On the third and final day of confirmation hearings for Supreme Court nominee Amy Coney Barrett, senators revisited some issues covered the day before but also detoured into a president’s ability to pardon himself and the high court’s resolution of the 2000 presidential election.
Democrats and Republicans on the Senate Judiciary Committee also had to wait out technical difficulties with the audio in the hearing room.
President Donald Trump announced Sept. 26 that he would nominate Barrett, a judge on the 7th U.S. Circuit Court of Appeals, to replace the late Justice Ruth Bader Ginsburg on the Supreme Court.
Here are seven takeaways from Day 3 of the confirmation hearing.
1. Presidential Power
Sen. Patrick Leahy, D-Vt., pressed Barrett on the limits of presidential power regarding pardons and the Supreme Court’s power to require a president to obey a court order.
Barrett referenced a founding document, Federalist 78, to talk about the constitutional limits of the judiciary.
“Courts have neither force nor will. In other words, we can’t do anything to enforce our own judgments,” Barrett said. “So, what I meant in the conversation with you is that as a matter of law, the Supreme Court may have the final word. But the Supreme Court lacks control over what happens after that. The Supreme Court and any federal court has no power, no force, and no will, so it relies on the other branches to react to its judgments accordingly.”
Leahy followed by asking: “Is a president who refuses to comply with a court order a threat to our constitutional system of checks and balances?”
Barrett, 48, answered by bringing up the high court’s unanimous 1954 ruling in Brown v. Board of Education to end “separate but equal” racial segregation in public schools.
After the high court decided that case, Arkansas Gov. Orval Faubus, a Democrat, used the state’s National Guard to prevent desegregation of schools in Little Rock in 1957. President Dwight Eisenhower, a Republican, federalized the National Guard and sent the 101st Airborne into Little Rock to enforce federal law.
“The example of Brown is a perfect one in this instance because the Supreme Court in Brown, of course, held that segregation violated the [Constitution’s] Equal Protection Clause,” Barrett said. “That was the law. But as you know, there was resistance to that decision. As you know, it wasn’t until the National Guard came in and forced Gov. Faubus to allow desegregation that could happen, because the Supreme Court couldn’t do so itself.”
Leahy pressed her again on whether a president could disobey a high court order.
“As I said, the Supreme Court can’t control whether or not the president obeys,” Barrett responded. “Abraham Lincoln once disobeyed an order during the Civil War of a circuit court. So, a court can pronounce a law and issue a judgment, but it lacks control over how the political branches respond to it.”
Leahy went on to ask: “Would you agree no one is above the law?
Barrett responded, “I agree that no one is above the law.”
With that, Leahy asked: “Does a president have an absolute right to pardon himself for a crime? We heard this question after President Nixon’s impeachment.”
Barrett suggested that this could be a matter that goes before the Supreme Court and thus not something she could address.
“So far as I know, that question has never been litigated. That question has never arisen,” Barrett said. “That question may or may not arise. It’s one that calls for legal analysis for what the scope of the pardon power is. 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 in which I can offer a view on.”
Leahy replied: “I find your answers somewhat incompatible.”
2. Feinstein ‘Really Impressed’
Sen. Dianne Feinstein, D-Calif., the ranking member of the Judiciary Committee, said she was “impressed” by an answer from Barrett.
A key attack from Democrats has been that Barrett’s confirmation would mean the end of the Affordable Care Act, better known as Obamacare. That’s because a case called Texas v. California is heading to the Supreme Court.
Texas and other states assert that because Congress removed the law’s individual mandate requiring Americans to buy health insurance, the rest of the law is unconstitutional. They note that the high court held in 2012 that the Obamacare law was constitutional because the individual mandate was a tax.
Earlier in the hearing, Senate Judiciary Chairman Lindsey Graham, R-S.C., initially asked Barrett about the “doctrine of severability.”
Barrett said courts make a “presumption of severability” and consider the intent of the legislature.
Severability means that if one provision of a law passed by Congress is struck down by a court it doesn’t necessarily mean the entire law is struck down when that provision is severed.
Graham asked, “The doctrine of severability has a presumption to save the statute if possible, is that correct?”
Barrett affirmed it was.
Later, Feinstein followed up to ask Barrett to explain the meaning of the doctrine of severability again.
Barrett told Feinstein that severability tries not to undo the work of the elected branch of Congress.
“Severability strives to look at a statute as a whole and say, ‘Would the Congress have considered this provision so vital that, sort of [like] in a Jenga game, pulling it out, Congress wouldn’t want the statute anymore?’” Barrett said.
“I think, insofar as it tries to effectuate what Congress would have wanted, it’s the court and Congress working hand in hand,” the judge said.
This answer pleased Feinstein, who, as the committee’s ranking member, leads opposition to the nominee.
“Thank you. That’s quite a definition. I’m really impressed,” Feinstein said.
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Senator Leahy: "We heard that question after President Nixon's impeachment." No, you didn't. Nixon was never impeached. But I wouldn't expect a United States Senator to know United States history.
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