Can Trump Pardon Himself? Barrett Says She Can't Answer

It's the Supreme Court nominee's final day of questioning before the committee
By Newser Editors,  Newser Staff
Posted Oct 14, 2020 8:39 AM CDT
Updated Oct 14, 2020 5:50 PM CDT
Amy Coney Barrett Begins Last Day of Questioning
Supreme Court nominee Amy Coney Barrett arrives for a confirmation hearing before the Senate Judiciary Committee, Wednesday, Oct. 14, 2020, on Capitol Hill in Washington.   (Erin Schaff/The New York Times via AP, Pool)

Supreme Court nominee Amy Coney Barrett's third and final appearance before the Senate Judiciary Committee got underway Wednesday. It follows a Tuesday session that stretched almost 12 hours, and the New York Times reports that with "many of the more technical questions" out of the way, the third day of confirmation hearings will be made up of "shorter ... rounds in which [senators] may look to more forcefully make their case for or against Judge Barrett's confirmation." CNN reports that each of the committee's 22 senators will have 20 minutes to question Barrett. Outside witnesses will appear before the committee Thursday, and a vote will follow; that puts things on track for a Senate floor vote before October is through. Among the day's exchanges:

  • Democratic Sen. Dianne Feinstein tackled the topic of Medicare, asking if Barrett "agreed with originalists who have said the popular health-care program for older Americans was unconstitutional," as the Guardian put it. Barrett said she wasn't versed in the arguments for that position and "can't answer the question in the abstract." The Guardian described Feinstein as seeming "taken aback." She said to the nominee, "It's hard for me to believe that's a real question. The Medicare program is really sacrosanct in this country."
  • CNN reports Democratic Sen. Patrick Leahy cited President Trump's claim that he has the "absolute right" to pardon himself in asking Barrett if a president does indeed have that right. Her reply: "Sen. Leahy, so far as I know, that question has never been litigated. That question has never arisen. That question may or may not arise, but it's one that calls for legal analysis of what the scope of the pardon power is, so because it would be opining on an open question when I haven't gone through the judicial process to decide it, it's not one on which I can offer a view."

  • Leahy also asked, "Did you ever write or speak out against the ACA?" Barrett's reply: "I was speaking as an academic." She penned a law review essay in 2017 while a law professor at the University of Notre Dame that stated, "Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute."
  • Democratic Sen. Dick Durbin went after the subject of voting and how she would respond if the president tried to stop Americans from voting based on their race. She cited the Constitution's anti-discrimination provisions, such as the 15th Amendment, and after Durbin again pressed her, said "I really can’t say anything more than I’m not going to answer hypotheticals."
  • Democratic Sen. Amy Klobuchar wasn't thrilled with Barrett's response to her questions about voting by mail. Klobuchar asked Barrett whether she thought mail-in ballots are "an essential way to vote for millions of Americans right now." Replied Barrett, "That's a matter of policy on which I can't express a view." Klobuchar's retort: “To me that just feels like a fundamental part of our democracy.”
  • Republican Sen. Lindsey Graham quipped, "Are we not paying the bills?" after the mics repeatedly cut out during the afternoon session, causing a 30-minute delay and spurring another brief recess.
  • Graham praised Barrett for being "unashamedly pro-life. "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,” he said. “A seat at the table is waiting on you.”
  • GOP Sen. Ben Sasse asked Barrett to name the five freedoms in the First Amendment, but she only managed four. Speech, press, religion, assembly ...I don’t know, what am I missing?" she said. The fifth was the right to protest or petition the government.
  • In response to a question from Democratic Sen. Cory Booker, Barrett declined to say whether she thought it was wrong for the administration to attempt to deter migrants by separating children from their parents, the Washington Post reports. She said she couldn't be drawn into a matter of "hot political debate," though Booker said the issue involved "basic questions of human rights, human decency and human dignity."
  • The AP reports that one of the day's more dramatic moments came when Barrett told Democratic Sen. Kamala Harris that she would neither express a view on climate change nor say whether she believes whether racial discrimination in voting still exists. When the Democratic VP nominee asked her about Chief Justice John Roberts' statement in a 2013 ruling that there is "no doubt" discrimination still exists, Barrett said she would "not comment on what any justice said in an opinion." On climate change, Barrett said it was a "very contentious matter of public debate."
(Read more Amy Coney Barrett stories.)

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