The tables have turned. Amy Coney Barrett, President Donald Trump’s Supreme Court nominee, continued to impress Americans on the third day of her confirmation hearing. Even Sen. Dianne Feinstein (D-Calif.), who notoriously attacked Barrett for the “dogma” living “loudly” within her in 2017, said, “I’m really impressed.”
Barrett also deftly responded to Sen. Kamala Harris (D-Calif.), the Democratic nominee for vice president, when she tried to trap the nominee in questions about climate change.
Here are some of the highlights from Wednesday.
1. Amy Coney Barrett schools Durbin on originalism
Sen. Dick Durbin (D-Ill.) tried to accuse Amy Coney Barrett of rejecting originalism when she refused to answer a hypothetical question about a president’s actions regarding race in voting.
“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?” Durbin pressed.
“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 in voting,” Barrett responded. “I’m not going to answer hypotheticals.”
Durbin attempted to weaponize originalism against an originalist.
“It strains originalism if the clear wording of the Constitution establishes a right and you will not acknowledge it,” the senator charged.
“Well, senator, it would strain the canons of conduct, which don’t permit me to offer off-the-cuff reactions or any opinions outside of the judicial decision-making process. It would strain Article III, which prevents me from deciding legal issues outside the context of cases and controversies, and as Justice Ginsburg said, it would display disregard for the whole judicial process,” Amy Coney Barrett responded.
I hope Durbin has some ointment for that burn. As George Washington University law professor Jonathan Turley put it, “Barrett just landed a haymaker.”
2. Amy Coney Barrett impresses Feinstein
During the hearing, Barrett defined severability — the key issue in the case involving the Affordable Care Act, a.k.a. Obamacare — in an effective way that impressed Feinstein.
“It’s designed to effectuate your intent, but you know, severability is designed to say, ‘Well, would Congress still want the statute to stand even with this provision gone? Would Congress have still passed the same statute without it? So, I think, insofar as it tries to effectuate what Congress would have wanted, it’s the Court and Congress working hand-in-hand.”
“Thank you. That’s quite a definition. I’m really impressed, thank you,” Feinstein responded.
3. Amy Coney Barrett evades the Kamala trap
Kamala Harris tried to catch Barrett in a trap, comparing the debated position that human beings are causing catastrophic climate change to very clear matters of science such as the fact that the coronavirus disease COVID-19 is infectious and that smoking causes cancer. Barrett sensed a trap and she avoided it deftly.
“Do you accept that COVID-19 is infectious?” Harris asked.
“Um, I think yes, I do accept that COVID-19 is infectious, that that’s something of which I feel like we could say you take judicial notice of. It’s an obvious fact, yes,” Barrett responded.
“Do you accept that smoking causes cancer?” Harris pressed.
“I’m not sure exactly where you’re going with this…” Barrett responded.
Harris cut her off. “The question is what it is, you can answer it… yes or no.”
“Senator Harris, yes, every package of cigarettes warns that smoking causes cancer,” Barrett responded.
Then the trap. “And do you believe that climate change is happening and is threatening the air we breathe and the water we drink?”
“Senator, again, I was wondering where you were going with that. You have asked me a series of questions that are completely uncontroversial like whether COVID-19 is infectious, whether smoking causes cancer, and then trying to analogize that to eliciting an opinion from me that is on a very contentious matter of public debate,” Barrett responded.
“And I will not do that. I will not express a view on a matter of public policy, especially one that is politically controversial, because that’s inconsistent with the judicial role, as I’ve explained,” the nominee added.
Some commentators have called Amy Coney Barrett unflappable. That seems extremely apt for this excellent nominee.