Sen. Amy Klobuchar began the week by telling Americans that no cross-examination, speech or bluster would change Amy Coney Barrett’s nomination to the Supreme Court. Instead, she said, it’s up to you.
“Let me tell you a political secret,” Klobuchar said during her opening statement in Barrett’s Senate Judiciary Committee hearing. “I doubt that it will be a brilliant cross-examination that’s going to change this judge’s trajectory this week. No. It is you. It is you calling Republican senators and telling them enough is enough, telling them that it is personal, telling them they have their priorities wrong. So do it.”
Sitting on the committee, Klobuchar has now questioned three Trump Supreme Court appointees: Neil Gorsuch, who was appointed to fill a seat after the death of Justice Antonin Scalia; Brett Kavanaugh, who replaced Justice Anthony Kennedy; and now Barrett.
But Barret’s hearing is different: Republicans have rushed to nominate Barrett to fill the seat of Justice Ruth Bader Ginsburg, who died in September. Throwing aside the standards that they themselves set during the Obama administration, when Republicans like Senate Judiciary Committee Chair Lindsay Graham said they would not appoint a Supreme Court Justice during an election year, Republicans aim to appoint Barrett right before the 2020 election is over in November.
“I think this hearing is a sham,” Klobuchar said. “I think it shows real messed up priorities from the Republican party. But I am here to do my job, to tell the truth.”
Klobuchar spent three days methodically trying to prosecute Barrett’s judicial philosophy and how she would act as a Supreme Court Justice when it comes to healthcare and voting rights. And Barrett spent three days telling Klobuchar that she couldn’t the answer questions, with statements like: “I think that is a question for the political branches” or “I can’t express a view on that, as I’ve said, because it would be inconsistent with the judicial role” or “Justice Ginsburg herself gave the most famous articulation of the principle that constrains me from doing so, which is no hints, forecasts, or previews.”
The Affordable Care Act
Klobuchar’s skepticism about Republicans’ approach to judicial nominations is a stark departure from her prior years of reaching across the aisle. In the 115th Congress (2017-18), Klobuchar voted for a number of Trump appointed judges to the lower courts. She has since changed her stance, voting down most of them along with her Democratic colleagues in the most recent 116th Congress.
In her opening statement, Klobuchar said the hearing was critical to all Americans, and that the nomination of Barrett cannot be divorced from the election that we are in. But she also made it personal, pointing to how president Donald Trump lied about the dangers of COVID-19 for months.
“It’s personal to me because my husband got COVID early on,” Klobuchar said. “He ended up in the hospital for a week on oxygen with severe pneumonia. And months after he got it, I find out the president knew it was airborne, but he didn’t tell us. We were cleaning off every surface in our house, and my husband got it anyway. We didn’t know.”
Her father contracted COVID-19, too. “I thought it was going to be the last time that I saw him,” she said. “He miraculously survived, but Marny Xiong? She didn’t. Marny was a rising star, the chairwoman of the St. Paul School Board, and just 31 years when COVID took her life.”
Klobuchar also questioned Barrett about the Affordable Care Act, which the Trump administration is currently trying to end in Federal court. Barrett, who has expressed skepticism about the constitutionality of the Affordable Care Act, would be another deciding vote in the case, which has now reached the Supreme Court.
“The truth is, America, that this judicial nominee has made her view so clear,” Klobuchar said. “And this president is trying to put her in a position of power to make decisions about your lives. The Affordable Care Act protects you from getting kicked off of your insurance. That’s on the line.”
Klobuchar pressed Barrett on the ACA, asking several times a question in the same vein. “Did you have a general understanding that one of the president’s campaign promises is to repeal the Affordable Care Act?,” Klobuchar asked.
“You’re suggesting that I have animus and that I’ve cut a deal with the president,” Barrett said. “And I’ve made very clear that that hasn’t happened.”
Klobuchar pointed to a 2015 NPR interview that Barrett gave on the Affordable Care Act. “You acknowledge that the result of people being able to keep their subsidies under the Affordable Care Act would help millions of Americans. Yet you praise the dissent by Justice Scalia, saying the dissent had ‘the better of the legal argument,’” she said. “Is that correct?”
“I did say that, yes,” said Barrett.
“Okay. So then would you have ruled the same way and voted with Justice Scalia?”
“Well, Senator Klobuchar, one of the plus sides or the upsides of being an academic is that you can speak for yourself, that a professor professes and can opine,” Barrett said referring to her time as a professor at Notre Dame Law School. “So it’s difficult for me to say how I would have decided that case, if I had to go through the whole process of judicial decision-making.”
Klobuchar has spent a substantial portion of her time and energy in the Senate attempting to expand voting rights, most recently pushing for billions of dollars to expand vote-by-mail. The Minnesota Senior Senator pushed Barrett when it came to voting rights for formerly incarcerated Americans, as well as more broadly.
Citing one of Barrett’s dissents as a judge, Klobuchar pointed out that Barrett had written, historically, that voting rights were only afforded to “virtuous citizens.”
“How would you define the word virtuous?”, Klobuchar asked. “Because it doesn’t appear in the Constitution. I’m just trying to know what that means, because we’re living at a time where a lot of people are having their voting rights taken away from them. So what’s virtuous?”
“Okay. Well, senator, I want to be clear that that is not in the opinion designed to denigrate the right to vote, which is fundamental … The virtuous citizenry idea is a historical and jurisprudential one,” Barrett said. “It certainly does not mean that I think that anybody gets a measure of virtue and whether they’re good or not, and whether they’re allowed to vote. That’s not what I said.”
Moving on to voting rights overall, Klobuchar, citing Justice Ginsburg’s writing in the landmark voting rights case Shelby County V. Holder, asked Barrett: “Do you agree with Justice Ginsburg’s conclusion that the Constitution clearly empowers Congress to protect the right to vote?”
And again, Barrett wouldn’t say. “Well, Senator, that would be eliciting an opinion from me on whether the dissent or the majority was right in Shelby County, and I can’t express a view on that, as I’ve said, because it would be inconsistent with the judicial role.”
Klobuchar continued to ask questions about voting rights, finally shifting to a question about the news that a private security company is recruiting armed guards to patrol polling places: “Judge Barrett, under federal law, is it illegal to intimidate voters at the polls?”
“Sen. Klobuchar, I can’t characterize the facts in a hypothetical situation and I can’t apply the law to a hypothetical set of facts,” Barrett said.
Before the election
If appointed, Barrett would be the third Supreme Court Justice to have worked on the Republican side of Bush V. Gore, the Supreme Court case that decided the 2000 election, which Klobuchar pointed out. “I think the public has a right to know that three of these justices have worked on the Republican side on a major issue related to a presidential election,” she said.
On Thursday morning, the Senate Judiciary Committee voted to consider Barrett for the nomination to the court. The committee is set to vote on Barrett’s nomination on October 22. If confirmed in Committee, the vote will be sent to the full Senate.
Barrett’s confirmation to the Court would result in a 6-3 conservative majority.