Barrett Says She Isn't 'A Pawn' — But Won't Commit To Recuse From An Election Case : The NPR Politics Podcast Read All Of Our Coverage

Amy Coney Barrett didn't give direct answers to many questions, as expected. Like past nominees, she refused to deal in hypotheticals. But Democrats looked to her past writing and scholarship to make the case that she is hostile to abortion access and healthcare access. Republicans said she is qualified to serve.

This episode: White House correspondent Tamara Keith, congressional reporter Claudia Grisales, and national justice correspondent Carrie Johnson.

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Barrett Says She Isn't 'A Pawn' — But Won't Commit To Recuse From An Election Case

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Barrett Says She Isn't 'A Pawn' — But Won't Commit To Recuse From An Election Case

Barrett Says She Isn't 'A Pawn' — But Won't Commit To Recuse From An Election Case

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  • Transcript

TAMARA KEITH, HOST:

Hey, everybody. It's Tamara Keith. And before we get started with the show, I have a request. The NPR POLITICS PODCAST will be right here with you through Election Day and beyond, providing all the latest reporting and analysis you need to stay informed about what's happening. And the reason we can do that is because of your financial support. We know that many people are struggling right now, but if you are in a position to do so, please take a moment and donate to your local NPR station. You'll be funding the reporting you get from this podcast and so much more. Just go to donate.npr.org/politics to get started.

AMY: This is Amy (ph) in Indianapolis. I'm about to welcome students back to our school building for the first time since March. This podcast was recorded at...

KEITH: 7:40 p.m. on Tuesday, the 13 of October.

AMY: Things may have changed by the time you listen to it, like there'll be a couple hundred kids in this building. Here's the show.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

KEITH: Hey there. It's the NPR POLITICS PODCAST. I'm Tamara Keith. I cover the White House.

CLAUDIA GRISALES, BYLINE: I'm Claudia Grisales. I cover Congress.

CARRIE JOHNSON, BYLINE: And I'm Carrie Johnson. I cover the Justice Department.

(SOUNDBITE OF ARCHIVED RECORDING)

LINDSEY GRAHAM: Good morning, everyone. Welcome back.

KEITH: And this second day of confirmation hearings for Amy Coney Barrett have not quite concluded, but we're taping the podcast anyway. They're almost done. This was the first of two rounds of questioning. The senators each had 30 minutes to question the nominee. Some gave 30-minute monologues. But let's start right at the beginning with the committee chairman, Lindsey Graham, who asked Barrett to talk about her judicial independence, even from her mentor, the late Justice Antonin Scalia.

(SOUNDBITE OF ARCHIVED RECORDING)

AMY CONEY BARRETT: If I'm confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett. And that's so because originalists don't always agree and neither do textualists.

KEITH: Let's start with some definitions.

JOHNSON: Sure. So Judge Barrett is essentially saying she is her own woman and her own judge, but she does follow some philosophies. One is originalism. That's the idea that the Constitution is a law and a document and that what is in that law and what was intended at the time in meanings of words back in that era are how a judge would go about trying to figure out what the Constitution means. And textualism is closely related, but not quite the same thing. Textualism has to do with statutes and the words in the law, as opposed to veering into a whole bunch of questions about what members of Congress or state houses intended when they were drafting the law.

KEITH: OK. Let's do one more definition, Claudia, because this is going to be important. I feel like it came up about a thousand times today.

(SOUNDBITE OF ARCHIVED RECORDING)

BARRETT: But I'm not going to express a view on whether I agree or disagree with Justice Scalia for the same reasons that I've been giving. You know, 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.

KEITH: What is this so-called Ginsburg rule?

GRISALES: Yes, we did hear that on repeat on a loop all day long, it seemed, from Barrett. This is basically her signaling that she's not going to give a preview as to how she might rule in the future, just showing independence in future judicial rulings, should she be confirmed to the Supreme Court. And so this is something that she used to dodge quite a few questions today. And I imagine this is something we could hear more of in the coming days as we hear senators continue to question Barrett.

JOHNSON: You know, one interesting thing about that, though, is Justice Ginsburg did say that about no hints, no previews, no forecasts. But then she went on later in her hearing to talk about how she felt and thought about that landmark abortion rights precedent, Roe v. Wade. We did not get the same hints today or previews from Judge Amy Coney Barrett, though.

KEITH: Yeah, and we'll get to what she said about Roe a bit later. But let's start with something that is pressing and present right now. In the questioning, she was asked whether she would recuse herself from any election-related litigation. As you might remember, President Trump had said he needed that ninth justice in case the election went to the Supreme Court. And like on most topics, she refused to commit to specifics.

(SOUNDBITE OF ARCHIVED RECORDING)

BARRETT: I haven't even written anything that I would think anybody could reasonably say, oh, this is how she might resolve an election dispute. And 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.

JOHNSON: It was almost as passionate as we've seen from this nominee, this idea that she is not going to be used as a pawn, that there were no secret deals with the White House or Republicans in the Senate over this. But Democrats really pushed her hard. Democrats like Patrick Leahy of Vermont and Richard Blumenthal of Connecticut basically said the president, by making these statements about needing nine justices on the bench to decide election related issues, is putting you and the court in a terrible place. And if you do not recuse yourself, Amy Coney Barrett, it's going to be explosive if you wind up sitting on an election - on an issue that could help decide or influence the course of the election. She basically says that she will follow the statute if she gets confirmed and consult with her colleagues about whether she would need to step aside.

KEITH: One policy area that Democrats stuck to again today, as they did yesterday, was talking about the Affordable Care Act, highlighting that it was part of the GOP platform to appoint justices who would pursue their policy goals. And senators, including Amy Klobuchar, brought up Judge Barrett's past writing that was critical of Chief Justice John Roberts' legal reasoning in his majority opinion that ultimately saved the Affordable Care Act.

(SOUNDBITE OF ARCHIVED RECORDING)

AMY KLOBUCHAR: But you have directly criticized Justice Roberts in an article in my own state in one of the Minnesota law school journals. It was in 2017. It was the same year you became a judge. And when Roberts writes the opinion to uphold the Affordable Care Act, you said he, quote, "pushed the Affordable Care Act beyond its plausible meaning to save the statute."

KEITH: Ultimately, Judge Barrett did say that she is not on a mission to destroy the Affordable Care Act.

(SOUNDBITE OF ARCHIVED RECORDING)

BARRETT: And I'd like to emphasize again that I was not attacking Chief Justice Roberts or impugning his character or anything of that sort. It was an academic critique. And I want to emphasize, you know, just given this list line of questions that you're asking that, you know, I - I'm standing before the committee today saying that I have the integrity to act consistently with my oath and apply the law as the law, to approach the ACA and every other statute without bias. And I have not made any commitments or deals or anything like that. I'm not here on a mission to destroy the Affordable Care Act.

GRISALES: However, Democrats rebuked that. They say she has answered that question in terms of her objections to the ACA in her writings, in her arguments that she's expressed in the past. They say all the evidence is there that she wants to see limits on this Affordable Care Act. So it was very enlightening in terms of seeing her react, in terms of giving her responses and trying to again say that this is something she doesn't want to give insight into something she could potentially rule on. But Democrats held firm that they believe that she's been clear on this already plenty in the past.

KEITH: Let's take a quick break now. And when we get back, what Judge Amy Coney Barrett had to say about Roe v. Wade.

(SOUNDBITE OF MUSIC)

KEITH: And we're back. And let's turn to one of the most watched issues in any Supreme Court confirmation hearing. And certainly it was something that came up several times today. That is Judge Barrett's position on Roe v. Wade. She had previously signed a statement, but it was before she was a judge in her private capacity. She had signed a statement sort of affirming the Catholic Church's position against abortion. And she was asked about that repeatedly in this hearing and also whether she considers Roe v. Wade to be a super precedent. Can one of you first explain what a super precedent is?

GRISALES: Sure. So there's nothing in the law books that talks about super precedents that's formal. But they're old cases or issues the court has decided and have been reaffirmed through decades of practice and are just generally acknowledged to be so strong that many people, millions of people over the years have relied on them. And one of those super precedents, everyone seems to agree, is Brown v. Board of Education. But Amy Coney Barrett does believe in the idea of super precedent. She's written about them. Interestingly, in the article she's written that was talked about today, Roe v. Wade was not on that list. And here's what she said about it.

(SOUNDBITE OF ARCHIVED RECORDING)

BARRETT: OK. Well, people use super precedent differently.

KLOBUCHAR: OK.

BARRETT: The way that it's used in the scholarship and the way that I was using it in the article that you're reading from was to define cases that are so well settled that no political actors and no people seriously push for their overruling. And I'm answering a lot of questions about Roe, which I think indicates that Roe doesn't fall in that category. And scholars across the spectrum say that doesn't mean that Roe should be overruled, but descriptively it does mean that it's not a case that everyone has accepted and doesn't call for its overruling.

GRISALES: I thought that was very insightful, this back-and-forth with Senator Amy Klobuchar of Minnesota, in terms of getting Barrett to be more specific about how she views Roe in view of this super precedent, whether it is settled law. And she really revealed there that we're talking about this. We're going back and forth. This is an ongoing debate that - simply that conversation is another reminder in Barrett's mind that this is not a super precedent and not settled law.

KEITH: And that is, you know, we didn't get a lot of examples of her making her views even remotely known. But this is a case where she did agree that other things were super precedent but not Roe. I wanted to get to a couple of other moments from this very long day that may well stand out, may well be something that people remember after today. And one of them was when Senator Dick Durbin of Illinois, a Democrat, asked whether she had seen the video of George Floyd's death at the hands of police and how she reacted to it. And she talked about having to talk with her 17-year-old daughter, who is Black and adopted from Haiti.

(SOUNDBITE OF ARCHIVED RECORDING)

BARRETT: It was very difficult for her. We wept together in my room. And then it was also difficult for my daughter, Juliet, who's 10. I had to try to explain some of this to them. I mean, 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. And for Vivian, you know, to understand that there would be a risk to her brother or the son she might have one day of that kind of brutality has been an ongoing conversation. And it's a difficult one for us like it is for Americans all over the country.

KEITH: This was certainly a humanizing moment and not one of the ones that was set up as a softball question by many of the Republicans in the room who also tried to bring out the judge's humanity. But this also led to her being pressed on whether she believes that there is systemic racism or institutional racism in the justice system.

JOHNSON: Yeah, and in that respect, she did not want to touch the issue of systemic racism in the justice system. She basically said at one point that these are very hot-button cultural issues, and she preferred as a judge to stay away from them. Although later she did acknowledge that in a criminal justice system this big, there were and is implicit bias.

KEITH: Well, we have made it through marathon day two, as has the judge. So what comes next? There's another round tomorrow, right?

GRISALES: Yes. The senators will get the second round of questioning. They'll be limited to 20 minutes each this time. Today, they had 30 minutes. That's why we saw such a long day. However, more rounds will follow after the 10-minute rounds of questioning. So we'll continue to see this on a replay. Senators will likely get more specific with their questions, more back-and-forth, but more to come of what we saw today.

KEITH: All right. Well, that is a wrap for us today. We will be back tomorrow. And remember, you can support all of us on this podcast by supporting your local NPR station. Head to donate.npr.org/politics to get started. And let them know that we sent you. I'm Tamara Keith. I cover the White House.

GRISALES: I'm Claudia Grisales. I cover Congress.

JOHNSON: And I'm Carrie Johnson, national justice correspondent.

KEITH: And thank you for listening to the NPR POLITICS PODCAST.

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