You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. Senate Democrats are all but powerless to keep Judge Amy Coney Barrett off the Supreme Court. Barrett was questioned about abortion rights, Obamacare, guns at election disputes. She declined to answer questions on some issues she has expressed personal opinions on in the past, such as abortion rights, or on what she would do recording other matters likely to come before the Supreme Court. My guest is Harold Crant, a
professor at the Chicago Kent College of Law. What did we learn about Judge Barrett from the hearings? We've learned very little about Judge Barrett that We've mostly learned that the centers are using this nomination process as a way to reach the American people and influence them for the election. That's what they focused on, and both Republicans and Democrats are using spin to try to get voters on their side. Judge Barrett has refused to answer numerous quess Gin's about
many different topics. Has this become the norm for Supreme Court nominations hearings or is she taking it even a step further? Unfortunately, she's very close to the norm. I mean, the perfecting the art of the non answer is something that she's taken, perhaps to a different level, but we've seen that in the last several nominations, and unfortunately, in this age of partisanship, UM, the non answer is the one that gets by and doesn't antagonize any of the
senators who are asking questions. There are a couple of clues that have come through. To give you one prominent example, Judge Barrett said that the president of Brown versus Board of Education recognizing that separate is not equal is entrenched into our system, has been accepted, and she would never be second guest uh. And she refused to do that
for ro versus Wade. She said that despite the fact that the court has reconsidered it an affirm ro versus Wade, the fact that there's so much discussion about it means that it's not entrenched. And so her theory, which a little bizarre, is that if the president is accepted, there's no reason to re examine it, which of course is obvious. But if it's not accepted, then you can re examine it.
So her her answers, even in contrast to those UH, now Justice Kavanaugh, just a couple of years ago, suggests a willingness to reconsider ropersts way, So I would consider that the biggest crewe that she left dropped today in discussion so far. She talked with Lindsey Graham at the beginning about precedent and what she calls a super precedent. First of all, is super precedent something you teach in law school nowadays? So super president is not something that
we have historically taught her that knew anything about. And indeed, just as Kavanagh used the expression president on precedent, which I had not been aware of until he used to. And so what these jurors are do when you're trying to suggest that there are some presidents, yes, that we should re examine, and some presidents that are beyond reproach.
And there is a consensus in the academy and probably amongst the Court, that the justices should be willing to reconsider constitutional precedents, more readily the statutory precedents, because Congress can always change a statutory interpretation by the Court that they disagree with, and Congress can't do that with the Court's interpretation of the Constitution. What do you think of the fact that she was willing to say that Casey
was precedent but not Roe v. Wade. My interpretation of our answer is suggesting that despite Casey, there's still so much discussion and so much handwringing about the status of Casey and roversus way that it's not entrance precedent, which to me was a clear signal. Maybe not in the first case you hear is, maybe not in the second, but at some point she would be willing to overturn Roe versus Weight itself. Have you ever heard that definition
of precedent before? Again, it makes no sense to me at all, because the point is if it's a circle, um, it's it's likely because if people have then are willing to overturned precedent, suddenly it becomes eligible for overturning, which is no rule at all. So her rule of star discisis or precedent is far weaker than others on the court, even weaker than that of the least that professed, you know, by Justice kav and not just a couple years ago.
Maybe she misspoke, but it seems sound to me as if she said, if it's a controversial precedent, it's fair game. Let's go on to Obamacare, And she has written about Justice Robert's opinion in Obamacare and criticized it. What do you take away from what she said about any case of Obamacare coming before of her. But she clearly indicated that she would not recuse herself, and I don't think the rules currently would force her to recuse herself at all.
She did give a little bit of clue um by saying that the precise issue that would be before the Court in early November, right after the election, dealing with Obamacare, has to do it with the constitutional a doctrine called severability, which asks how do you ascertain congresses underlying intent if one part of the statute is deemed unconstitutional? And that
really on that issue hangs the fate of Obamacare. And she said, look, that wasn't that issue when I wrote the article, um, and I've done no writing on it. It's a separate issue. And if I'm on the quote and the issue comes up, I'm gonna have to grabble with it or for the first time. And that's something that suggests at least that she is not perhaps made up her decision, and that her writings would not convince
her that she should vote to hold unconstitutional. I'm skeptical, but that's at least a two leaf from what she said in the hearings. I've been talking to Professor Harold Crent of the Chicago Kent College of Law. What was your take on her description of when she would recuse herself from a case. Isn't it up to the justices themselves to decide that there are some clear directives in terms of like financial um involvement that would require a
judge too accuse themselves. I believe there's also a would if here had been involved in the case previously. As for instances executive branch officers, so we've had justice since we accuse themselves when they hear a case that challenged something in which they were involved in the they were
in the Justice Department. But there is a wide ray gray area, and so what I think she was saying, and I think with some justification that at least the examples suggested to her by the senators were in that gray area, fact specific and likely she wouldn't have to
um recuse yourself. I'm the one issue that was raised um which said some lights on this is she's been asked several times whether she promised the President to rule in a particular way on a given case, because that, of course, is what President Trump has made it seem like. And she clearly stated that that was not the case, um,
because that would have strengthened the case for recusal. But on the question of the constitutionality of Obamacare, or what would happen if there was a challenge to President Trump's um election come November, she clearly said, I have made no promises, I'd have no pre commitments about ruling in any way on those cases, which again would signal that she doesn't believe she would ever need to recuse herself
in those settings. I remember that Justice Scalia refused to recuse himself from a case involving Cheney, even though he was friendly with Dick Cheney and had gone hunting with him. Even there's no one the chief Justice is not looking at the Justice and saying, oh, you have to accuse yourself in this case. No, that's that's right, And and um, again one could an issue might arise, But I don't think this this particular set of circumstances dictates a need
to uh for any kind of recusals. So I do think that Judge Barrett was on strong ground and thinking, you know, and saying or expressing her belief that, yes, you might have to accuse yourself in in some cases. For instance, that there was a case in which she was involved in the Seventh Circuit Um, but and just because of this politically charged atmosphere near an election, I don't think that necessarily would force your hand to accuse yourself from any kind of controversial case. And about in
President Trump or involved in Obamacare. At one point I believe it was Senator Durban was asking her about just as that she took part in at the Seventh Circuit, and in one decision she was in dissent in saying that she thought that a felon should have the right to own a gun. Her rulings on the Seventh Circuit are comprehensive that they haven't touched upon many of the
constitutionally charged issues of the day. And one of the cases that she has ruled upon, she did sent it in a case in which um the court held that a non violent felon did not have the right to possess a gun, and she thought that as an individual right back in sevente she believes the Second Amendment is an individual right that should give a wide ambit or live possibility for people to then enjoy that right, even
felons who are non violent felons. Um, So that she signaled they're a very strong interest in maintaining the robust Second Amendment. And of course, um, the Republicans were delighted to highlight that as a way of trying to embrace people who like guns in this country to vote the Republican come um the election. So you know, you might ask yourself if if there's a Second Amendment right to for felons to own guns, then shouldn't there be a
right to vote as well? Um. Whether she would agree with that statement, Um, I'm not sure, but we may find out in the future. Justice Scalia was her mentor, and she has said that she will follow in Justice Scalia's footsteps. She says, you're not going to get a Justice Scalia, You're going to get a Justice Barrett. Yes, she's an originalist, a textualist. What does that tell you?
It tells us not everything, but tells us that, like Justice Scalia, should be very skeptical of sort the broad, open ended rights that have been read into the due process clause, namely the right to privacy and the right to body, the autonomy because if the right was not clear to the articulated it at the time of the framing, should be more skeptical. I mean, there are open ended constitutional provisions like free from an unregional search and seizure.
You have to read some kind of evolution into those words, because you know, there was no Internet back in the
time of the of the framing. And so like Justice Scalia, she might be turned out to be more liberal in some criminal justice questions, but when you come to rights, she'll be very strict and trying to understand what a right is and it was not, so she would probably tend to be skeptical of many of the rights that the course over the last thirty years have recognized, such as again by all the autonomy, privacy and we're not sure, but she might be very skeptical about affirmative action as well.
And as we all know, there has been some very close votes in affirmative action over the past couple of years. Justice Scalia thought that Row was wrongly decided he was in the minority in the ol burgher Feld case, the same sex marriage case and he voted against Obamacare, So can we take it that she will be on the same side of those issues or is that drawing too much? Clearly clearly through aspect to the rights of gays and transgender there are reasons for deep concern. Her view would
be that the protection clause should be quite limited. Her view of marriage is quitely probably right, very historically based, so her votes would likely line up with Justice Scalia in that case. And I think the Obamacare case is really different head to do with the scope of the commerce plause and part over um the insurance markets, and I don't think that lines up as neatly with in
terms of Justice Scalia's originalism. But what I do think um that she, even more so than Justice Scalia, would probably believe in a vigorous free exercise clause, which was probably suggests that the government cannot play sort of mainstream
responsibilities and obligations on on those exercising religious rights. So what happens with the conflict between the taxing power in a church, or if there's a conflict between a right of non discrimination against days or people of different different races against the religious rights, she might change the scales and vote that that the government cannot impose such burden upon those exercising the religions, and that would, I think cause much disruption in our society. How do you think
she handled the questions? And you know her demeanor, She's very calm, she's very self assured. Um, she's she's clearly confident in her own abilities and in her experience that you will be able to handle the job. And in terms of traditional notions of qualifications, she's clearly a well qualified for the job. But she will move the court. She will move the court even more to the right
than it is now. And part of the skirmishing that I saw both yesterday today is preparing the ground for a possible fight over the structure of the Supreme Court in the future. About whether, with these last two appointments and the sort of hypocrisy and the Republicans, if the Democrats get the Senate and the presidency, will they try to alter the Court in some way to sort of fight back against this sort of incursion or seeming incursion
by the Republicans. Any final thoughts, how much of the question today by both Republicans and Democrats, say by Senator Cruz on Republican size Senator white House on the Democratic side, they didn't even ask questions of Judge Barrett, and they clearly we're using their time as is their prerogative to talk directly to the American people about on the one hand, Republican values of religion and gun ownership, on the other hand, with Democratic values of Affordable Care act Um and so forth.
Because again, this is just so clearly an opportunity to try to influence voting as it continues up until November, so that in some ways even the senators themselves didn't take this seriously as an opportunity to grill and find out more about Judge Barrett. The way these hearings are now structured and the way the nominees don't answer questions, is there any point in having these hearings anymore. It's a great question, and the function of the hearings has
changed over time. Um. I think there is a necessity to do for a period, to do due diligence to find that what somebody has written, to find out if there's any kind of with of impropriety in their background. So it's the idea of having something a waiting period to allow for investigation. I think it's critical, but I'm not sure that there's much function in these sort of show boat um hearing after the nomination, because again, what we've seen so far is pure posturing by both sides.
Thanks for being on the Bloomberg Law Show. How that's Harold cran To, professor of the Chicago Kent College of Law. Monday session was primarily opening statements. Barrett cast herself as a judge who puts her personal preferences aside, saying the public shouldn't expect courts to resolve policy disputes or make value judgments, and that judges should not try to do so. My guest is Professor Carl Tobias of the University of Richmond Law School. What did you think about the opening statements?
And let's start with the Democratic senators basically talking about what affect her nomination would have on the Obamacare decision coming up after the election. Well, they did talk about that because that's funding center for the elections that are coming up, But I think more fundamentally, they said that basically what Republicans were doing with this nomination was directly opposed to what they did in sixteen. As a matter
of principal and I think they're correct about that. Basically that Senator McConnell and all the Republicans wouldn't allow Marrick Garland UM, to distinguished nominee of President Barack Obama, to even have a hearing or even meet with him, given the fact that it was ten months before UM the
end of his presidency when the vacancy occurred. Here, we're twenty two days away from the election, and so as a matter of consistency, m Republicans have been inconsistent, and so I think Democrats are questioning legitimacy of what is going on. Secondly, that it's been extremely rushed to move forward. UM. The President didn't consult at all with any of the UM Democratic senators as best we can tell, and so
I think they had those kinds of questions. But then they went on to talk about UM, as you say, the Affordable Care Act, and basically I think they're concerned about how she might address that issue that's before the court in short order, UM after the elections, and they're concerned about being in a pandemic and UM having people lose their health care, especially people with pre existing conditions.
So UM, I think that's what they're talking about and I think a number of them also said that they would intend to talk about her record, uh and how she might resolve certain cases, or judicial philosophy, those types of things. What was the focus of the Republicans that the Republicans have as much of a centered approach as the Democrats did. Well, a number of them talked about and accused Democrats of using a religious test for office, uh, which I think is a perversion of what Democrats have
been trying to do with all nominees. So I don't think that was persuasive for people who actually watched the arns Um over time, as I did. And I think though that all the Democrats seem to be saying they will not in any way do that. But UM, we'll see what the questions are. And it's a very delicate, difficult kind of issue, um to find out what a nominee philosophy might be in a particular case. UM. And so it may be that certain cases touched on questions
of religion. Of course they do. Religious freedom is on the docket in many cases before the Supreeding Court. So I don't know that they can probe that without that kind of accusation coming um. From the Republicans. But even in the earlier hearing for the Seventh Circuits for Judge Barrett when she was a nominee, I don't think anyone really meant to in any way impose some kind of religious tests and violation of the Constitution. Um. So they're really talking past one another. Um it seems to me.
Uh So hopefully they'll be less partisan sniping and maybe more attention to the process as we go forward. But again, UM, I do think, uh that it is rushed, and we'll see how the questioning goes and what the nominee's answers are.
But there was certainly a lot of uh back and forth between um, the senators on both sides of the aisle on a whole number of issues, some of which seemed expraneous and some of which hopefully would go to the kinds of issues that should be raised here about how the nominee views for responsibility as a life tenure member of the Supreme Court. Now, let's talk about her statement. She said that courts should not try to make policy decisions. That's for the political branches. What did you make of
that statement of hers? Well, that I suppose that's one thing that Democrats might ask her by what does she mean? Because, as I think they pointed out, the policy that was made was the A C A which passed, and despite President Trump and Republican efforts to gut that legislation, they can't get it through Congress. And so now despite their protestations, they're seeking a verdict from the Supreme Court that would change that UM. And so they're doing the very thing
they accused Democrats doing, using the courts for policymaking. So I think we'll have to see what she really means by that UM. And you know, in fairness, I think she's saying, UM, we don't make policy. But of course that's just not true, UM, because they will make policy. If they were to find the UM law unconstitutional and strike it down, it will make policy one way or another for under thirty million people who have pre existing conditions. And so UM, we'll see if they probe that I
expect they will. Supreme Court nominees are often asked about respect for precedent. Explain why that's particularly true of Judge Barrett Well. I believe she's written a number of law view articles about precedent, and UH has taken a view that he's different from some present justices on the Supreme Court. She seems to, according to her critics, respect precedent less
than UM. Other justices on the Supreme Court, and certainly Justice Thomas has been a pretty strong critic of UM precedent UH and saying most most prior decisions are up for re examination. UM. Chief Justice Roberts UM, I think is UM more measured about that and says we ought to be very cautious for reasons of institutional respect from the citizens when we change a precedent, especially one that's
long standing. UM. But more specifically, examples would be ro versus Wade, or there was some mention of UM privacy cases like UM the case from Connecticut in the sixties, UM that recognize the notion of a right to privacy UM. But UH, and of course Brown versus Board UH, and a number of other precedents. And so I think there's a feeling amongst some Democratic senators that UM, she is less concerned about honoring longstanding precedents, or to flip it around,
more willing to overturn them. So UM, those questions will be asked. Explain this, Carl, Because the Supreme Court does overturn its own precedent. I mean, we saw that a couple of years ago when they overturned to think, a forty year old precedent in the Union case. It just seems as if all this stress on precedent is is sort of um elusive because they do overturn their own precedent. Well, they do, but you know, there ways to talk about that, and I think one measure is how long the president
has existed. In other measures, how strong the precedent is. Uh. There's some discuss of something being a super precedent and that type of thing, but there are notions, especially of times passage, um, how central that um president is to jersprudence. UM. But you're right. I mean, if if the Court's made earlier decisions that's wrong, then I think justices some feel there should be changed. You don't cling to precedents that
now are completely outmoded. Um. But Chief Justice Roberts, I think would say you shouldn't too readily overturned precedent, especially a new precedent, say that's a couple of years old, uh, or make a dramatic change only because the composition of the court has changed. For example, President Trump has will likely UM appoints three new justices. Just because the courts composition is change doesn't mean that president should be struck
down without seriously considering them. She was a clerk of Justice Scalia and said that she would follow Justice Scalio. What does that mean? Well, that's that's a difficult notion, because, UM that he wrote decisions and joined opinions, you know, for three decades and many areas, and I think she would most well, I wouldn't put words in their medipor here. I think they'll ask her about that. But UM, I think the notions of originalism and textualism and those types
of ideas. Perhaps, and maybe the notion we're talking about earlier that UM judges shouldn't be policy makers. Um, but there were many areas in which you know, he made decisions, and I don't think she was saying that she would necessarily follow every one, UM, but kind of the general. But we'll hear about that. I assend that there'll be questions that go to that. Just give me your basic take on her statement. What was she trying to get at? What impressed you? What didn't impress you? Well, I she
really didn't say a whole lot. That's new. UM. We knew she had said earlier in the Rose Garden that she UM was you know, a proponent and took views very similar to Justice Celia her mentor, and she said specifically, UM. And so then the question is you know how that will play out. She also said clearly again today as she had earlier, that she doesn't think judges or policymakers. But as I said, I don't think that tells us very much, because they make policy in all kinds of
areas and deciding all kinds of questions. So then the question is how senators will question her and drilled down and be more specific and maybe bring up particular areas of law or how she intends to apply rules. That's the president. I think all of those questions are legitimate ones that will be asked and try to move from the more general statements that she has there UH to something more specific and concrete. Thanks Carl. That's Professor Carl Tobias of the University of Richmond Law School