY Courts

The Confirmation of Amy Coney Barrett: Day One of Questions

Oct 14th, 2020 11 min read
COMMENTARY BY
Tommy Binion

Vice President of Government Relations

Thomas is responsible for Heritage's many programs on Capitol Hill and its engagement with the administration.
Supreme Court nominee Judge Amy Coney Barrett testifies during her confirmation hearing before the Senate Judiciary Committee on October 13, 2020. TOM WILLIAMS / Contributor / Getty Images

In this episode, Sens. Marsha Blackburn, R-Tenn., and Joni Ernst, R-Iowa, reflect on the long and grueling hearing day for Judge Amy Coney Barrett.

Though she was subjected to almost 11 hours of questions, Barrett was the picture of poise and impressed observers around the nation, say the two senators, who both sit on the Senate Judiciary Committee and have a firsthand perspective on the hearing.

>>> Perspectives: The Confirmation of Amy Coney Barrett

Tommy Binion:
Welcome back to Perspectives: The Confirmation of Amy Coney Barrett. I'm Tommy Binion with the Heritage Foundation, and in just a moment, I'll be joined by Senator Marsha Blackburn from Tennessee, and Senator Joni Ernst from Iowa. Both of these extraordinary women sit on the judiciary committee, where they are doing something very special today and all this week. They are participating in the confirmation hearings of Judge Amy Coney Barrett to become an Associate Justice of the United States Supreme court. Welcome, senators and thank you for your time.

Tommy Binion:
In the introduction to this podcast, we promised one of the most grueling processes in American politics. That is in general, the confirmation of a Supreme Court Justice. Today's hearings really delivered on that grueling nature, didn't they? 22 senators on the judiciary committee, 30 minutes to question the judge. Each can ask her about her articles. They can ask her about cases she's decided. They can ask her about her jurisprudence. They can ask her to do a short answer math problem if they wanted to. Of course, she didn't know exactly what they would ask. She had a little bit of time to prepare, but unlike other nominees, she came in with no notes and was extraordinarily impressive. Senators, what did you make of that?

Joni Ernst:
She was just so well prepared. She was so poised. She really did not stutter through any of her answers. She came across as being extremely well qualified and well prepared. So I was just so thankful for that. So many things were being thrown at her and yet, as I said, she just handled it with real poise. I commended her for just her overall demeanor and attitude through this really long day of questioning.

Tommy Binion:
She was unflappable indeed. She was referencing specific statues by their US Code number. She was quoting decisions. Senator Blackburn, have you been impressed so far?

Marsha Blackburn:
Oh, of course! I have been very impressed with her level of preparation, and the way she is so intent on making certain that we all realize that there is a separation between the Legislative Branch and the Judicial Branch and that she is not going to be an activist judge, that she is there to call balls and strikes. We make the laws, she applies the laws. If you don't like the law, change the law. But until that point, she will go by the law as written. And I think she has just been very clear about that, that she is a constitutionalist, a textualist, an originalist. And don't expect her to start doing your job for you simply because she's on the bench.

Tommy Binion:
She makes it look easy, but it's not. These political concepts, jurisprudence, the separation, the difference between the Legislative Branch and the Judicial Branch, what the role of a Supreme Court justice is, these are nuanced and fraught things. A layperson like myself could never step into that role and provide answers with such clarity that are sure to be quoted for decades to come. I'm just blown away with her performance so far. I've watched a lot of these hearings, you all have sat through a lot of these hearings. I don't think we've ever seen anything like this. Senator Blackburn, you talked about originalism and textualism. This is her jurisprudence. She talks a lot about Justice Scalia and how he sort of pioneered this way of thinking. Can you help us understand what these concepts mean and why are they part of these hearings?

Marsha Blackburn:
Yes, absolutely, because they are related concepts. When you look at originalism, it means that the constitution remains constant. Even with applications to different situations, the constitution remains constant. It is fixed. It is a fixed document. Textualism is related to that because it means it is as written. And so these two concepts work hand in hand. And it's interesting talking to people that have taught with the Judge Barrett or people that know her work, have been her students. They all talk about how she opened their minds and got them to think through the process, and to apply the concept of originalism. And, Tommy, in a time when we live in an instant gratification world, it is important to have a professor that in this cancel culture says, "We have to think about the point and the counterpoint. We have to think about the long term implications, what is going to establish precedent." And she has done that in her teaching and in her work as a circuit court judge.

Tommy Binion:
But she's definitely made it clear that, as a judge she's not imposing her beliefs on litigants that are in front of her. She's not imposing her beliefs, or even feelings about a case. She's made it clear that in her view, she's bound by the original meaning of the constitution, she's bound by the text of the statute. And as a circuit court judge, she was bound by the precedent set by the Supreme Court. Senator Ernst, you teased some of that out in your questioning of her. How did that go?

Joni Ernst:
Yes. It went really well. And again, I mean, she's so well qualified and well versed in these issues. And so when we focus on originalism, putting on that black robe, becoming neutral to politics, and focusing on the actual constitution, she is able to present herself in a neutral way. And so, one of the questions that I asked, it was a case involving a bubble zone or a buffer zone around an abortion clinic. And she used previous precedent and through that, she did establish that having that buffer zone was appropriate in that case. She does use precedents even when it comes to issues tied to abortion, where she uses the law and the precedent, following the originalist views, her judicial philosophy, to further develop those decisions. So we did talk about that.

Joni Ernst:
And again, she's being hit left and right by Democrats that want to paint her as someone who will be an activist judge, but she is not. She is one that follows the constitution. Many of them believe that we should have living constitutionalism, and she rejects that. Living constitutionalism is when you take whatever is popular in the moment and apply it to the law. And that's not what we're looking for in a Supreme Court Justice. We need stability for our nation. That's why textualism, originalism, is so important.

Tommy Binion:
I couldn't agree more. And you referenced some of the attacks that came from the other side. This is the moment where there is supposed to be scrutiny of Judge Barrett, but that scrutiny supposed to be here for qualifications. Let me ask you both a few rapid-fire questions. I think I know the answer to them. Did anyone question her qualifications to serve on the court?

Marsha Blackburn:
Oh yes, they have. They have questioned her all day long, whether it was her qualifications, her integrity, her judgment, how she has gone about making decisions. I thought Senator Lakey was very condescending to her this morning. Senator Hirano has been quite condescending to her. They have trotted out these tired, liberal, leftist, female arguments. If you do not agree with the left, then you are not fully female. And they have said as much today, as they have questioned her and have doubted her intelligence in her approach to questions.

Joni Ernst:
Yeah, they really were piling on her, but what Marsha and I can both agree on is, did they make their case? They didn't make their case. They were trying everything they could, but she kept her composure. And she proved to them that she is exactly the right choice for Supreme Court.

Marsha Blackburn:
I totally agree with that. And I loved the way Joni put her questions to her, presenting letters from groups that were in support and were grateful for Judge Barrett and the role model that she has set. And Chairman Graham did a wonderful job today as he opened everything, talking about the statements that Joni and I made yesterday, and talking about how this is a message to conservative women, and to young girls who are conservatives, that they too have the ability to dream those big dreams, and find a way to make them come true.

Joni Ernst:
Yes. And I love that, Marsha. And I was so grateful for the chairman for doing that. Says you and I both know, the left has a very different definition and ideal for women and, Marsha, I know you have a recent book out about being a conservative woman. And I think it is fantastic that we each can choose our own path and be a role model for young women. We don't have to fit into that typecast of the left.

Marsha Blackburn:
That's exactly right. We have the opportunity to do things the way we would like to do them and to still be a success and not fit into their definition.

Tommy Binion:
That has really been one of the messages that has come through so loud and clear. Senator Ernst, you said she is sort of beyond reproach. Her qualifications are top-notch, her integrity, her judgment. These are things that the Democrats, they may try but they haven't in any way made a case against those things. And what's shining through more is that you can be of independent thought and independent mind. You can form your own opinions. You don't have to agree with everyone on that dais to hold your own. I think that's so key. Okay so, they aren't able to, I think, land those punches, what else are they questioning her on? What are the issues bringing out?

Marsha Blackburn:
Well, they continue to bring out the issue of healthcare and the Affordable Care Act. There is a severability clause argument that's going to take place on November 10th, but that has absolutely nothing to do with taking down the law. But the Democrats are trying to make this hearing all about the ACA because they do not want a constitutionalist judge on the court that would block them from actually implementing government-run healthcare, from doing their healthcare takeover and taking away the private health insurance of 153 million Americans. That's the big goal for them. Obamacare is a step, but government-run healthcare is where they are headed. So, that is what they are trying to do.

Tommy Binion:
Yeah. Senator Blackburn, I think you're exactly right. The real world is exactly opposite the narrative that they're pushing. It isn't that Judge Barrett has been put in this position, as she said, on a mission to repeal the ACA, she's been put into this position because she's an originalist and textualist, but they know that means she won't be an activist judge for liberal priorities. It is actually the opposite narrative. Let's turn now to her religious beliefs. I think that they have mischaracterized her religious beliefs. One of the first things that happened in this hearing was they brought up an hour-long lecture she had given to a summertime fellowship of Christian law students. They brought up a statement of her faith belief that she signed long before she was in public life. These aren't, I don't think, things that are appropriate to be part of this process. We don't have a religious test to serve in public office in this country. Senator Ernst, we talked a lot today about religious freedom. Why is that so important?

Joni Ernst:
Well, it is exactly as Judge Barrett said, Tommy. She said that it is so important to our nation because those that have been religiously persecuted in other countries found safe haven here at the very founding of our great United States of America. And so, it is one of those intrinsic values that we have espoused as a nation where our government can't decide and tell you how to practice your beliefs. And we do have that religious freedom. And so while she is a practicing Catholic, we know that, she does not hide that fact, as a person, as a mother who has taught her children in the Catholic faith she has raised them, of course, to be in the Catholic faith.

Joni Ernst:
What she has reminded us many times over during the hearing is that while she does have a personal life, when she is serving as a judge, or hopefully soon as a justice, she will be impartial, and will put on that blindfold so that she will administer justice fairly, regardless of her religious affiliation. But it is so important to our country. But we understand, and again, she said this many times, that she will always be an impartial justice in administering the law, judging the law based upon our constitution. So it is very important to our country. And it's just important our citizens understand, we do have religious freedoms in this country. So many other countries around the globe lack that, and that's why we are such an incredible nation.

Tommy Binion:
I couldn't agree more. I do have a sense that it's under threat and it is always incumbent upon those of you in public life to protect that most fundamental right of religious liberty. And we can see that you're doing that in the judiciary committee and on the Senate today. We're just getting started. We are just getting started. We've got a whole nother day of questions from the senators tomorrow. We're going to learn more about who Amy Coney Barrett is and what her process is for making decisions. We're going to jump into that in tomorrow's episode. For now, the senators have some more hearing to get through tonight. So with that, I just want to say, thank you so much for your time, and congratulations on so far a really great first day of hearings.

Joni Ernst:
Thanks so much, Tommy.

Tommy Binion:
Thank you, Senator. Have a nice night. Appreciate it.

Marsha Blackburn:
Thank you.

Speaker:
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