On Tuesday, Judge Amy Coney Barrett successfully navigated most of the questions at her confirmation hearing with the typical dodges and refusals to answer about pending cases that have long been the standard for nominees before the Senate Judiciary Committee.
The fact that she was nominated by an especially corrupt president who engages in patent abuses of power, though, made that dance a bit more complicated.
Nowhere was this more evident than during Sen. Cory Booker’s questioning. Booker began easily enough by asking Barrett to condemn white supremacy, which she did. He quickly moved on to demonstrating just how impossible it is to accept a position from Donald Trump without debasing yourself. Specifically, Booker asked Barrett whether presidents should commit to a peaceful transfer of power. Trump last month refused such a commitment and has repeated that stance since. Barrett, proving her loyalty to the man who appointed her, refused to answer the question. “Well, Senator,” she said, “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 this is a political controversy right now, as a judge I want to stay out of it.”
After Barrett refused to say that a president should commit to the peaceful transfer of power—not a controversial thing to commit to, it should be noted—Booker went on to a slightly less egregiously horrible but still previously unthinkable topic, asking Barrett if Trump could pardon himself for crimes he has committed or may yet commit. Barrett, again, refused to answer, saying that she may have to “resolve” such a case in the future. Finally, Booker asked her whether the president had an obligation to disclose hundreds of millions of dollars of potentially foreign loans in consideration of the emoluments clause of the Constitution. Again, no answer.
Here is the footage of the full exchange:
And here is the relevant text:
BOOKER: Do you believe that every president should make a commitment unequivocally and resolutely to the peaceful transfer of power?
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 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.
BOOKER: So, Judge, I appreciate what you’ve said about respecting our Founding Fathers and originalism. It is remarkable that we’re in a place right now that this is becoming a question and a topic. But I’m asking you, in light of our Founding Fathers, in light of our traditions, in light that everyone who serves in that office has sworn an oath … to preserve and protect and defend the Constitution of the United States, I’m just asking you, should a president commit themselves, like our Founding Fathers … like the grace that George Washington showed, to the peaceful transfer of power? Is that something that presidents should be able to do?
BARRETT: Well, one of the beauties of America from the beginning of the republic is that we have had peaceful transfers of power. And that disappointed voters have accepted the new leaders that come into office, and that’s not true in every country. And I think it is part of the genius of our Constitution and the good faith and goodwill of the American people that we haven’t had the situations that have arisen in so many other countries where there have been, where those issues have been present.
BOOKER: Thank you, Your Honor. Do you think the president has the power to pardon himself for any past or future crimes he may have committed against the United States of America?
BARRETT: Well, Sen. Booker, that would be a legal question, that would be a constitutional question, and so in keeping with my obligation not to give hints, preview, or forecasts of how I would resolve the case, that is not one that I could answer.
BOOKER: Well, I think I agree with you. That it is an issue right now. Something I never thought would be an issue before. But it is an issue that our president may intend to pardon himself for future crimes or past crimes. If a president is personally responsible for several hundred million dollars in debt while he’s in office, potentially to foreign entities, do you think he has a responsibility to disclose who his lenders are? Especially given the emoluments clause?
BARRETT: Well, Senator, there’s litigation about the emoluments clause. I think it was in the 4th Circuit, I don’t know where it stands, but that clearly is an issue that’s being litigated and one present in court is not one on which I can offer an opinion.
This was how Barrett spent much of the day: refusing to answer questions from Democratic senators about previously unthinkable abuses of power. Prior to Booker’s questioning, the most notable example of this came via an excellent cross-examination by Sen. Amy Klobuchar, during which Barrett refused to say whether or not voter intimidation is a crime. Her excuse, again, was that this is a live controversy, presumably given Trump and his campaign’s calls for an “army” of poll watchers on Election Day and the voting disruptions by Trump supporters we’ve already seen in early voting. Klobuchar, a former prosecutor, clarified for Barrett that yes, indeed, voter intimidation is a long-recognized federal crime, helpfully citing the statute for her.
Here is the video of that exchange:
And here is the mind-boggling text:
KLOBUCHAR: Is it illegal to intimidate voters at the polls?
BARRETT: Sen. Klobuchar, I can’t characterize the facts of 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.
KLOBUCHAR: I’ll make it easier: 18 U.S. [Code §] 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 persons to vote.’ This is a law that has been on the books for decades.
So Barrett thinks it’s an open legal question whether or not voter intimidation is a crime, she can’t say whether or not a president should commit to a peaceful transition of power, and she also can’t say whether or not a president can pardon himself or must disclose hundreds of millions of dollars in possible foreign loans.
Ultimately, if we learn anything from these hearings, it is that Barrett won’t say anything that could undermine her chief patron, Donald Trump.