Barrett confirmation hearing day one Courts aren’t designed to ‘right every wrong’ in society, Barrett says in opening

Democrats believe their most effective political play is to frame the battle over Supreme Court nominee Amy Coney Barrett as a fight over health care, knowing they have little power to halt her confirmation before Nov. 3.

“We do not have some secret, clever procedural way to stop this sham. Let’s be honest,” Sen. Amy Klobuchar (D-Minn.) said at a post-hearing news conference with other Democratic senators. “And as good as we are, it’s probably not going to be some brilliant cross-examination that is going to change the trajectory of this nomination. But there is one thing that will, and that is the people of this country. That is them voting.”

Democrats also dismissed efforts by Republicans to preemptively defend Barrett from attacks on her religious beliefs. No Democratic senator referred to the nominee’s Catholic faith in opening statements on Monday, and none plans to do so in questioning later this week.

“Did you hear one of us raise that issue?” Sen. Richard J. Durbin (D-Ill.) asked. “We have taken an oath to the Constitution, which says no religious test. Enough said.”

Three years before she sat in a Senate hearing room as a Supreme Court nominee, Barrett disparaged the legal reasoning of the nation’s chief justice when he wrote the majority opinion in a major case that upheld the Affordable Care Act.

In an essay published in a journal of Notre Dame Law School, where Barrett was a professor, Barrett contended that judges should respect the text of statutes and that Chief Justice John G. Roberts Jr. pushed the health-care law “beyond its plausible meaning to save the statute.”

In the 2012 case, the first time the high court considered the constitutionality of the 2010 law that reshaped much of the U.S. health-care system, ACA opponents argued that Congress had overstepped its bounds of the Commerce Clause when it included a tax penalty for people who disregarded the law’s requirement that most Americans carry health insurance. Roberts wrote that this part of the law fell within Congress’s legitimate taxing authority.

The court majority, Barrett wrote in her 2017 essay, “expresses a commitment to judicial restraint by creatively interpreting ostensibly clear statutory text.”

The Supreme Court upheld the ACA on different grounds in 2015. It is scheduled to hear oral arguments in a third case challenging the law on Nov. 10, a week after the November elections.

Barrett made her formal introduction before the Senate Judiciary Committee on Monday, pledging to be a justice who will apply the law “as written” and paying tribute to justices across the ideological spectrum who came before her: Justices Antonin Scalia, Sandra Day O’Connor and Ginsburg.

Barrett hewed close to her prepared remarks, which were made public on Sunday, in which she stressed her philosophy that courts were not a place where every right or wrong in society should be corrected.

“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” Barrett told the Senate Judiciary Committee. “The public should not expect courts to do so, and courts should not try.”

She noted that Scalia — for whom she clerked — believed that a judge must apply the law as written and not as he or she wished it were.

“It was the content of Justice Scalia’s reasoning that shaped me,” Barrett said.

As for her female predecessors, Barrett praised O’Connor — the first woman to sit on the Supreme Court — as a “model of grace and dignity” and paid tribute to Ginsburg’s storied career.

“I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place,” Barrett said. “I will be forever grateful for the path she marked and the life she led.”

She told the committee that a Supreme Court seat was “not a position I had sought out” and that she “thought carefully” before accepting the nomination. Senate documents show she accepted it Sept. 21, three days after Ginsburg’s death.

Barrett also nodded to her family, sitting behind her except for her youngest child, Benjamin, who is staying with friends. Earlier Monday, Benjamin was calling out the names of his siblings as he saw them on television, Barrett said.

“The confirmation process — and the work of serving on the court if I am confirmed — requires sacrifices, particularly from my family,” Barrett said. “I chose to accept the nomination because I believe deeply in the rule of law and the place of the Supreme Court in our nation.”

Senate Judiciary Chairman Lindsey O. Graham (R-S.C.) took a few minutes during the hearing to submit into the record a letter from the Architect of the Capitol saying the room for the hearing was CDC compliant after Democrats chided the GOP for pushing ahead during the pandemic without proper precautions.

Graham said he was tested a week ago Friday after brief contact with Sen. Mike Lee (R-Utah), who recently tested positive but whose doctor said he was cleared to return to work. He was in the hearing in person on Monday.

“I made a decision to try to make the room as safe as possible, but to come to work,” Graham said. “Millions of Americans are going to work today. Somebody may have tested positive in a restaurant, military unit, fire department or police department. You make it as safe as possible. You manage the risk and you go to work.”

Democrats have argued that lawmakers should have been tested for coronavirus before the hearing as a precaution. Graham said that was not necessary.

“I’m not going to be told to be tested by political opponents,” Graham said. “I’m going to be tested as an individual when the CDC requires it. I think we can safely conduct this hearing.”

Sen. Kamala D. Harris (Calif.), the Democratic vice-presidential nominee, echoed the health-care message of other Senate Democrats and warned that confirming Barrett to the Supreme Court would precipitate the demise of the Affordable Care Act.

Like the other Democrats who spoke before her, Harris in her opening remarks told the story of a constituent who has benefited from the protections of the 2010 health-care law: an 11-year-old girl named Myka from Southern California, who has a congenital heart defect and has to see multiple specialists during the year.

Harris argued that because Republicans have failed legislatively to repeal the increasingly popular Affordable Care Act, “now they are trying to bypass the will of the voters and have the Supreme Court do their dirty work.” The justices are scheduled to hear oral arguments in a high-profile Obamacare case on Nov. 10.

“They are trying to get a justice onto the court in time to ensure they can strip away the protections in the Affordable Care Act,” Harris said in her opening remarks. “And if they succeed, it will result in millions of people losing access to health care at the worst possible time in the middle of a pandemic.”

In her prepared remarks, Harris also cited the late Justice Ruth Bader Ginsburg, praising her as someone who “devoted her life to fight for equal justice.” As she hailed Ginsburg and her legacy, the children’s book “I Dissent” about the late justice was displayed behind her.

“By replacing Justice Ruth Bader Ginsburg with someone who will undo her legacy, President Trump is attempting to roll back Americans’ rights for decades to come,” Harris said.

Harris was appearing remotely from her office in the Hart Senate Office Building, claiming that Republicans did not take sufficient public-health safeguards to hold such in-person proceedings during a pandemic.

Sen. Cory Booker (D-N.J.) was the first senator to talk at length Monday about the possibility that Barrett’s confirmation could lead the court to overturn the landmark abortion rights decision in Roe v. Wade.

Booker warned that Barrett’s presence on the Supreme Court would result in more restrictions on abortion access, particularly for women of color and those living in rural areas.

These women will be “denied the ability to be able to make decisions about their own bodies,” he said.

“They can’t just pack up and leave if abortion is restricted or criminalized.”

Based on her academic writings, personal beliefs and rulings as a judge, both liberals and conservatives believe that Barrett would support restricting, if not outright overturning, the 1973 decision that guarantees a woman’s right to an abortion.

Sen. Mike Crapo (R-Idaho) defended Barrett’s record and emphasized that she would not “legislate from the bench.”

He called concerns from Democrats like Booker about abortion rights the “tired, worn-out argument” that is made “every time a Republican president nominates a candidate for the bench.”

White House Chief of Staff Mark Meadows refused to answer questions Monday from reporters outside the Senate room where Barrett’s confirmation hearing is taking place after he was asked to keep his mask on.

Video of the episode shows that Meadows initially took a few steps back from reporters, saying, “This way I can take this off,” as he started to remove his black mask.

“I’m more than 10 feet away,” he said as a CNN reporter objected.

Meadows then walked away, saying, “I’m not going to talk through a mask.”

Meadows has been overseeing protocols at the White House as it attempts to contain the spread of the virus, which has infected several key staffers and the president.

When Sen. Mike Lee (R-Utah) removed his mask to speak at Barrett’s hearing, it was that act — more than his words — that resonated across the room.

Lee announced 10 days ago that he had tested positive for the coronavirus and although he had said he has been cleared by a doctor, he still has not produced a negative coronavirus test.

Lee’s presence was all the more striking because of the room’s absences. Sen. Ted Cruz (R-Tex.) appeared remotely — because he self-quarantined after being exposed to Lee. Sen. Thom Tillis (R-N.C.), who announced he had tested positive for the coronavirus on the same day as Lee, also tuned in to the hearing via video from home.

How widely the coronavirus has affected the Republican ranks of the Judiciary Committee is an open question. Judiciary Chairman Lindsey O. Graham (R-S.C.) has refused to take a coronavirus test, arguing that he doesn’t have to because he was cleared by the attending physician of the Capitol, Brian P. Monahan, despite his exposure to Lee within days of that senator’s positive diagnosis.

Lee’s letter from Monahan said the Centers for Disease Control and Prevention doesn’t recommend repeat testing in the absence of a fever.

Sen. Sheldon Whitehouse (D-R.I.) expressed panel Democrats’ alarm about the situation Monday morning.

“I do not know who has been tested, who should be tested, who is a danger, what contact tracing has been done on infected and exposed senators and staff,” Whitehouse said. “Nothing. The whole thing, just like Trump, is an irresponsible botch.”

Graham offered only a passing quip about Lee’s health.

“Senator Lee’s enthusiasm for the dormant Commerce Clause convinces me you’ve made a full recovery,” he said after Lee’s opening statement.