“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.”
« Senator Lindsey Graham
Republican of South Carolina“Whether you like or not — and I
suspect you probably do not —
the president has placed both you
and the Supreme Court in the
worst of positions.”
» Senator Patrick J. Leahy
Democrat of Vermont“I was under the impression that
you were a different person than
Justice Scalia and have your own
mind. Is that fair to say?”
« Senator Josh Hawley
Republican of Missouri“There is a political agenda here,
and whether you are privy to it, or
part of that notwithstanding, it
has to do with the Affordable
Care Act.”
» Senator Richard J. Durbin
Democrat of IllinoisERIN SCHAFF/THE NEW YORK TIMESPOOL PHOTO BY BONNIE CASHHILARY SWIFT FOR THE NEW YORK TIMESERIN SCHAFF/THE NEW YORK TIMESTHE NEW YORK TIMES NATIONALTHURSDAY, OCTOBER 15, 2020 Y A
Illinois, said Wednesday,
speaking about how Mr. Trump
loomed over the proceedings.
“And it raises many questions.”
David A. Strauss, a constitu-
tional law professor at the
University of Chicago, said it
was not unusual for presidents
to seek ideological predictabili-
ty in their Supreme Court
nominees. What is different in
this case, he said, is how far the
president went beforehand in
laying out his perceived re-
quirements.
“Every president has some-
thing in mind, but he has just
said it, and is the sort of person
who makes it impossible for
the nominee to distance them-
selves,” Mr. Strauss said. “It
puts the nominee in an awk-
ward position.”
The shadow Mr. Trump has
cast over the confirmation
hearings reached beyond his
views of the court and the
attributes he sought in the
justices he appoints. He has
vilified federal judges who
have ruled against him, shown
disregard for the rule of law
and ordered the Justice De-
partment and federal law en-
forcement to pursue his per-
sonal political aims.
He has generally exhibited a
view of the federal judiciary far
different from other presidents,
expecting those he named to
the courts to share his views
and to enforce them, even if
they stretched the law. And he
has refused to commit to ac-
cepting the outcome of the
presidential election and a
peaceful transfer of power
should he lose. That has all
made Democrats far less will-
ing to accept the nominee’s
assurances that she herself
does not have a political
agenda.
During questioning, Demo-
crats repeatedly raised the
alarm over how Mr. Trump’s
tweets and comments had
colored their perceptions of
Judge Barrett. They noted that
almost as soon as the vacancy
occurred, the president urged
Republicans to move swiftly to
fill the seat “because we’re
going to have probably election
things involved here, you know,
because of the fake ballots that
they’ll be sending out.”
Democrats said such state-
ments endangered the credibil-
ity of both Judge Barrett and
the court over all.
“Whether you like or not —
and I suspect you probably do
not — the president has placed
both you and the Supreme
Court in the worst of positions,”
said Senator Patrick J. Leahy,
Democrat of Vermont.
Judge Barrett herself, an
appeals court judge who has
taught and written about con-
stitutional law as a professor
for nearly 20 years, has given
Democrats plenty of reasons to
doubt her neutrality. She criti-
cized Chief Justice John G.
Roberts Jr. for sustaining a
central provision of the health
care law. She signed a 2006
advertisement in support of
overturning “the barbaric
legacy” of Roe v. Wade. And
she reveres her mentor, former
Justice Antonin Scalia, with
whom she shares a strict origi-
nalist legal philosophy that has
led her predecessors to over-
whelmingly conservative out-
comes.
Still, she sometimes ap-
peared frustrated at Demo-
crats’ efforts to portray her as
Mr. Trump’s agent, emphasiz-
ing that she would make deci-
sions based only on the law
and the particulars of a case.
She said she was not “hostile”
to the Affordable Care Act,
which is scheduled to be the
subject of a Supreme Court
hearing the week after the
election.
“I am my own person,”
Judge Barrett said, referring to
the section of the Constitution
that created the federal judicia-
ry. “I’m independent under
Article III, and I don’t take
orders from the executive
branch or the legislative
branch.”
In a nod to the president’s
favorite form of expression,
Judge Barrett said: “I can’t
really speak to what the presi-
dent has said on Twitter. He
hasn’t said any of that to me.”
Despite her protests, Repub-
licans evidently feared that the
Democratic attacks were tak-
ing a toll, if not on her chances
for confirmation, at least onher reputation and their own
electoral fortunes by raising
the prospect that she would —
in line with Mr. Trump’s wishes
— undo the Affordable Care
Act.
To push back on that impres-
sion, Senator Lindsey Graham,
Republican of South Carolina
and the chairman of the Judi-
ciary Committee, opened the
hearing on Wednesday by
carefully walking Judge Bar-
rett through a scenario where
the Supreme Court could find
one element of the law uncon-
stitutional while upholding the
rest.
Though the Trump adminis-
tration favors overturning the
entire law, Republicans have
begun to raise the prospect
that most of the law would be
preserved, trying to ease vot-
ers’ fears that they could lose
their health coverage during a
pandemic. Judge Barrett, who
had mainly avoided talkingabout how she would rule,
agreed that the so-called doc-
trine of severability would be a
legitimate approach to such
cases.
On Tuesday, Senator Joni
Ernst, Republican of Iowa,
brought up a case where Judge
Barrett upheld a protest buffer
zone around abortion clinics,
trying to show that the judge
was willing to rule against her
own personal anti-abortion
rights views.
But Democrats persisted in
tugging at the ties between Mr.
Trump’s loudly stated views
and Judge Barrett’s nomina-
tion.
“The president has said that
reversing Roe v. Wade will
happen automatically because
he is putting pro-life justices on
the court,” said Senator Shel-
don Whitehouse, Democrat of
Rhode Island. “Why would we
not take him at his word?”
Democrats also noted that
Judge Barrett was nominated
to the federal bench only
months after the academic
article she wrote in 2017 calling
into question Chief Justice
Roberts’s health care decision.
They pointed out that the arti-
cle came after Mr. Trump wrote
on Twitter in 2015 that “If I win
the presidency, my judicial
appointments will do the right
thing unlike Bush’s appointee
John Roberts on Obamacare.”
Democrats questioned
whether the article was tai-
lored to the president’s objec-
tions.
“I just find it hard to under-
stand that you were not aware
of the president’s statements,”
said Senator Amy Klobuchar,
Democrat of Minnesota.
Judge Barrett said she was
uncertain when she first
learned of Mr. Trump’s deep
opposition to the health care
law, but bristled at the sugges-
tion that the article was written
to curry favor with the admin-
istration and win her a court
slot.
“I want to stress I have no
animus toward or agenda on
the Affordable Care Act, so to
the extent you are suggesting
this was like an open letter to
President Trump, it was not,”
she told Ms. Klobuchar.
Democrats also pressed
Judge Barrett about how she
would approach the matter of
Mr. Trump’s own legal expo-
sure, given how frequently he
has suggested that he has
absolute power.
Mr. Leahy asked Judge
Barrett whether Mr. Trump
had a right to pardon himself
for any wrongdoing, after the
judge had agreed with Mr.
Leahy that, under the Ameri-
can legal system, no person is
above the law.
Judge Barrett hedged, say-
ing that his query might be the
subject of future case and she
wanted to avoid “opining on an
open question when I haven’t
gone through the judicial
process to decide.”
Given her view that no per-
son is above the law, Mr. Leahy
said he found her answer
“somewhat incompatible, but
those are your answers.”
“You have a right to say
what you want,” he added.NEWS ANALYSISTight-Lipped Pick
Haunted by Words
From White House
From Page Asaid, “I think the dissent has the
better of the legal argument.”
“That’s not to say the result
isn’t preferable,” Judge Barrett
said at the time. “It’s clearly a
good result that these millions of
Americans won’t lose their tax
subsidies.”
While Judge Barrett’s com-
ments about severability were ar-
guably at odds with the legal posi-
tions taken by Republicans in the
pending case, they were consis-
tent with recent Supreme Court
opinions.
In June, the court ruled that a
provision of the law creating the
Consumer Financial Protection
Bureau was unconstitutional. But
Chief Justice Roberts said the rest
of the law could stand. “We think it
clear that Congress would prefer
that we use a scalpel rather than a
bulldozer in curing the constitu-
tional defect we identify today,” he
wrote.
About a week later, in a case on
a federal law regulating robocalls,
Justice Brett M. Kavanaugh made
a similar point. “Constitutional lit-
igation 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,” he wrote.
There is an element of “gotcha,”
some legal scholars say, in the se-
quence of arguments in the latest
challenge to the health care law.
The arguments start with Chief
Justice Roberts’s 2012 opinion up-
holding the individual mandate as
authorized by Congress’s power
to levy taxes.
That power disappeared, the
argument goes, when Congress,
after repeatedly failing to repeal
the entire law, reduced the pen-
alty associated with the individual
mandate to zero.
That may or may not be so, but
the answer to the question is by it-
self inconsequential. The larger
issue is whether the mandate is
severable from the rest of the stat-
ute.
Judge Barrett, answering a
softball question from Mr. Gra-
ham, indicated that she was skep-
tical about that second step.
“If you can preserve a statute,
you try to, to the extent possible?”
he asked.
Judge Barrett responded,
“That is true.”
ANNA MONEYMAKER FOR THE NEW YORK TIMESDemocrats worry
that the president is
casting a shadow.