Excerpts From Feinstein Questioning of Barrett (High-Resolution Video Links)


Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today continued to question Judge Amy Coney Barrett at her Supreme Court nomination hearing. Excerpts from the questioning follow.

Constitutionality of Medicare

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Judge Barrett refused to say whether programs like Medicare and Social Security are constitutional. These bedrock programs that seniors have relied on for decades have been upheld by the Supreme Court.

Feinstein: “Some have argued that the Medicare program is unconstitutional – well, it’s an unconstitutional exercise in congressional spending power. They believe that the spending power does not exist at all.

In talking about Medicare and Social Security, Professor Mike Rappaport of the University of San Diego Law wrote this: ‘It is worth remembering that these programs would never have taken their pernicious form if the Constitution’s original meaning had been followed in the first place.’

Do you agree with originalists who say that the Medicare program is unconstitutional? And, if so, why?”

Barrett: “I’m not familiar with that article by Professor Rappaport, so I don’t know what reasoning he advances for claiming that the spending power as exercised in things like the Medicaid provision would be unconstitutional.”

Feinstein: “Well, it’s in Law and Liberty, July 23rd, 2015. But, the question is, do you agree with originalists who say that the Medicare program is unconstitutional?”

Barrett: “Well, let’s see. So, I think – I can’t answer that question in the abstract, you know, because as we’ve talked about, the ‘no hints, no forecasts, no previews’ rule. I also don’t know what the arguments would be. So, I assume Professor Rappaport lays out a case, but it’s not a question that I’ve ever considered before. But, if I did consider it, it would be in the context of an actual case or controversy.”

Feinstein: “Well, I thank you – it’s hard for me to believe that that’s a real question, because I think the Medicare program is really sacrosanct in this country.”

Voting Rights Act:

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Judge Barrett refused to say whether she agreed with Justice Scalia that the Voting Rights Act is a ‘perpetuation of racial entitlement.’ In Shelby County v. Holder, the Supreme Court voted 5-4 in 2013 to overturn the preclearance requirement of the Voting Rights Act, opening the floodgates for states to enact laws to disenfranchise voters.

Feinstein: “Do you agree with Justice Scalia’s assertion that the Voting Rights Act is “perpetuation of racial entitlement’?”

Barrett: “Senator Feinstein, I can’t – I don’t obviously know what Justice Scalia was thinking when he said that and in the characterization of the voting rights act or a statement like that is simply really not something I can opine on because you know that is tied in I would think with the Shelby County questions.”

Feinstein: “Well, can you opine–I’m not asking for a formal opinion but would you believe that it is a perpetuation of racial entitlement’?”

Barrett: “Well, Senator Feinstein, I think that goes to the question of whether the coverage formula was outdated and needed to be updated from the 1960s or not. I take that to be the thrust of the disagreement in Shelby County and the position that Justice Scalia was taking so again I can’t express a view on Shelby County and whether the majority of dissent had the better of the argument.

Voting during the coronavirus pandemic:

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Judge Barrett refused to say whether current situations, like a global pandemic, should be considered when ruling on voting rights cases.

Feinstein: “Last April, in the midst of the COVID-19 pandemic, the Supreme Court prevented Wisconsin from implementing a district court order that would have extended the state’s deadline for submitting absentee ballots. This would have given voters greater flexibility and casting absentee ballots for Wisconsin’s primary election.

Justice Ginsburg dissented. She criticized the court’s majority for putting its head in the sand with regard to the risks posed by COVID-19. She emphasized that courts and election officials must be able to react to a ‘grave, rapidly developing public health crisis’ and she noted that the Supreme Court’s ‘Suggestion that the current situation is not substantially different from an ordinary election boggles the mind.’

Would you agree? And what is your position?”

Barrett: “Well, Senator Feinstein, that’s obviously a very recent case and, you know, in that case, the court had to address, you know, the constitutional question. And, so again, it’s one of those things that I can’t answer, both because it would be requiring me to grade and express agreement or disagreement with the Supreme Court opinion. But, also, it’s the kind of case that could come up in a close – closely related form, either on the 7th Circuit – you know, Wisconsin is within the 7th Circuit’s jurisdiction – or on the Supreme Court.”

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