UPDATED: 6:50 a.m. ET, Oct. 15 —
Sen. Kamala Harris gave Amy Coney Barrett an expert level history lesson on the history of America suppressing Black people‘s ability to vote, and the judge seemed ambivalent to it all. It was another telling moment during the week-long grilling by senators during Barrett’s Supreme Court confirmation hearing before the Senate Judiciary Committee on Capitol Hill.
During Harris’ second straight day of questioning Barrett on Wednesday, the Democratic vice-presidential nominee ran down a litany of facts surrounding both the Civil Rights Act and the Voting Rights Act (VRA) of 1965, two laws that were designed to grant Black people the right to vote in America. She brought them up because Democrats have been laying the foundation to establish Barrett’s likelihood that she will help overturn several existing laws once she gets confirmed. Notably, the VRA along with the Affordable Care Act and the Roe v. Wade decision have all been under attack by the same Trump administration that nominated Barrett.
Therefore, Harris decided to give Barrett a history lesson about what she would be destroying. Harris cited Supreme Court Chief Justice John Roberts‘ opinion in a ruling on a controversial case that racial discrimination still exists at the polls. In the decision for Shelby County v. Holder — a case that challenged the constitutionality of provisions in the VRA — Roberts wrote that “voting and voting discrimination still exists. No one doubts that.”
It was in that context that Harris simply asked Barrett if she agrees with that opinion.
Barrett, however, declined to answer, promoting Harris to repeat the question.
“Senator Harris, I will not comment on what any justice said or whether an opinion is right or wrong or endorse that proposition,” Barrett said.
Harris pressed her: “Well, I’m asking you, do you call it a proposition or a fact? Are you saying you do not agree with the fact?”
After another non-answer, Harris asked again directly: “Do you believe that voting discrimination exists in America in any form?”
Finally, Barrett said, “I’m not going to express an opinion because these are very charged issues. They have been litigated in the courts, and so I will not engage on that question.
Watch the tense and unfortunate exchange below.
Barrett’s non-answer left a mad taste in the mouths of social media users who promptly pointed out what they deemed to be red flags about the judge. If an all-but-confirmed member of the highest court in the land can’t openly admit that racial voter discrimination exists, chances are that same person will be more than a willing participant in helping to overturn, reverse or completely gut any laws on the books that provide safeguarding for such discrimination — like the VRA.
That line of questioning followed Tuesday’s intricate mix of a campaign speech from Harris that drew on her prosecutorial acumen in order to effectively bring attention to what she described as Republicans’ true motivation behind Barrett’s eleventh-hour nomination to the U.S. Supreme Court.
The Democratic vice-presidential nominee on Tuesday evening contrasted Republicans “rushing” to confirm Barrett with how they have also been delaying passing a bill that would grant financial relief to taxpayers reeling from the devastating economic and social effects of the global coronavirus pandemic. Harris said that’s because they want Barrett to help decide the election’s results should it be contested and go all the way to the Supreme Court.
“Republicans are scrambling to confirm because they need one more Trump judge before Nov. 3,” Harris, a member of the Senate Judiciary Committee, said.
Harris then turned her attention to the ACA, President Barack Obama‘s signature healthcare law more commonly referred to as Obamacare, underscoring the repercussions of Republicans making good on a threat to fully repeal it.
Finally addressing Barrett directly, Harris rattled off the litany of consequences such as no protections for people with pre-existing conditions and “more than 20 million people losing insurance at the worst possible time.”
Harris then called out Barrett for opposing Democrats’ efforts in 2016 to confirm Obama-nominated Merrick Garland to the Supreme Court. Harris explained that “Trump promised to name judges to tear down the ACA.”
Harris reminded Barrett that after he nominated Barrett, Trump tweeted about Obamacare’s potential demise.
“The horrifying truth is … they’re fighting to take health care away from people in a pandemic,” Harris said. “The reality is right now he’s asking the Supreme Court to take it away, period.
Barrett said she did not “recall hearing about or seeing such statements.”
That’s when Harris went into prosecutor mode and set up Barrett with a series of questions that centered on whether the judge ever considers the feelings of the people in her cases. When Barrett said that every case requires her to do so, Harris mentioned how ending Obamacare would allow insurance companies to “discriminate” against Black and Latino and cited Covid-19 statistics showing how the coronavirus has disproportionately affected people of color.
“Will you consider the feelings of these people?” Harris asked Barrett. “What weight would you give that?”
Barrett responded in legalese jargon that proved to be a non-committal answer.
“Consider how the destruction of [Obamacare’s] protections would have a devastating effect,” Harris appealed to Barrett.
But Harris wasn’t done cross-examining Barrett.
She smoothly transitioned to the trailblazing legacy of Justice Ruth Bader Ginsburg, whose Supreme Court seat Barrett is aiming to replace. Harris told Barrett, who is ardently anti-abortion, that Ginsburg “was far more forthcoming” in her confirmation hearing nearly three decades ago.
“It is essential to women’s equality with man that she be the decision-maker,” Harris said to Barrett while quoting Ginsburg’s own words during her confirmation hearing in 1993. “If you impose restraints that impede her choice, you are disadvantaging her because of her sex.”
Harris then went into Barrett’s own record Roe v. Wade — the landmark Supreme Court case that legalized a woman’s right to have an abortion — including an article the judge wrote suggesting she believes the case is susceptible to being overturned.
Ginsburg was “straightforward enough” and “essential to women’s equality,” Harris ended with. “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 health care decisions.”
Throughout what at times has been a circus-like election season, Harris has consistently displayed her mastery of political acrobatics. From fending off ridiculous “birther” conspiracy theories to more than holding her own on the debate stage, the senator from California has landed firmly on her feet each time. It was in that context that Harris needed to walk a tightrope of sorts during her questioning of Barrett on Tuesday.
Harris gained plenty of political capital for her pointed line of questioning during Brett Kavanaugh’s Supreme Court confirmation hearing in 2018, using that momentum to help launch her presidential campaign early last year. But while she was able to flex her prosecutorial skills while interrogating him about allegations of sexual assault, Nazis in Charlottesville, the Mueller investigation and more, critics all but labeled her an “angry Black woman” in an attempt to discredit her.
This time around, the stakes are even higher as Harris — the Democratic vice-presidential nominee — needed to be aware of possibly turning off swing-state voters who Joe Biden’s campaign is looking to attract in the weeks leading up to Election Day as the hearing inevitably turns to Barrett’s faith, a topic that pro-choice activists say will compel the judge to help overturn Roe v. Wade and make abortion illegal.
Notwithstanding, Barrett’s confirmation to the Supreme Court could also end up helping Donald Trump win re-election should the results of the election be contested and ultimately make its way to the Supreme Court, like what happened two decades ago. If that’s the case again, Trump — who will have confirmed his third Supreme Court Justice in just under four years — will have successfully stacked the nation’s top court with conservatives who will undoubtedly rule in his favor.
In addition to all that, Harris will be trying to convince her Republican-led fellow Senate Judiciary Committee members to delay the hearing until the election has been completed in order to allow the will of the people to dictate who gets to choose the person who fills the seat of Ginsburg, who died last month.
Barrett also has a reported membership to an alleged religious and pro-life cult called People of Praise. That, critics say, make her an apparent threat to the landmark Supreme Court case that legalized a woman’s right to have an abortion. That is to say nothing about her use of anti-LGBTQ rhetoric.
For the record, civil rights groups have condemned Trump for nominating Barrett, saying it undermines the democratic process since voting had already gotten underway by the time the announcement was made.
Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc., called out the same Republicans who wouldn’t allow President Barack Obama‘s Supreme Court nominee to have a hearing four years ago being fine with doing so now.
“In 2016, Senators refused even to consider President Obama’s nominee to fill a Supreme Court vacancy that arose when Justice Scalia died in February of that year, deeming it too close to the presidential election,” Ifill said in a statement before continuing later. “Yet, now that the President shares their partisan affiliation, many of those same Senators have reversed course — promising to vote on President Trump’s nominee even though the general election is already underway. Our constitutional democracy depends on those in power acting with principle. For the Senate to disregard a rule it created just four years ago because of partisan considerations demeans both the Senate and the Court, and it is an assault on the rule of law itself.”
Even Barrett once explained why she believed — at the time, at least — that it is wrong to confirm a Supreme Court Justice during an election year.
Going into her questioning Tuesday, Harris was likely expected to work her Black woman magic without, you know, being “too” Black. It was only in August when Trump harkened back to Harris humbling Kavanugh and called the senator “a mad woman” who had “such hatred with Justice Kavanaugh,” saying she “was the angriest of the group” of “seriously ill people.”
Chances are that Trump will be trying to pin those same unfounded labels on Harris regardless of the confirmation hearing’s outcome, stoking his usual flames of sexism and racism that could help to decide the 2020 election.