The Confirmation of Amy Coney Barrett: Opening Day

COMMENTARY Political Process

The Confirmation of Amy Coney Barrett: Opening Day

Oct 13th, 2020 17 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 is sworn into her Senate Judiciary Committee confirmation hearing on Capitol Hill on October 12, 2020. Pool / Getty Images

The news has been full of stories on SCOTUS nominee Amy Coney Barrett. It can be hard to know who to trust on this highly polarized issue. That’s why The Heritage Foundation is going straight to the source to provide you with in-depth and honest coverage of every step of the confirmation process.

Perspectives: The Confirmation of Amy Coney Barrett” is a special podcast series that will give you everything you need to know on the most impactful Supreme Court confirmation in generations.

Tommy Binion:
Judge Amy Coney Barrett is a brilliant constitutionalist judge who is about to go through one of the most grueling trials in American politics, a Senate Confirmation to the United States Supreme Court. Welcome to the first episode of 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 Senators Blackburn and Ernst from Tennessee and Iowa, respectively. They've both just left the first day of hearings in this confirmation process. Thank you so much for agreeing to share your unique perspectives on this historic confirmation with the American people. I can't think of anything more interesting happening right now, and I can't think of any more relevant perspective than that of your own. I'm so glad to have you with us today.

Sen. Enrst:
Yeah, thank you so much, Tommy. It's great to be with you.

Sen. Blackburn:
Oh, thank you. Absolutely, I am looking forward to going through this process and just so pleased to join you today. Thanks.

Tommy Binion:
Well, I can tell already that the listeners are really going to get a kick out of you two, out of your unique perspective, and what you have to share with us. Let's get right to the point. You have both just left the judiciary hearing room where we heard from every Senator on the committee, and we heard from Judge Barrett herself. Tell us about the day. What happened? What was said? What are the important takeaways?

Sen. Blackburn:
Oh, Tommy, it is so typical of the Left. They are like The Stepford Wives of liberalism. They get their talking points, and they're going to stick to them. And today, one of their key goals was to try to create a panic for the American people. I really felt like they were projecting their fears of Judge Barrett onto the American people saying people were scared, that they were fearful, that they were terrified of Judge Barrett and this confirmation. And why were they saying that? A lot of it had to do with healthcare. They're saying that she will push to repeal the Affordable Care Act. But that's the Democrats, they want activist judges on the bench. And really what they're afraid of is that a constitutional Supreme Court would block their goal of stripping every one of their private health insurance, and putting everyone into a Medicaid, government-run, socialized medicine program.

Sen. Enrst:
Yes. Hey, I will agree wholeheartedly with Marsha. They are really trying to make election ads more so than they are actually focusing on this Supreme Court Justice nominee, who is in front of us. They did not talk about her qualifications and the fact that she is an incredible jurist. They were very focused on those scare tactics that Marsha mentioned. And it was very, very obvious that they were projecting their values and their desires to have activist judges on the Supreme Court onto Judge Barrett, which is wholly unfair of them to do so.

Sen. Enrst:
What we are looking for as Republicans for a Supreme Court Justice nominee is that they will uphold the Constitution, and so we were happy to bring that home. One of the funniest lines this afternoon was when Senator John Kennedy, he reminded everybody of the Kavanaugh hearings, and said it was very much like the Cantina Scene of Star Wars. We had all these different characters trying to tear down Justice Kavanaugh. And we will see that, I am sure, as we go through this nominee hearings process as well. But you know what? Judge Barrett, she's pretty fantastic. And I'm really excited to have her as our nominee.

Tommy Binion:
She is an inspiration. And Senator John Kennedy, that was a funny line. I'm expecting more funny line from him as we go along. It seems like part of the effect of the tactics that you're both talking about of the Democrats is really just to confuse what's happening. If somebody tuned in at any point in these hearings, they might be a little bit confused as to what is happening. Let's just remind the listeners what we're trying to do here. We're trying to confirm a judge to the Supreme Court of the land to make her an associate justice of the Supreme Court. Let's give the listeners a little Schoolhouse Rock. How does a person become a Supreme Court Justice? What is the role of the Senate? And what are the role of the Senate Judiciary Committee?

Sen. Enrst:
Oh, certainly. Well, at first you have to have a vacancy on the Supreme Court. And oddly enough, that Constitution does not spell out any specific qualifications to become a Supreme Court Justice, that there is a traditional path forward where folks will normally go to law school, they'll become a judge, work their way up, and then catch the attention maybe of those that might surround a president. And then a president will make that nomination of someone for the Supreme Court, then the nominee will go through hearings in the Senate. The Senate does provide the advice and consent for those nominees. And then, we get involved in the process just as Marsha and I are going through that this week. And it's absolutely fascinating. I'm just thrilled to be part of it.

Sen. Blackburn:
What Joni said is exactly right. And I would add one thing to that, that I think is so important. They mentioned Justice Ginsburg today. And of course, we remember her fondly. And we know that millions of Americans, us included, mourn her loss and appreciate what she did to work for equality and justice. But listening to the hearing today, Tommy, I think that many people would get the impression that justices pick their replacement or that justices own that seat. And that is not correct. It is the President who nominate. And then the Senate provides advice and consent when there is a vacancy. And as Joni said, "Our job is to fill the vacancies." So that is a process that started today, and will go for the next several days until we call the confirmation vote.

Tommy Binion:
That's exactly right. And as the hearings unfolded today, we got quite a bit of history from the various senators. For instance, I learned that 29 times, there's been a vacancy in election year. And 29 times, the sitting president has decided to make a nomination. We learned all about the various statistics about how long generally is between the time a nomination is made and the confirmation hearings begin. And it seems like this particular confirmation process is unfolding exactly like all of the others have in history. And it seems like even in this time of COVID, it is unfolding very normally. We had some senators appear virtually, and some in person. But all in all, it felt like a fairly normal Supreme Court confirmation process. We've already mentioned some of the major themes from today's hearings, but let's bring out a few more. We've talked about Judge Barrett's qualifications. The Left seemed focused on some certain issues. Senator Blackburn, you referenced healthcare, tease that out a little bit more for us.

Sen. Blackburn:
Yes, I thought it was so curious. It is as if they were in a finance committee hearing or a health committee hearing, because they kept talking about the Affordable Care Act. And they were talking about the millions of Americans that would lose their healthcare if you confirmed Judge Barrett. Well, what they're doing is saying, they know how she's going to vote on a case that is set to go before the court on November 10th. That is incorrect. They do not know how she is going to vote. The reason they don't know is that Judge Barrett is a textualist and an originalist when it comes to the court. That means, just like Justice Scalia, she believes that the Constitution is a fixed document. And so they can't say they know how she is going to proceed on any given case. So they continued to return to this theme, which was a false assumption that she would make a certain recommendation. And I found it to be very curious.

Sen. Blackburn:
You have to go in and look at what we're dealing with here. There are 178 million Americans that have private insurance. Either they get it through the marketplace, the open marketplace, or they get it from their employer. There are 8.3 million Americans that are enrolled in the ObamaCare or Affordable Care Act marketplace, 8.3 million Americans. There are 57 million Americans that are on Medicare, and there are 66 million Americans that are on Medicaid. Between TRICARE and the VA, which covers our military population, there are 17 million Americans. Now what the Democrats are wanting to do is take away all of those different access point to getting healthcare, and put everybody into a government-run, socialized, Medicaid-type system, where a bureaucrat determines your health care. You won't even have a doctor. You will go to a doctor that they assign you to. So this is their goal is that socialized system. And it was very clear today, they do not want a Supreme Court Justice who may say, "No, Democrats. You cannot do that."

Tommy Binion:
That's such a great point. The Judge herself quoted a quote I love from Justice Scalia about a time or times where he was forced to make a decision that was even outside of what he would have done if not for the law. And he said, he wrote in his opinion, "That is what it mean to have a government of laws, rather than a government of men." I just think that it is a powerful way of interpreting and protecting the Constitution to say, "I'm going to be an originalist. I'm going to be a textualist. I'm going to interpret exactly what is in front of me based on the words that are there. And not bring my own feelings about a certain issue into it." We have here a clip of each of your opening statements, which I thought were extraordinary. Let's go ahead and play that now.

Sen. Blackburn:
Unfortunately, it's neither rare nor remarkable to see the kind of performances my Democratic colleagues had put on today. What they're trying to do is to convince the American people that they should be terrified of Judge Amy Coney Barrett. If you listen closely to their full statements, it betrays their true intent. If you go back through the transcript, you're going to find not a coherent legal counter-argument, but a panicked stumped speech on behalf of their controversial platform. Rather than reviewing your judicial philosophies, they're instead choosing to project their own desires and their fears onto the American people. It sounds as if they are trying to create a panic. They decided to drum up indignation over the fact that you dared to present a counter argument against the constitutionality of the Affordable Care Act.

Sen. Blackburn:
Apparently, a difference of opinion between two brilliant jurists, who often disagree is just too much for them. The rhetoric is unsettling. But after listening to them, I worry more about it's underpinnings. Because my colleagues' remarks have displayed their troubling belief that nothing but an activist judiciary will do for them. Given your track record, you'd think that my colleagues would jump at the opportunity to support a successful female legal superstar, who is highly regarded by both her Democratic and Republican colleagues, and who is a working mom. But as today's increasingly paternalistic, and frankly, disrespectful arguments have shown, if they had their way, only certain kinds of women would be allowed into this hearing room.

Sen. Enrst:
Every year, I travel to every single one of Iowa's 99 counties, and talk to men and women from all walks of life. Whether they are farmers, or nurses, or small business owners, they want a government that is accountable to them. When Congress makes a law that oversteps the Constitution, the ripples can be felt whether it's on farms, and Montgomery County, where I'm from, and the manufacturing facilities of Dubuque. It can be felt in the church services of Sioux City and the community meetings in Waterloo. The Supreme Court's only job is to rule on the cases before it, and defend the Constitution. To do that well, a justice needs to be thoughtful, restrained, and wise. Judge Barrett, so far, I have seen all of those things in you. I am so glad that we have you in front of us. I look forward to learning more about you. I want to thank you and your family for being in this nomination today. And certainly, this, folks, is what a mom can do.

Tommy Binion:
Senator Ernst, I love that line that you ended with. And certainly, this, folks is what a mom can do. Share with us what that means to you.

Sen. Enrst:
Yes, and this is something that I have spoken about many times over. Where the Democrats are really targeting Judge Barrett on her religious beliefs, but also tied in with that, the fact that she is a mother and has seven children. And so there have been numerous attacks just thrown at her from all different angles. But I think it's really important that we stress to young women all across this nation that moms can be Supreme Court Justices. Moms can be senators. Moms can be combat veterans. There are so many things that women can do.

Sen. Enrst:
And just because they're a mother, doesn't cut them out of opportunity. So I'm stressing that time and time again that this is what a mom can do. And certainly, this is something that you would think the Left would embrace. Certainly, they want to see women be successful. And that's where it really leads into the comments that Marsha made. But I really want to focus on the fact that don't throw us in a little box as women, don't tell us that we can be this or that. We can embrace it all, and we can do it all quite successfully. And that's why I said, "This certainly, folks, is what a mom can do."

Tommy Binion:
Well, I think that's right. And I think it's going to strike a chord with everyone, because we all have moms. Some of us are married to moms, we all know moms, and we know that they are the most capable people we know. If there's a problem we need solving, most of us would call a mom. The basis of this podcast, the reason I'm so excited about it, the reason I think the listeners are to like it so much is that it is a unique perspective that you both bring to these proceedings. It's different than everyone else in the room. And of course, everyone will be watching Judge Barrett, but you'll have a very keen understanding of what it's like for her. In fact, speaking of the word perspective. In her opening statement, she mentioned she was going to bring a different perspective to the bench. Let's play that clip now.

Amy Coney Barrett:
And I might bring a few new perspectives to the bench. As the President noted, when he announced my nomination, I would be the first mother of school-aged children to serve on the Court. And I know that it would make Senators Young and Braun happy to know that I would be the first Justice to join the Court from the Seventh Circuit in 45 years. I would be the only sitting Justice who didn't attend school at Harvard or Yale, but I am confident that Notre Dame could hold its own. And maybe I could even teach them a thing or two about football.

Amy Coney Barrett:
As a final note, Mr. Chairman, I would like to thank the many Americans from all walks of life who have reached out with messages of support over the course of my nomination. I believe in the power of prayer, and it has been uplifting to hear that so many people are praying for me. I look forward to answering the committee's questions over the coming days. And if I am fortunate enough to be confirmed, I pledge to faithfully and impartially discharge my duties to the American people as an Associate Justice of the Supreme Court. Thank you.

Tommy Binion:
I love that portion of her opening statement. And the word perspective perked my ears up, because I knew that we were going to be recording this podcast this week. Talk about the perspective that you'll bring to these hearings that's unique to you.

Sen. Enrst:
Yes, I think this is a great opportunity for Marsha and I to sit through the Committee hearings. Obviously, hear the wonderful qualifications that Judge Amy Coney Barrett is bringing to the Supreme Court, and how important that will be. But for those of us on the Committee, being in that room, being able to share our support with Judge Barrett will be really, really important, bringing our perspectives. As I mentioned in my opening statements as well, I'm not a lawyer and I'm on the Committee. But I am a mother, I am a United States Senator, I'm a combat veteran. I've served in many different capacities through my lifetime. I have had struggles as a working mom. All of these issues that are really important and should be important as well to a member of the Supreme Court.

Sen. Enrst:
So I have a little different perspective maybe than others might. We have some really brilliant lawyers on our Committee. They will obviously focus very much on the Constitution and what her role should be as a Supreme Court Justice. I also want to know that she will uphold the Constitution. But I'm also very interested in her character, that is something that is very, very important to me. And I'm excited just to go through this hearing, question her, really listen to her answers. And again, just knowing that she is a good person of character, she's a brilliant jurist, and that she will be taking all of that to the Supreme Court. And it does make me very pleased to be going through this vetting process.

Sen. Blackburn:
Oh, I [inaudible 00:21:27] Joni on this, because having that difference of perspective is wonderful. And diversity of opinion is wonderful. And Joni and I, I come from the private sector, she has a military background. And we bring those experiences to bear. And that's one of the wonderful things about having women at the table is the circuitous route that they traveled through their careers, and the perspective that they bring. Now, many times the Left will say, "Well, we don't want to have a conservative or a constitutionalist-type voice." Because they don't care to listen to that. But as I've said, having that working mom who has accomplished so much, and has seen success, and is highly regarded, and rated well qualified for the American Bar Association, rated by them for this position.

Sen. Blackburn:
What she has accomplished has, in large part, been accomplished with a baby in her arms, or on her hips, or a child in tow, as she is waiting for a ball game, or a ballet lesson, or picking a child up from school, are on and about. There's a lot of activity and a lot of newness of perspective that can be brought to bear. And I think that is vitally important. And quite frankly, I think our friends on the Left are missing out when they do not want to hear our voices, when they don't want that pro-life, pro-family, pro-religion female voice to speak up, when they don't want a pro-business or a pro-military voice, a voice like Joni's to speak up. They're missing out on getting a fuller discussion of the issues that face our nation.

Tommy Binion:
I think that's absolutely right. And I can't wait to dig into that topic more as this podcast goes along. But tomorrow is when we really get started. That's when senators start asking questions of this nominee. Looking forward to that, you'll both have your first opportunity to ask her questions. What do you hope to learn? And what do you hope the American people come away with after tomorrow?

Sen. Blackburn:
What I am hopeful they're going to see is a thoughtful approach. As questions are asked, and answers are given, and different issues that could come before the court. What her approach is when it comes to originalism. Looking at some of her writings, she has written a hundred different opinions. She has written numerous articles, and has been widely published. So getting that difference of opinion and finding out how she approaches problem solving.

Sen. Enrst:
Agree completely with Marsha there. I do think that it will be interesting to hear how they are focusing on her role as a jurist. We did not hear a lot about that today in their opening statements. They were very much instead focused on things like COVID, like healthcare, other topics. But I really want to know really, are they focusing on a Supreme Court nominee? Do they want to know that she's an originalist? That's what I am looking for. So I hope that we can focus on that some.

Sen. Enrst:
But then also with the dynamics of the room, understanding what is her character, what has developed her into the person that she is today? She is in great standing with many, many of her colleagues across the spectrum. She has been commended by liberals and conservatives for her qualifications. And so, I really want to see if that's something our friends on the Left are willing to discuss with her, or if they end up avoiding that topic completely, and just attacking her on issues. So I'm excited again to be part of this process, and I think it's going to be a wonderful week.

Tommy Binion:
I do as well. And I think that's a great point. We will be listening to see what it is that the Left focuses on. Before we let you go, I want to give the audience a little bit of flavor about what it's like to be a senator. Senator Ernst, you were in Washington today participating in this historic hearing. But over the weekend, your scenery looked a lot different. Is it true you rode your motorcycle across the State of Iowa this weekend?

Sen. Enrst:
Yes it is. I started on what we call our West Coast of Iowa, the Missouri River in Sioux City. And I rode all the way across to Iowa with a group of motorcyclists to Davenport, Iowa on our East Coast, the Mississippi River, and it was a fantastic event. The leaves are changing obviously, and farmers are harvesting out in their field. But what was consistent at all of my stops is that every single stop, people were excited about Amy Coney Barrett. They wanted to know what she was like, what the hearings would entail, and they are so excited to have her as our next Supreme Court Justice.

Tommy Binion:
Wow. Well, Senators, thank you so much. We are looking forward tomorrow. We'll cover tomorrow's hearing. We'll cover the questions that were asked, and of course, we'll take a look together at how Judge Barrett responded.

Speaker 5:
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