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Chairman Lindsey Graham has gaveled the Senate Judiciary Committee into session. Each senator gets 30 min for the 1st round of questioning. There are 22 senators on SJC (12 GOP/10 Dem), so that means 11 hours minimum if they use all of their time. Every senator may not go today.
Graham asks Barrett whether she would be a female Justice Scalia and about her beliefs on Originalism. She wrote about both in the same essay for Notre Dame Law School in 2017 on whether stare decisis is compatible with Originalism. https://scholarship.law.nd.edu/ndlr/vol92/iss5/2/
Graham asks Barrett about precedent (called stare decisis) & substantive due process. She says SCOTUS has grounded certain rights not explicit in the Constitution, like the right to abortion, in substantive due process. She wrote on both topics in 2003. https://scholarship.law.nd.edu/law_faculty_scholarship/450/
Graham asks whether Barrett will recuse from the Obamacare case that will come before the court on Nov. 10. She cites Ginsburg & says she would have to consult with her fellow justices before deciding. Read more about the case including all of the briefs: https://www.scotusblog.com/case-files/cases/california-v-texas/
Sen. Feinstein presses Barrett repeatedly on whether Roe v. Wade was wrongly decided. Barrett refuses to answer.
Barrett asked about her dissent in Kanter v. Barr—a 2A case about the right to bear arms for people who have been convicted of a felony. The 7th Cir said felony dispossession laws are constitutional. Barrett disagreed. Here's her opinion: https://casetext.com/case/kanter-v-barr
Barrett refuses to say whether the Constitution or federal law gives the president the authority to "unilaterally delay" a presidential election.
Barrett cites the "Ginsburg Rule" in her refusal to answer hypotheticals about cases. In quoting the late justice and her "characteristic pithiness": "No hints. No previews. No forecasts."
All nominees since Ginsburg have followed the Ginsburg Rule to refuse to answer such hypos
All nominees since Ginsburg have followed the Ginsburg Rule to refuse to answer such hypos
Grassley is asking Barrett about a case on the First Step Act and mandatory minimum sentences for certain firearm offenses. Barrett dissented from a majority of her colleagues on the 7th Circuit in the interpretation of the statute.
Here's the opinion: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D09-15/C:19-2092:J:Ripple:aut:T:fnOp:N:2579970:S:0
Here's the opinion: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D09-15/C:19-2092:J:Ripple:aut:T:fnOp:N:2579970:S:0
Leahy asks Barrett if she will commit to recusing herself from any dispute arising from the 2020 election. She doesn't answer directly, instead saying "I have made no pre-commitments to anyone about how I would decide a case."
When pressed by Leahy about a potential election-related case and the ACA, Barrett says, “I think it would be a complete violation of the independence of the judiciary for anyone to put a justice on the court as a means of obtaining a particular result.”
Leahy asking Barrett about comments she made in 2016 when President Obama nominated Judge Merrick Garland to fill Justice Scalia's seat. Here's the interview where Barrett commented on the Merrick Garland nomination: https://www.cbsnews.com/video/fight-over-scalias-supreme-court-seat-gets-ugly/#x
Fact check: Sen. Cornyn invokes Obergefell v. Hodges and says part of that decision struck down the federal Defense of Marriage Act. Barrett hesitates a moment before saying, yes, she believes that's true.
It's not. It was U.S. v. Windsor, not Obergefell, that struck down DOMA.
It's not. It was U.S. v. Windsor, not Obergefell, that struck down DOMA.
“I assure you I am not hostile to the ACA. I am not hostile to any statute that you pass,” Barrett says in response to Sen. Durbin questioning her about her previous comments criticizing Chief Justice Roberts’ reasoning in past ACA cases.
Now we break. Back at 12:45.
In the meantime, visit our Barrett nomination page, which has a ton of helpful info on her nomination process, writings, speeches, opinions, and nomination materials. We're continuously updating the page with new resources. https://www.scotusblog.com/category/special-features/nomination-of-amy-coney-barrett-to-the-supreme-court/
In the meantime, visit our Barrett nomination page, which has a ton of helpful info on her nomination process, writings, speeches, opinions, and nomination materials. We're continuously updating the page with new resources. https://www.scotusblog.com/category/special-features/nomination-of-amy-coney-barrett-to-the-supreme-court/
The afternoon session opens with Sens. Whitehouse (D-R.I.) and Cruz (R-Tex.), both of whom deliver long, impassioned speeches (including trading barbs about the influence of "dark money" in the Supreme Court confirmation process) but ask Barrett virtually no questions.
Sen. Cruz now talking at length about religious liberty. The court has decided several major religious-rights cases recently. Here's our symposium from over the summer on the Roberts court and the religion clauses: https://www.scotusblog.com/category/special-features/symposium-on-the-roberts-court-and-the-religion-clauses/
If confirmed, Barrett may be on the court for the next big religious rights case: Fulton v. Philadelphia, which involves religious exemptions from nondiscrimination laws. So far, that case has gotten far less attention in these hearings than the ACA case. https://www.scotusblog.com/case-files/cases/fulton-v-city-of-philadelphia-pennsylvania/
