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2 legal experts on Amy Coney Barrett confirmation hearing

For a closer look at the legal questions raised during Tuesday’s confirmation hearing for Judge Amy Coney Barrett, Judy Woodruff talks to the University of Virginia’s Saikrishna Prakash, a former law clerk for Justice Clarence Thomas, and Georgetown University’s Victoria Nourse, who was chief counsel to Vice President Joe Biden in 2015 and 2016.

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  • Judy Woodruff:

    We take a closer look at today's hearing with Victoria Nourse of Georgetown University. She served as chief counsel to Vice President Joe Biden in 2015 and 2016 and as counsel to the Senate Judiciary Committee when he was its chairman.

    And Saikrishna Prakash, he is a constitutional law scholar at the University of Virginia and a former clerk to Justice Clarence Thomas. He will be testifying before the Judiciary Committee on Thursday as a witness in favor of Judge Barrett's confirmation.

    Hello to both of you.

    So, Victoria Nourse, to you first.

    What do you make of the questioning from these senators or, I guess, in some cases, statements, and the answers she's giving? Overall, what do you make of it?

  • Victoria Nourse:

    Well, I think it was fairly predictable that some senators would take this occasion to talk about their own constitutional philosophy.

    Some of these senators are in very tight races as well, so there's a bit of campaigning going beyond — behind the scenes.

    You know, I think she is being very cautious, as she should, about not undermining her independence, but it's pretty predictable, given the prior hearings, that we wouldn't really understand her view on particularly controversial legal issues, as opposed to personal issues.

  • Judy Woodruff:

    And, Professor Prakash, predictable to you as well?

  • Saikrishna Prakash:

    Yes, I agree with Professor Nourse just said.

    Nominees tend to not answer specific questions about cases, particularly when they can say the case might come before them. The only time she really engaged with the questions is when she had decided a case or issued an opinion, and then she felt freer to discuss it, in part because she had already said something about it.

    But, beyond that, she invoked the Ginsburg rule or the Kagan rule.

  • Judy Woodruff:

    Let me stay with you, Sai Prakash, and just ask you, what would you — if you were pulling the strings, what would you like to have heard the senators ask, what kinds of things that the Democrats and the Republicans aren't doing?

  • Saikrishna Prakash:

    I think they're asking the right questions for the folks who they care about.

    That is to say, I think the Democrats are asking questions about the outcomes of cases, in part because their interest groups are most focused, not on process, but on outcomes, whereas the Republicans like to emphasize that they don't want judges who legislate from the bench, which I think speaks to the concerns of their constituent groups.

    Now, there's one person who is quite interested in outcomes and not process, and that's the president. But that actually sort of aligns him well with the Democrats, because they, too, at times seem more interested in outcomes, and not in judicial decision-making or reasoning.

  • Judy Woodruff:

    Victoria Nourse, are you hearing — I mean, pick up on that.

    I mean, are — do you think the senators have more leeway in the kinds of questions that they would be — it would be more productive if they pursued other avenues?

  • Victoria Nourse:

    No, I mean, I think you have to understand about this particular hearing, even though it's predictable from her point of view, it's very unusual.

    So, we are in the midst of an election. People have already voted. We're in COVID. The senators are — Amy Klobuchar was very — she seemed quite upset, actually. She was very effective in her questioning, and I thought she really drilled down into questions about a particular dissent from Judge Barrett.

    But I wish they would focus a little bit more — we shouldn't have this dichotomy between the Dems on the outcomes and the Republicans on the process, because it's both.

    And once she's on the Supreme Court, even if she comes to her decision by a process that Republicans have blessed, there are effects. It's different if you're an appellate judge or a trial court judge. She will be one of nine unelected people, and she will be deciding on statutes, as well as the Constitution. She's an expert in statutory interpretation.

    And that means she could agree with Trump that, well, this ACA case, the statute doesn't make any sense anymore. It says that the individual mandate was essential, and, therefore, I'm going to throw the whole thing out. That's the Trump administration argument.

    So, I think people need to see both to understand what's going on, because the method is really a code for the results in some ways. I wish the Democrats would push more on that. But I understand why they're not, because it's a very unusual situation, and they want to communicate to people what some Notre Dame professors just did in a letter, which is, this is an unusual hearing.

    Let's talk about these issues. Let's talk about voting rights. Let's talk about gun rights. Let's not push this through while we're voting.

  • Judy Woodruff:

    And, Sai Prakash, is there something different Judge Barrett could be doing in the way she tackles these questions?

    We know she's trying to be very careful not to hurt her chances in any way, not to box herself in, if she is confirmed to the court, but is there something different she could be doing?

  • Saikrishna Prakash:

    Just as I wouldn't give advice to the senators about their job, I wouldn't give advice to the judge.

    I think she's doing a terrific job, given the constraints that she and other judges feel in answering these questions. I think she's willing to speak about broad methodology, but not about particular outcomes and not about the status of particular doctrines.

    And I think that makes sense, given that she may soon be at a higher level. Either way, she's a judge. Even if she doesn't get the promotion, she will be a judge and doesn't want to be perceived as having prejudged a case.

  • Judy Woodruff:

    And, Professor Nourse, is there — I mean, for the people watching these hearings who don't know the law, what's the best outcome here? I mean, that they — that we learn more about her, that we hear more about these issues? What's the point?

  • Victoria Nourse:

    I think I am a traditionalist about civics. I think people want this, in some ways, to be — law professors want it to be very legal and academic, but I think it's actually good to bring human beings into the courtroom.

    I think — I'm one of very few law professors who have ever worked in Congress, only 2 percent. And I think we used to have members of the Supreme Court who actually had worked in the Senate. That never happens.

    And they go through these hearings, and they're often, like, what are you talking to me about those results there? I can't say anything about those results.

    But I think it's important for the American people to see that the Supreme Court has enormous power, and that power does affect their lives. That's why some people are so concerned we're doing this before the election.

    I have known noted that some of her colleagues at Notre Dame now have issued — these aren't at the law school, but they have issued a letter to her, saying she should withdraw her nomination and wait until after the election, because it's so unusual.

    So, it is a civics lesson. That's why they will be talking about results, because the senators are constitutionally required to re-present, re-present issues to the people. So, that's a legitimate function of the hearing.

  • Judy Woodruff:

    Well, we are going to leave it there. We have tomorrow to go.

    We should say, Justice Stephen Breyer did work in the Senate, serve on the Senate staff of the Judiciary Committee for, I guess, a short time.

    And we will leave it there.

    Victoria Nourse and Sai Prakash, thank you both.

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