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Can Trump Delay Election or Reject Peaceful Transition of Power? Amy Coney Barrett Refuses to Say

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Supreme Court nominee Amy Coney Barrett faced 11 hours of questioning in the Senate Tuesday but refused to provide clarity about her views on the Affordable Care Act, Roe v. Wade, voting rights and even if President Trump could delay the election. Republicans are racing to confirm the 48-year-old federal judge before Election Day, which would give conservatives a commanding 6-3 majority on the high court. We air highlights from the marathon session.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Supreme Court justice nominee Amy Coney Barrett faced questions for about 11 hours on Tuesday as Republicans race to confirm her to a lifetime seat on the Supreme Court prior to Election Day, which could give her a chance to take part in oral arguments in a critical case on the Affordable Care Act scheduled for November 10th. If Barrett is confirmed in time, she could also be a deciding vote if the Supreme Court is asked to hear a dispute over the presidential election.

Democrats say the Supreme Court seat left open by the death of Ruth Bader Ginsburg should be filled by whoever wins the presidential election, since early voting has already begun and over 10 million people have voted. In 2016, Senate Republicans refused to hold confirmation hearings for President Obama’s pick to replace the late Antonin Scalia on the court since it was an election year. Amy Coney Barrett is a conservative judge who once clerked for Scalia, who she has described as her mentor. If confirmed, the 48-year-old Barrett would give conservatives a 6-to-3 majority.

On Tuesday, Barrett refused to pledge to recuse herself in an election case, when questioned by Democratic Senator Chris Coons of Delaware.

SEN. CHRIS COONS: Given what President Trump said, given the rushed context of this confirmation, will you commit to recusing yourself from any case arising from a dispute in the presidential election results three weeks from now?

JUDGE AMY CONEY BARRETT: I would consider it — let’s see, I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people. So that would be on the question of actual bias. … And what I will commit to every member of this committee, to the rest of the Senate and to the American people is that I will consider all factors that are relevant to that question, relevant to that question that requires recusal when there’s an appearance of bias.

AMY GOODMAN: Amy Coney Barrett also refused to say whether a president should commit to a peaceful transfer of power. Her comment came during a series of questions from Democratic Senator Cory Booker of New Jersey.

SEN. CORY BOOKER: I want to just ask you very simply, and I imagine you’ll give me a very short, resolute answer. But you condemn white supremacy, correct?

JUDGE AMY CONEY BARRETT: Yes.

SEN. CORY BOOKER: Here’s another one. Do you believe that every president should make a commitment, unequivocally and resolutely, to the peaceful transfer of power?

JUDGE AMY CONEY BARRETT: Well, Senator, that seems to me to be pulling me in a little bit into this question of whether the president has said that he would not peacefully leave office. And so, to the extent that this is a political controversy right now, as a judge, I want to stay out of it, and I don’t want to express a view on —

SEN. CORY BOOKER: Do you think that the president has the power to pardon himself for any past of future crimes he may have committed against the United States of America?

JUDGE AMY CONEY BARRETT: Well, Senator Booker, that would be a legal question. That would be a constitutional question. And so, in keeping with my obligation not to give hints, previews or forecasts of how I’d resolve the case, that’s not one that I can answer.

AMY GOODMAN: Before Senator Booker questioned Judge Barrett, earlier in the hearing Senator Dianne Feinstein of California asked her if Trump could legally delay the election.

SEN. DIANNE FEINSTEIN: On July 30th, 2020, President Trump made claims of voter fraud and suggested he wanted to delay the upcoming election. Does the Constitution gives the president of the United States the authority to unilaterally delay a general election under any circumstances? Does federal law?

JUDGE AMY CONEY BARRETT: Well, Senator, if that question ever came before me, I would need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion writing process. So, you know, if I give off-the-cuff answers, then I would be basically a legal pundit. And I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind.

AMY GOODMAN: Democratic Senator Amy Klobuchar of Minnesota asked Barrett about the legality of voter intimidation.

SEN. AMY KLOBUCHAR: Last week, a contractor from outside of my state of Minnesota started recruiting “poll watchers” with Special Forces experience, mm-hmm, to protect polling locations in my state. This was clear voter intimidation. Similar efforts are going on around the country, solicited by President Trump’s false claims of massive voter fraud. … So, as a result of his claims, people are trying to get “poll watchers,” Special Forces people, to go to the polls. Judge Barrett, under federal law, is it illegal to intimidate voters at the polls?

JUDGE AMY CONEY BARRETT: Senator Klobuchar, I can’t characterize the facts in a hypothetical situation, and I can’t apply the law to a hypothetical set of facts. I can only decide cases as they come to me litigated by parties, on a full record, after fully engaging precedent, talking to colleagues, writing an opinion. And so, I can’t answer questions like that.

SEN. AMY KLOBUCHAR: OK, well, I’ll make — I’ll make it easier. 18 U.S.C. 594 outlaws anyone who intimidates, threatens, coerces, or attempts to intimidate, threaten or coerce, any other person for the purpose of interfering with the right of such other person to vote. This is a law that has been on the books for decades. Do you think a reasonable person would feel intimidated by the presence of armed civilian groups at the polls?

JUDGE AMY CONEY BARRETT: Senator Klobuchar, you know, that is eliciting — I’m not sure whether to say it’s eliciting a legal opinion from me, because the reasonable person standard, as you know, is one common in the law, or just an opinion as a citizen. But it’s not something, really, that’s appropriate for me to comment on.

AMY GOODMAN: Senator Amy Klobuchar questioning Judge Amy Coney Barrett. After a dinner break, Democratic vice-presidential nominee Senator Kamala Harris focused part of her time on Barrett’s past comments attacking the Supreme Court’s decision on Roe v. Wade.

SEN. KAMALA HARRIS: In 2006, you signed your name to an advertisement published in the South Bend Tribune. It described Roe v. Wade as, quote, “an exercise of raw judicial power.” It called for putting, quote, “an end to the barbaric legacy of Roe v. Wade.” You signed a similar ad in 2013 that described Roe as, quote, “infamous,” and expressed opposition to abortion. Also in 2013, you wrote an article about Supreme Court precedent in which you excluded Roe from a list of well-settled cases that you said, quote, “no justice would overrule, even if she disagrees,” suggesting, of course, that you believe Roe is susceptible to being overturned. On the 40th anniversary of Roe, you delivered a speech in which you said that the court’s recognition of the right to choose was, quote, “created through judicial fiat” rather than grounded in the Constitution. And during your tenure on the 7th Circuit Court of Appeals, you have been willing to reconsider abortion restrictions that other Republican-appointed judges found unconstitutional.

As the Senate considers filling the seat of Justice Ruth Bader Ginsburg, who was straightforward enough in her confirmation hearing to say that the right to choose is, quote, “essential to women’s equality,” unquote, I would suggest that we not pretend that we don’t know how this nominee views a woman’s right to choose and make her own healthcare decisions.

AMY GOODMAN: Vice-presidential nominee Senator Kamala Harris was questioning Judge Amy Coney Barrett from her Senate office, projected into the Senate Judiciary Committee Supreme Court confirmation hearings, due to COVID concerns. Earlier in the hearing, Vermont Democratic Senator Patrick Leahy asked Barrett about her view on in vitro fertilization.

SEN. PATRICK LEAHY: Do you agree with the St. Joseph County Right to Life, that sponsored the ad, that IVF is tantamount to manslaughter?

JUDGE AMY CONEY BARRETT: Well, Senator, I signed the statement that you and I have just discussed, and you’re right that the St. Joseph County Right to Life ran an ad on the next page, but I didn’t — I don’t even think the IVF view that you’re expressing was on that page. But regardless, I’ve never expressed a view on it.

AMY GOODMAN: Democratic Senator Sheldon Whitehouse opted not to ask Judge Barrett any questions on Tuesday. Instead, he gave a 30-minute presentation on how right-wing groups, including the Federalist Society and Judicial Crisis Network, have used dark money to reshape the nation’s judiciary.

SEN. SHELDON WHITEHOUSE: This is a, to me, pretty big deal. I’ve never seen this around any court that I’ve ever been involved with, where there’s this much dark money and this much influence being used. Here’s how The Washington Post summed it up: This is “A conservative activist’s behind-the-scenes campaign to remake the nation’s courts.” And it’s a $250 million dark money operation.

AMY GOODMAN: When we come back, we’ll speak to Dahlia Lithwick, the Supreme Court reporter for Slate.com. Stay with us.

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Dahlia Lithwick: Amy Coney Barrett May Claim Neutrality, But Her Record Is “Extremely Conservative”

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