October 14, 2020
If two things were clear by day three of the confirmation hearing for Amy Coney Barrett, they were that she was delivering an almost flawless performance, and that Democrats were insistent on injecting social policy issues into the courts — the very reason the confirmation process is so contentious to begin with, and one which shows why we need an originalist like her in the first place.
Over marathon hours of questioning, Barrett continued to shine, deftly avoiding Democrat attempts to use her as a talking point and prop, while showing integrity, honesty, and forthrightness with her answers. Senator Ted Cruz (R-Texas) summed up well where things stand at this point in the hearing: “With two full days of questioning, we have seen that our Democratic colleagues have very few questions raised about Judge Barrett’s qualifications… They have largely abandoned even trying to make the case that Judge Barrett is anything other than exceptionally well-qualified to serve as [a] justice.”
Here are six other highlights from day three:
Barrett Affirms the Right View of Standing
Telling Senator John Cornyn (R-Texas), “[s]tanding means that you cannot just come to court and say because you dislike Senator Lindsey Graham’s (R-S.C.) fetal pain [bill], “You cannot just walk in and say I do not like that and I think it is unconstitutional. Standing means that you have to have suffered what the law [says is] a concrete injury so it has to have affected you in some way. So, that means that there are real litigants with a live controversy,” not “policy disagreements only.” As the courts have become bloated with cases from everyone who doesn’t like a certain law, this view of a limited judiciary is very welcome indeed.
Barrett Pushed Back When Senator Dick Durbin (D-Ill.) Tried to Corner Her on Gun Rights
Senator Durbin: “[Y]ou concluded that any felony can take away your right to vote, but only a violent felony can take away your right to purchase an AK-47.”
Judge Barrett: “[W]ith respect, that is distorting my position. What I said, which is what Heller said… is that the right to vote is fundamental… We possess it as part of civic responsibilities for the common good… [I]t is a distortion of the case to ever say that I said voting is a second-class right. that is not what it means.”
Senator Mike Lee (R-Utah) Humorously Highlighted the Very Serious Importance of Religious Freedom
“I am a member of the Church for Jesus Christ of Latter Day Saints,” Lee said, “and we have been no strangers to persecution even in this country. On October 27, 1838, the governor of Missouri ordered us exterminated. It was not nice, but I assume he had reasons. He believed we were heretics, but we try to be nice heretics, and it was not until the late 70s that the governor of Missouri lifted that ban. I am sure [Senator] Josh Hawley (R-Mo.) would have lifted it for us had it not been lifted by then.”
Senator Amy Klobuchar (D-Minn.) Claims to Not Like Activists Using the courts!
Senator Klobuchar indicated she doesn’t like when people “conscript courts into helping them win battles they have already lost fair and square.” And yet, the Left has been doing this for 60 years! As we all know, they have been conscripting the courts into making social policy for decades, asking them to do any dirty work that they couldn’t pass democratically.
Judge Barrett Reminds Senator Coons: “I have my own mind”
After Senator Chris Coons (D-Del.) tried to frame the late Justice Scalia’s writings a certain way and corner Barrett into signing off on his interpretation of every sacred cow social issue the federal judiciary has protected over the past 60 years, Judge Barrett had to remind him that she’s her own woman and can think for herself: “I hope you’re not suggesting that I don’t have my own mind or that I could not think independently,” she told him.
Senator Hawley Warns Against Attempts to “Bork” Barrett, Highlights Democrat Hypocrisy, and Talks About Religious Freedom
Harkening back to his childhood, Senator Hawley recalled how nominee Robert Bork was smeared and blocked during the confirmation process, an event so well-known it created the term “borking” — and noting how this has lasted with us until today: “What we have seen today is an attempted “borking” of Judge Amy Barrett. The problem is, they don’t have anything in your record that they can use, to… suggest that you’re going to somehow fundamentally chang[e] America… so [they] take Scalia’s record, [they] distort that, and then [they] attribute it to you… Frankly, I think it is demeaning and insulting.”
When asked about judicial activism, Barrett expressed why we all admire her and why we need her on the bench: “The danger of a court doing that is to subvert the will of the people… if judges… bend [statutes] to the judge’s idea of what would be good public policy, then it deprives the people of the chance to express the policies that they want through the democratic process.”
Later, Hawley noted the “special solicitude” given to religious freedom under the First Amendment (which the Supreme Court has affirmed). Referring to the First Amendment problems with some of the current coronavirus restrictions, Hawley pointed out: “We see many challenges to the rights of religious organizations, [and] their ability to meet freely… we see many instances around the country were religious organizations are treated… less favorably than secular counterparts, whether that’s casinos, and gyms, or… liquor stores, you name it. But so many different executives around this country have chosen to single out churches for disfavor, whether it is in the COVID context… or other contexts… the Supreme Court’s doctrine on this… about the rights, and the special solicitude, in the Court’s words, for religious organizations, is very, very significant.”
We should conclude as Hawley did: “There’s nothing wrong with confirming to the Supreme Court of the United States a devout, Catholic pro-life Christian.”
Tony Perkins’s Washington Update is written with the aid of FRC Action senior writers.