Senate Republicans are looking to confirm Supreme Court nominee Judge Amy Coney Barrett next week, likely on Monday.
The Senate Judiciary Committee is poised to vote on the nomination of Barrett, currently a judge on the 7th U.S. Circuit Court of Appeals, on Thursday.
>>> Who’s the real Amy Coney Barrett? Here’s what some of her former students and clerks have to say:
What were some of the most outrageous—and best parts—of her Judiciary Committee confirmation hearings? What do we expect as the Senate votes to confirm her?
Carrie Severino, president of the Judicial Crisis Network, joins “The Daily Signal Podcast” to discuss it all.
We also cover these stories:
- A tie vote in the Supreme Court over the deadline for Pennsylvania’s mail-in ballots means that mail-in votes will be counted in the state through Nov. 6.
- A poll released Tuesday from Gallup found that 51% of those surveyed want Barrett confirmed.
- On Tuesday, the Justice Department filed an antitrust lawsuit against Google.
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Rachel del Guidice: We’re joined today on “The Daily Signal Podcast” by Carrie Severino. She is the president of the Judicial Crisis Network. Carrie, it’s great to have you back with us on “The Daily Signal Podcast.”
Carrie Severino: Great to be here.
Del Guidice: Well, last week, as most of the nation watched, Judge Amy [Coney] Barrett faced three days of intense questioning. In some cases, the questions were a little bit condescending. I’d like to talk to you a little bit about your perspective of those three days of questioning.
Severino: Yeah, it was really impressive. I mean, my whole career I’ve been watching Supreme Court confirmations and judicial confirmations generally. I don’t know if I’ve ever seen one that was just as clear a “knock it out of the park” performance as Amy Coney Barrett delivered last week. She was poised. She was very patient.
Boy, I was exhausted by the end of that first day of 11 hours or so of questioning. When you keep on getting asked the same question over and over and over again, and especially when it’s questions you know you can’t answer about how are you going to rule on a specific case or something, and yet she just kept coming back.
At the end of the day, even she had some complicated questions that were thrown, some even by Republican senators. I’m like, “Oh, my gosh, guys. Give her a break.” And yet she’s still on, and she was really able to answer all of these and be up on all these different areas of law.
I loved the moment where she held up her notepad and it was blank, and you saw, “Oh, my gosh. She’s doing this all without notes.” It was very powerful.
Del Guidice: On the note of the questions, I was wondering if there are any particular questions she received, or some of the statements, because sometimes she was just read very long pages and pages of statement.
So if there’s anything of those that stood out to you of, “Wow, like, this was inappropriate,” or, “That was a really good question,” if there’s any that really made you think that was noteworthy for one reason or another.
Severino: Yeah. Well, one of the things that I thought was kind of inappropriate was the focus of the questions from the Democrats on her policy positions. They did this most notably with respect to Obamacare.
For anyone who watched the hearing, you saw they would often take turns having posters behind them of a picture of someone, one of their constituents or something, who had been helped by the Affordable Care Act.
And constantly, the implication throughout is, “Well, you don’t care about these people because we know that you’re committed to ruling against the Affordable Care Act,” which is, as she, I think, did a good job of explaining later on in the day, is a fallacy on multiple levels.
First of all, she’s like, “I don’t have any animus toward the Affordable Care Act. There’s no ‘I think this is a horrible thing and I’m going to do everything in my power to get rid of it.'”
Second of all, she had written at one point about the NFIB v. Sebelius decision that was the original Obamacare case that had to do with … whether it’s a tax or a penalty, that case, and she criticized Chief Justice John] Roberts because he chose an interpretation of the statute that even he acknowledged wasn’t a natural interpretation of the statute.
She said, “Well, even if I have said that, the question that the court is addressing this term, because they do have a case coming up about Obamacare, it’s a different question. So unless you’re trying to say, ‘Well, on a totally different question, I’m going to rule against it just because I hate Obamacare,’ then your arguments don’t make sense.”
They did that on a few different areas as well. They were asking her how she felt about global warming and … all of these different topics. …
You’re suggesting then that when she talks about her approach to the law, looking at what the text of the law says, looking at what the original meaning of the Constitution is, that she’s really just lying, that really, what she’s doing is trying to figure out what her policy is and then effecting that from the bench.
But that’s really insulting to call her a liar in that prospect, and it’s also belied by her own record, which is very clear that … she calls it like she sees it. She looks at what the law says.
And this is why she has cases where, for example, she’s ruled for and against the Trump administration even though he nominated her because that’s what you do as a judge. You try to look what the actual answers are.
I thought one of my favorite parts of it were some of the moments of her personality coming through and getting a chance to talk about her family.
There was one “gotcha” moment that I thought was really powerful. One of the senators—I think it was Sen. [Dick] Durbin, I can’t remember—from the other side asked her what she thought about the George Floyd videos. It seemed, again, another of these kind of [questions] that’s not really relevant to what your job as a judge is, but she answered the question.
It … actually brought me to tears her talking about watching this video with her daughter who is black, and her husband … and her sons were on a camping trip, and how they cried together.
How that has been a conversation that has been going on through their house since then and trying to talk through what’s going on, especially with her daughter who realizes that looking at that man could see potentially her own father, her own son, … a man who looks like her in the same situation.
I think that was really, I think, intended as a maybe a “gotcha” question, but came off and showed her humanity in a real way as well as the opportunity she had to respond to some of the criticism that she’d had where she talked about how attacks, for example, on her children’s adoptions and how hurtful that was, but how that was one of the things that when she and her husband prayed about whether to take this opportunity and accept the nomination, … they recognized that there could be some of that.
Unfortunately, it could be people attacking her children or trying to hurt her personally, but that challenge and the potential difficulty of the nomination wasn’t a reason to say no when you had a job that’s … going to be difficult for whoever is put up for this position and how we should step up for public service when asked even in the face of difficulty, and we know that she has faced some of that difficulty in the process.
Del Guidice: Thank you for sharing that. Actually, one of my next questions was going to be about health care and all the Obamacare questions she received. I wanted to hear from you.
So many of the senators basically phrased it as, “If you’re confirmed, people will basically die.” I mean, I’m paraphrasing here, but that’s a lot of what we heard over and over again.
I just wanted to ask you, as someone who has followed this process and knows the procedure, is that appropriate when having these conversations?
Severino: I think it’s inappropriate because they’re, again, they’re not being honest about what her own positions even are. It’s not even as if she’s taken a position on the case that is addressing Obamacare.
On top of which, as some of the Republican senators pointed out, and Sen. Chairman [Lindsey] Graham, for example, the idea that overturning Obamacare and then people will die and you want people to die is an absurd thing in and of itself.
I mean, obviously, there was health care before Obamacare. There’ll be health care even if that law were changed or eliminated. But the idea that people are taking … even a caricatured position of hers and then blowing it to the most rhetorically out-there statement, unfortunately, that’s not something that’s new.
I mean, I think … the most memorable opportunity when the Democrats did that was with Judge [Robert] Bork. That was something that happened and really took a lot of people by surprise at the time because that was not a common tactic at the time.
But they went down, and Sen. [Ted] Kennedy at the time, went down a list of all of these issues, and they said, “Well, if Bork is confirmed, there’s going to be segregated lunch counters, and women are going to be getting back-alley abortions, and policemen will be allowed to break into your house and drag you out in the middle of the night.”
It simply wasn’t true, and it was all more hyperbole than anything else, but unfortunately, a lot of that seemed to be very effective in caricaturing him at the time and it contributed to his defeat.
I think now a lot of people recognize that, “Oh, … this is all about politics, their statement. It really doesn’t reflect what the actual nominee’s positions are, what her positions were as a judge.”
I think that has been a little bit of the boy crying wolf here. … Every time there’s a Republican nominee, there’s some excuse to say, “Well, people are going to die. People are going to die.” And you’re like, “Guys, you say this every time. We have to recognize this is not actually a reasonable statement based on her record.”
Del Guidice: Well, two other instances I wanted to ask you about, on one note, Sen. Amy Klobuchar had told Barrett during her exchange with her one of the days of the hearing, she said, “I might have thought someday I’d be sitting in that chair.” It was kind of an interesting exchange that they had.
Then Sen. Mazie Hirono, a Democrat from Hawaii, had asked Judge Barrett if she ever sexually assaulted someone. …
You’re a mom, you work in the law as well. What was your perspective of those two different exchanges given that you do have a similar life pattern to Judge Barrett?
Severino: Yeah. I, too, caught that side note in Sen. Klobuchar, and I was like, “Oh, someone’s a little bitter that she didn’t make the Supreme Court list,” although, who knows.
I mean, maybe she’ll be on [former Vice President Joe] Biden’s list, although, … even though he won’t tell us who’s on his list, he’s committed to putting a woman of color on, so maybe she’s still bitter she’s not making the list. I don’t know.
Sen. Hirono’s question I thought felt like—look, she has this pattern of asking that question of every nominee. She asked it of [Justice Neil] Gorsuch, she asked it of [Justice Brett] Kavanaugh, but I think it’s a really crude question.
And it was particularly troubling to me because her children were in the room at the time she asked that question. I mean, this is not something you want to explain to your kids of what’s going on here.
My kids were watching much of these hearings. I thought it was a great opportunity to have a civic education moment for them, but we shouldn’t have to censor those moments for our children.
I do think it’s pretty crude to effectively suggest that maybe she had been out there sexually assaulting people. Obviously, not the case, and I think she was very unambiguous, but I don’t think anyone really took seriously the idea that she’s a sexual assailant, but unfortunately, making those kinds of illusions is nothing new in a judicial confirmation process.
Del Guidice: Well, Carrie, you did a lot of work covering and speaking about now-Justice Kavanaugh’s confirmation hearings. We all remember what went down then. I was curious to hear your thoughts on how Judge Barrett’s confirmation process has maybe been similar, but also very different from Justice Kavanaugh, and just your thoughts comparing the two.
Severino: Yeah. … There’s certainly been a lot of hostility, but we haven’t seen some of the explosions that we did during the Kavanaugh process because some people, even the left, have recognized how much that hurt them.
And particularly, this close to an election, I think there are a lot of people who realize if they go for the jugular, effectively, like they did with Kavanaugh, that that’s something that Americans don’t want to see. We don’t want to have this turned into a partisan football and a smear campaign every time.
I think it made it harder for them to do it because it was someone like Amy Coney Barrett. Obviously, a woman is harder to make allegations against as they did against Kavanaugh and Justice [Clarence] Thomas, recall.
So that wasn’t a new strategy either, but I think it was also something where they had to recognize that some of the attacks that they had tried on her in the past, the anti-Catholic attacks that Sen. [Dianne] Feinstein and Sen. Durbin launched at her last hearing, for example, and that Sen. [Kamala] Harris is famous for using against other nominees, that’s the kind of thing that is going to look really bad.
In a moment where it’s so close to an election, I think that may have forced them to pull back a little.
At the same time, I was surprised to see that some people on the left are even trying to say that Sen. Feinstein should be taken out of her position of leadership of the committee because she was too nice. …
I think, gosh, guys. I think she’s helping you. I think the fact that she was cordial and civil during this process and that she’s able to work with Chairman Graham on that committee should have been something that people should be celebrating and not view as somehow evidence of her mental decline, which is what they seem to be citing. “Oh, you hugged him, Sen. Graham. That must mean that you just don’t have what it takes anymore.”
I think, actually, … even though there were crazy questions and there have been, … particularly from the media, some really gross and rude attacks on her faith and her family, the fact that Democrats didn’t want to go there in public while they were on C-SPAN while they were in the hearings is a testament to the fact that they saw how harmful the Kavanaugh confirmation was to the nation.
I have to say, though, I’m saying this almost with my fingers crossed here because, at this point, we are at the phase in this nomination that we were in the Kavanaugh nomination when those allegations exploded.
Kavanaugh as well, there was a lot of hostility and opposition during his first hearing, but people afterward recognized he had [done] an outstanding job, he had knocked it to the park. He was going to get confirmed, and that’s when, out of a desperation move, some of these smear campaigns were launched.
I think we can’t count our chickens quite yet, and we have to just hold on. Obviously, we’ve got scheduled to vote, the floor coming up, or first in the committee and then the floor. Things are moving along, but I don’t think we can ever be sure that there’s not this last-ditch effort that’s going to be launched until she’s actually confirmed over the finish line.
Del Guidice: As you mentioned, the Senate Judiciary Committee will be voting on Thursday, and then the full Senate vote is expected next week, probably on Monday. What do you expect? And do you think by midweek next week we could have Justice Amy Barrett?
Severino: Yeah. Again, barring something crazy happening, which is not unforeseen and not something that hasn’t happened before, but assuming everything goes according to plan, I think we should have an Amy Coney Barrett.
I think we absolutely have the votes, as even some liberals have acknowledged, if this were any other year, she would be overwhelmingly confirmed. I think not just that. I think she would have been unanimously confirmed under different political circumstances.
I think she’s probably going to get by with a bare partisan majority. Maybe you’ll get people like [Sen.] Joe Manchin who’s OK being the 52nd vote in these cases, but not really the 51st.
But I think that’s unfortunate because there used to be an era—you know, Justice [Antonin] Scalia was confirmed unanimously. Justice [Sandra Day] O’Connor was confirmed unanimous. Justice [Ruth Bader] Ginsburg was confirmed virtually unanimously, despite having a very clear record of working for the ACLU, having some opinions that were well to the left even at the time.
I think when you are confronted with a nominee who’s qualified as Judge Barrett is, I think she ought to be getting unanimous support. But I think she’ll certainly have enough to be seated, and I think it’ll be really exciting to have the first originalist woman sitting on the court.
Del Guidice: Well, as we wrap up, I wanted to hear your perspective on what has happened in 2020 with so many lower court judges continuing to be confirmed and how the Trump administration has worked on that to confirm those judges. What will be the impact there in the long term?
Severino: Well, in some sense, we’re already seeing it with Barrett’s nomination to the Supreme Court. She was one of those lower court judges, one of those 50-some appellate judges that this president had confirmed, and really historic numbers—to have that many in a single term is outstanding.
What that does to the courts is it takes the appellate courts where 99% of the cases are decided and helps bring them back in line with the rule of law.
These aren’t judges who are just going to switch the courts from being run by liberal judicial activists to conservative judicial activists. These are judges who believe in following the rule of law as it is written.
I remember speaking to one Trump appointee last year who said:
It’s a wonderful job, but the most frustrating part is there’s so many laws that are just really bad laws, either bad laws because you disagree with them, or bad laws because … the sausage is not always a pretty product. When the Congress gets writing a law, they don’t do it well. They make mistakes, or they need to be updated, but you have to still decide cases according to those laws. That means sometimes you come to results that you really don’t like and you don’t think are the results you would like to do.
And that, while it can be frustrating for a judge, is the exact answer you want to hear. Those are the kinds of judges you’re going to have on the courts, are going to be faithful to the rule of law.
That means that when we find laws that we don’t like, we actually, as the American people, can have recourse to our elected officials.
You can’t do anything about a judge that’s misinterpreting the law, but you can do something if the laws are badly written, and you can change them through your elected representatives, as the Constitution describes.
Then, of course, all of these men and women who are on the courts now who’ve had already impact in switching three circuits to be majority-Republican appointees to have had switched the 9th Circuit, which is widely known as being one of the most frequently overturned, most detached from anything that has to do with the text of what the law is, very activist court, now is very close to 50/50 judges, Republican and Democrat appointees.
Now, even though those Republican appointees, who weren’t all originalist or textualist before, are much more dominated by some people who are going to be faithful to the words of the law. I think that’s a huge win, not just for Republicans, not just for conservatives, but really, for the nation as a whole.
These, of course, [are] the men and women who are going to be then future Supreme Court justices one day that they’re getting their experience and they’re honing their judicial skills now hopefully to move on to even higher office.
Del Guidice: Well, Carrie, thank you so much for joining us today on “The Daily Signal Podcast.” It’s always great having you.
Severino: Good to be here.