#childsafety | What Happened on Day 3 of the Amy Coney Barrett Supreme Court Hearings

Credit…Erin Schaff/The New York Times

Senator Lindsey Graham, Republican of South Carolina and the chairman of the Judiciary Committee, opened Wednesday’s hearing by proclaiming Judge Amy Coney Barrett’s coming confirmation a historic victory for conservative women who he said have faced steeper obstacles in public life than liberal women.

“This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology, and she is going to the court,” Mr. Graham said.

Judge Barrett, President Trump’s Supreme Court nominee, has declined repeatedly during the hearings to answer how she would rule on a challenge to the Roe v. Wade decision that established abortion rights, but has made clear that she opposes abortion rights.

“This hearing, to me, is an opportunity to not punch through a glass ceiling, but a reinforced concrete barrier around conservative women,” Mr. Graham said as the second day of questioning by senators began. “You’re going to shatter that barrier.”

Mr. Graham, who is in a tough re-election campaign, echoed statements on Tuesday from the panel’s two Republican women, both of whom argued that conservative women had been marginalized for their beliefs.

“I have never been more proud of the nominee than I am of you,” he said. “This is history being made, folks.”

Later, Senator Josh Hawley, Republican of Missouri, echoed Mr. Graham’s praise as he concluded his questions, announcing that he would vote for Judge Barrett and saying: “There’s nothing wrong with confirming to the Supreme Court of the United States a devout, Catholic, pro-life Christian.”

Credit…Erin Schaff/The New York Times

Soon after Wednesday’s hearing started, Americans got a brief tutorial on the legal doctrine of severability from Judge Barrett, elicited by Republicans on the panel.

The point was to signal that the Affordable Care Act may not be in peril when the Supreme Court hears arguments next month on the fate of the law, often called Obamacare. Democrats have focused relentlessly on the threat to the law as they have made their case against Judge Barrett, who they warn would join a 6-3 conservative majority to strike it down.

Even as Republican state officials and the Trump administration are asking the Supreme Court to invalidate the entire Affordable Care Act based on what they say is a flaw in a single provision of the sprawling law, Mr. Graham asked Judge Barrett to describe severability.

She said the doctrine generally requires that courts strike down a single provision of a law and retain the balance of it.

“The presumption,” Judge Barrett said, “is always in favor of severability.”

That is the key issue in next month’s case. After Congress zeroed out the penalty for not obtaining insurance in the so-called individual mandate, Republican state officials argued that the mandate was now unconstitutional. They added, more significantly, that this meant the entire law must fall, including protections for pre-existing conditions.

Judge Barrett did not say how she would vote in the pending case, but the general tenor of her summary suggested that she was skeptical of the maximalist arguments made by Republican officials.

Her general statement was consistent with an opinion in July from Justice Brett M. Kavanaugh, Mr. Trump’s last nominee.

“Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute,” Justice Kavanaugh wrote.

Credit…Hilary Swift for The New York Times

Senator Amy Klobuchar, Democrat of Minnesota, expressed concern that if confirmed, Judge Barrett would be the third justice on the high court who worked for Republicans during the Bush v. Gore case about the disputed 2000 election outcome.

“Few understand we are operating in a moment where the president is undermining vote by mail,” Ms. Klobuchar said. “Many argue that Bush v. Gore hurt the court’s legitimacy.”

Judge Barrett said that she couldn’t recall her specific work on the case. “I did work on Bush v. Gore on behalf of the Republican side,” she said Wednesday. “To be fully honest, I can’t remember exactly what piece of the case it was.”

Ms. Klobuchar noted that Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh also advised on the matter for President George W. Bush.

After her clerkship with Justice Scalia ended in 1999, Judge Barrett worked as a lawyer for the boutique Washington firm Miller, Cassidy, Larroca & Lewin, which merged with another firm, Baker Botts, in 2001. The firm represented Mr. Bush in the election dispute, and Judge Barrett provided “research and briefing assistance” on the matter as an associate, according to information she first provided the Senate in 2017, as she was being considered for her appeals court seat.

“I worked on the case on location in Florida for about a week at the outset of the litigation,” Judge Barrett wrote in the questionnaire she submitted to the Senate Judiciary Committee. She noted that she had worked with Stuart Levey, a former partner at the firm, while the case was in Florida courts, and that she had not continued working on the matter after returning to Washington.

In a 5-4 decision, the Supreme Court ultimately ordered an end to the Florida recount, delivering a victory to Mr. Bush. Mr. Bush would go on to appoint two lawyers who had helped that effort — the future Justices Roberts and Kavanaugh — to the federal bench. Mr. Bush later nominated Justice Roberts to the Supreme Court, while President Trump nominated Justice Gorsuch in 2017.

During Wednesday’s hearing, Ms. Klobuchar asked the judge if she thought that pattern of representation among nominees put forward by Republicans was “a coincidence,” and suggested it would be inappropriate to potentially have three justices who had played a part in that litigation considering a possible case relating to the 2020 election.

“Asking whether something would undermine the legitimacy of the court or not seems to be trying to elicit a question about whether it would be appropriate for justices who participated in that litigation to sit on the case rather than recuse, and I went down that road yesterday,” Judge Barrett said. On Tuesday, said she would consider recusing herself from an election-related case, but made no commitment to do so on that matter or in a challenge to the Affordable Care Act.

“The reason I asked about that is that this would be unprecedented,” Ms. Klobuchar said. “Right now we are in unprecedented times where we have a president who refuses to commit to a peaceful transition of power, working to undermine the integrity of this election.”

At last month’s presidential debate, Mr. Trump said he planned to look to the Supreme Court to settle a potential election dispute. “I think I’m counting on them to look at the ballots, definitely,” he said.

Judge Barrett, under questioning from Senator Kamala Harris, the Democratic nominee for vice president, said Wednesday that human-caused climate change is “a very contentious matter of public debate,” a position starkly at odds with the established scientific consensus.

Climate change proved to be a surprisingly contentious subject, both on Tuesday and Wednesday. And on both days, Judge Barrett used language that echoed Republican political talking points.

On Wednesday, Ms. Harris asked Judge Barrett about a series of scientific matters: whether cigarettes cause cancer, whether the coronavirus is infectious, and then whether “climate change is happening and threatening the air we breathe and the water that we drink.”

Judge Barrett responded, 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.” Then she accused Ms. Harris of “trying to analogize that to eliciting an opinion from me that is on a very contentious matter of public debate,” climate change.

“I will not do that,” Judge Barret said. “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.”

The science of human-caused climate change is well established.

During Tuesday’s confirmation hearing, Senator John Kennedy, Republican of Louisiana, also asked Judge Barrett about her views on climate change. “You know, I’m certainly not a scientist,” she said, and added that “I have read things about climate change — I would not say I have firm views on it.”

Such language has often been used by Republican lawmakers wrestling with their party’s longstanding disavowal of climate science. While party stalwarts used to simply deny that human activity is causing the planet to warm dangerously, they increasingly have taken the more neutral “I’m not a scientist” position.

Judge Barrett’s answer is “a dodge that fails to acknowledge the overwhelming scientific consensus that humans are causing the planet to warm,” said Ann Carlson, a faculty director of the Emmett Institute on Climate Change and the Environment at U.C.L.A. School of Law.

She continued, “Judge Barrett is a smart, highly educated person who has spent most of her career in a job that rewards knowledge and intellect. For her not to have firm views on climate change is almost unbelievable.”

The evidence that the planet is warming, and that warming is having destructive effects, has only grown more pressing as more and more Americans have come to understand the links between extreme weather in their own lives — including more destructive hurricanes and wildfires. The issue is increasingly important to voters, and has become a prominent part of the presidential race; President Trump has continued to scoff at the evidence underlying climate change, even saying recently that “I don’t think science knows, actually,” while Joseph R. Biden Jr. promises an aggressive $2 trillion plan to counter global warming.

It is also important to the Supreme Court. In past decisions, the justices have accepted that human-caused climate change is occurring and determined that the Environmental Protection Agency can regulate greenhouse gases in the case Massachusetts v. E.P.A., but a more conservative Supreme Court might revisit the issue.

To Professor Carlson, Judge Barrett’s response “seems like a pretty strong signal to those in the know that she is skeptical of regulating greenhouse gases.”

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Judge Amy Coney Barrett Gives Advice to Young Women

During the third day of hearings on Capitol Hill, Sen. Joni Ernst, Republican of Iowa, asked Judge Amy Coney Barrett if she had any advice for young women. She advised them to “be confident” and to “know what you want.”

“There may be others on this committee that disagree. I would share with you that there are thousands upon thousands of young women out there that see the role that you’ve set. And I went through all of those descriptive words that my fellow members have shared through the course of these hearings. But those thousands and thousands of young women that see you as someone they can aspire to be. And I know that she is in a very diverse group of friends. They are racially different. They are religiously different, that they’re all young warriors, all of these young women, but they are very excited to have you in front of us. I would say that many of her friends are not Republicans. They would affiliate more with Democrats as well. But they do see you as someone they can aspire to be. So thank you so much for setting such a great example for women of all different thought processes, and what words of encouragement would you like to share with the young women like my daughter Libby?” “I think I would say to be confident, to see what she wants, to have a plan. One thing I’ve often told my own daughters is that you shouldn’t let life just happen to you or sweep you along. You should identify what your objectives are and identify the kind of person that you want to be, and then make deliberate decisions to make that happen. My dad used to tell us, not to make a decision is to make a decision. So I would say make decisions, be confident, know what you want and go get it.”

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During the third day of hearings on Capitol Hill, Sen. Joni Ernst, Republican of Iowa, asked Judge Amy Coney Barrett if she had any advice for young women. She advised them to “be confident” and to “know what you want.”CreditCredit…Anna Moneymaker for The New York Times

Near the end of a third day of hearings on Capitol Hill, Senator Joni Ernst, Republican of Iowa, asked Judge Barrett if she had advice for young women.

Judge Barrett said she did, and passed on some guidance that she said her father had told her.

“One thing I have often told my own daughters is that you should not let life just happen to you or lead you along,” Judge Barrett said. “You should identify where your objectives are and identify the type of person you want to be and make deliberate decisions to make that happen. My dad used to tell us not to make a decision is to make a decision.”

“Make decisions. Be confident. Know what you want. And go get it,” she concluded.

Ms. Ernst, who is a facing a tough re-election race in Iowa, told Judge Barrett many young women are rooting for her, including Ms. Ernst’s daughter, Libby, who is a student at West Point.

“I would share with you that there are thousands upon thousands of young women out there that see the role that you set,” Ms. Ernst said, adding that they see the judge as “someone they can aspire to be.”

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‘Good Old Days of Segregation’ Remark Was Sarcastic, Graham Says

After invoking the “good old days of segregation” while questioning Judge Amy Coney Barrett, Senator Lindsey Graham responded to criticism by saying it was made “with deep sarcasm.”

“And one of the reasons you can say with confidence that you think Brown v. Board of Education is a superprecedent is that you’re not aware of any effort to go back to the good old days of segregation by a legislative body. Is that correct?” “That is correct.” “It was with deep sarcasm that I suggested that some legislative body would want to yearn for the good old days of segregation as — the point that I’m trying to make, there is nobody in America in the legislative arena wanting to take us back to that dark period in American history. It blows my mind that any rational person could believe that about me. This is not a game we’re playing here with the people of South Carolina. There are plenty of differences between my opponent and myself, manufacturing a scenario that Lindsey Graham wants — go back to the days of segregation is not worthy of the times in which we live. It is not worthy of an assault on me. We have plenty of differences with Mr Harrison. I want to assure the people of South Carolina that statement was made with dripping sarcasm.”

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After invoking the “good old days of segregation” while questioning Judge Amy Coney Barrett, Senator Lindsey Graham responded to criticism by saying it was made “with deep sarcasm.”CreditCredit…Erin Schaff/The New York Times

Mr. Graham, who is fighting off an increasingly steep re-election challenge from a Black Democrat in South Carolina, drew criticism on Wednesday after he invoked the “good old days of segregation” while questioning Judge Barrett.

Asking the judge about various Supreme Court precedents as he opened the third day of hearings, Mr. Graham appeared to be trying to drive home the point that there was no longer any meaningful push in America to challenge the 1954 Brown v. Board of Education decision, which held that school segregation was unconstitutional.

“One of the reasons you can say with confidence that you think Brown v. Board of Education is a super precedent is you are not aware of any effort to go back to the good old days of segregation via legislative body. Is that correct?” he asked. Judge Barrett answered in the affirmative.

As Judge Barrett has done, Mr. Graham contrasted that decision to precedents like the one in Roe v. Wade, which enshrined a federal right to an abortion, and which has been a frequent target of legal challenges stemming from state laws rolling back abortion rights.

But the chairman’s comment drew a swift rebuke from his Democratic rival, Jaime Harrison, who shared a clip of Mr. Graham’s remark on his Twitter account, sending it bouncing across social media.

“The good old days for who, Senator?” Mr. Harrison asked. “It’s 2020, not 1920. Act like it.”

During a break in the hearing, Mr. Graham said he had been misunderstood and rebuked his opponent for the criticism. His comments were “dripping with sarcasm,” Mr. Graham said, referring to the era of segregation as “dark days.”

“It blows my mind that any rational person could believe that about me,” he added.

The comment came just a few days after Mr. Graham was roundly criticized for saying during a campaign forum in South Carolina that Black people “can go anywhere in this state” as long as they were “conservative, not liberal.”

He had been talking about his friendship with the state’s other Republican senator, Tim Scott, who is a Black man.

Credit…Erin Schaff/The New York Times

President Trump’s attacks on the rule of law and the judiciary hung over the proceedings, as Judge Barrett repeatedly parried questions from Democrats about how she viewed matters of presidential power, including whether a president could defy a Supreme Court ruling or pardon himself.

Asked by Senator Patrick J. Leahy of Vermont whether courts had the power to enforce their rulings if a president disobeyed, the judge would not give a definite answer.

While Judge Barrett said that “no man is above the law,” she added, “as a matter of law, the Supreme Court may have the final word, but it lacks control about what happens after that.”

Mr. Leahy tried again, asking whether a president who refused to follow a court ruling would pose a threat to the constitutional system of checks and balances.

She would not directly answer.

“As I said, the Supreme Court cannot control whether or not the president obeys,” she said, noting that Abraham Lincoln had once disobeyed a lower court order during the Civil War.

Judge Barrett was similarly unwilling to engage Mr. Leahy on whether a president had an “absolute right” to pardon himself, as Mr. Trump has claimed that he does.

“That question may or may not arise, but that is one that calls for legal analysis of what the scope of the pardon power is,” she said, adding that she could not offer an opinion on a question that she could be called upon to rule on.

A frustrated Mr. Leahy asked one more, this time focusing on the Constitution’s emoluments clause, which is meant to limit foreign influence on the president by prohibiting him from accepting foreign gifts.

Citing news reports, Mr. Leahy asked if the tens of millions of dollars in business done by Mr. Trump’s hotels and clubs with foreign entities fell under that clause.

Again, no answer from Judge Barrett.

“As a matter being litigated, it’s very clear that is one I can’t express an opinion on, because it could come before me,” she said.

Credit…Anna Moneymaker for The New York Times

Under pressure from Senator Cory Booker, Democrat of New Jersey, Judge Barrett repeatedly refused Wednesday to condemn the Trump administration’s actions that separated immigrant children from their families on America’s southern border with Mexico.

Mr. Booker asked Judge Barrett whether she believed it is “wrong to separate children from their parents to deter immigrants from coming to the United States.”

Judge Barrett, who sided with the Trump administration in an immigration case in June, said she could not engage in discussion of hotly debated topics.

“Senator Booker,” the judge replied, “that has been a matter of policy debate and obviously that’s a matter of hot political debate in which I cannot express a view or be drawn into as a judge.”

Mr. Booker then tried to appeal to Judge Barrett’s sense of morality, not her legal analysis.

“So, I respect that a lot, but I think the underlying question is actually not hotly debated and just maybe I will ask it one more time: Do you think it is wrong to separate their child from the parent not for the safety of the child or parent but to send a message?” Mr. Booker asked. “As a human being, do you believe that that is wrong?”

Once again, Judge Barrett, who is President Trump’s nominee to the Supreme Court, declined to say that the practice was wrong.

“Senator, I think you’re trying to engage me on the administration’s border separation policies, and I cannot express a view on that,” Judge Barrett said.

The Senate Judiciary Committee on Thursday will convene an outside panel of experts to argue for or against Judge Barrett’s confirmation to the Supreme Court, a debate that will take most of the fourth — and likely final — day of high court confirmation hearings.

Democrats have called four witnesses to burnish their argument that Judge Barrett’s confirmation to the Supreme Court before Nov. 3 will lead to the Affordable Care Act being overturned, and threaten existing reproductive and civil rights.

Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, is expected to speak about voting rights and other civil rights established by both the Constitution and federal law. Crystal Good will speak about reproductive rights; she had an abortion after obtaining a judicial bypass, a legal order that allows teenagers to have an abortion without having to tell parental guardians.

Dr. Farhan Bhatti, the chief executive of a Michigan nonprofit clinic, and Stacy Staggs, the mother of 7-year-old twins with pre-existing medical conditions and an advocate for families with complex medical needs, are expected to speak to the challenges they would see and experience if the Affordable Care Act is overturned.

Republicans will call Thomas Griffith, a retired judge from the Court of Appeals in Washington, who recently wrote an opinion piece defending Judge Barrett’s ability to separate her personal faith from her judicial rulings.

They will also call Saikrishna B. Prakash, a conservative jurist and professor of law at the University of Virginia School of Law, Amanda Rauh-Bieri, who clerked for Judge Barrett and now works as an associate at Miller Canfield, a law firm in Michigan, and Laura Wolk, who was Judge Barrett’s student at Notre Dame and went on to become the first blind woman to clerk at the Supreme Court.

The confirmation hearing process will conclude afterward. Under the rules, Democrats will insist the committee wait a week to vote on the nomination, postponing the vote to approve her nomination in the committee until Oct. 22.

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Highlights From Day 2 of Judge Amy Coney Barrett’s Hearing

On Tuesday, senators began their questioning of Judge Amy Coney Barrett during her Supreme Court confirmation hearing.

“Can you hold up what you’ve been referring to in answering our questions? Is there anything on it?” “That letterhead that says United States Senate.” “In English? OK, so in English that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it. But I want to be careful to say that if I’m confirmed, you would not be getting Justice Scalia, you would be getting Justice Barrett.” “Justice Ginsburg, with her characteristic pithiness, used this to describe how a nominee should comport herself at a hearing: no hints, no previews, no forecasts. That had been the practice of nominees before her. But everybody calls it the ‘Ginsburg Rule’ because she stated it so concisely, and it’s been the practice of every nominee since.” “Do you agree that I.V.F. is tantamount to manslaughter?” “Senator, the statement that I signed, as you said, simply said, we — I signed it on the way out of church. It was consistent with the views of my church. And it simply said, we support the right to life from conception to natural death. It took no position on I.V.F. So really, the issue in the case is this doctrine of severability and that’s not something that I’ve ever talked about with respect to the Affordable Care Act. Honestly, I haven’t written anything about severability that I know of at all. My children to this point in their lives have had the benefit of growing up in a cocoon, where they have not yet experienced hatred or violence. Giving broader statements or making broader diagnoses about the problem of racism is kind of beyond what I’m capable of doing as a judge. I have no agenda, and I do want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference. You know, like racism, I think discrimination is abhorrent. On the questions of law, however, I just — because I’m a sitting judge and because you can’t answer questions without going through the judicial process — can’t give answers to those very specific questions.” “Given what President Trump said, given the rushed context of this confirmation, will you commit to recusing yourself from any case arising from a dispute in the presidential election results three weeks from now?” “I would consider it — let’s see, I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people. So that would be on the question of actual bias, and you asked about the appearance of bias.”

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On Tuesday, senators began their questioning of Judge Amy Coney Barrett during her Supreme Court confirmation hearing.CreditCredit…Erin Schaff/The New York Times




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