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SCOTUS nomination hearings begin tomorrow. What can we expect?

Confirmation hearings for Supreme Court nominee Judge Amy Coney Barrett will begin on Monday. And despite opposition from Democrats and some Republicans to fill Justice Ginsburg’s seat before the election, Barrett has the votes needed for her confirmation. Amy Howe, Co-founder of SCOTUSblog, joins Hari Sreenivasan to discuss what we can expect from the hearings.

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  • Hari Sreenivasan:

    Tomorrow, the Senate Judiciary Committee will begin hearings on President Trump's nominee, Judge Amy Coney Barrett, to replace the late Supreme Court Justice Ruth Bader Ginsburg. Senators will speak for several hours before Judge Barrett makes her opening statement.

    Her remarks were released today and include her belief that government, and not the courts, should make policy and that the courts are quote, "not designed to solve every problem or right every wrong in our public life," unquote.

    For more about the nominee and what's ahead in the hearings, I spoke with Amy Howe, co-founder of SCOTUSblog who joined us from Washington, D.C.

    Amy, in any other world, the Supreme Court nomination would be front-page above the fold, every day. But since we spoke last at the passing of RBG's death, this story has gotten eclipsed by so many other things. What can we expect tomorrow?

  • Amy Howe:

    So they're going to kick it off with statements, introductions from Indiana senators and from Patricia O'Hara, who is a former dean of Notre Dame Law School. And then we'll hear statements from Judge Barrett herself and from the senators on the Senate Judiciary Committee.

    After that, they will move on to questions for Judge Barrett from the senators on the committee, which is really where the meat of the hearings will be.

    And then we'll hear testimony from legal experts and people from Judge Barrett's life supporting her nomination and probably some opposing her nomination.

  • Hari Sreenivasan:

    At this point, if anybody's watched any of the previous two nomination hearings, you have the team that supports the Justice, that party asks easy questions and the team that opposes the nominee asks very difficult ones. Given the composition of the Senate, it's sort of a foregone conclusion at this point.

  • Amy Howe:

    It certainly does seem that way.

    The Republicans would need several senators to defect and there's no sign of that at this point. There are two senators, Senator Lisa Murkowski of Alaska and Senator Susan Collins of Maine, who had said that they wanted Republicans to wait and not vote on a nominee before the election. But I don't think that either one of them has committed to not voting for Judge Barrett. So it does seem like she has the votes at this point.

    But at the same time, I think that there's going to be discussions. It's sort of an opportunity, it's it's a little bit of a civics lesson, you know, in which the party that is opposing the nominee in particular, can use the Senate confirmation hearings as an opportunity to sort of educate the public about the nominee. Because, remember, unlike the Senate, the Supreme Court proceedings are not televised. And right now, we're actually hearing them because of the pandemic live audio, but we don't see the Supreme Court in action, sort of. So we learn a lot more about this person.

  • Hari Sreenivasan:

    If the Senate and the president have their way, this nomination wraps up right before the election. What are the big cases that she's going to face?

  • Amy Howe:

    There are two very big ones that she would face almost immediately.

    The day after Election Day, the Supreme Court will hear oral arguments in a case called Fulton versus City of Philadelphia. And this is a case about the balance between religious beliefs on the one hand, and anti-discrimination laws, particularly anti-discrimination laws against LGBTQ people, on the other hand. And it's sort of a second round of cases.

    Many of your viewers may remember from a couple of years ago a case involving a Colorado baker who refused to make cakes for a same sex wedding. The Supreme Court in that case ruled for the baker but in a very narrow way, that didn't resolve the broader question of how do you balance someone's religious beliefs against anti-discrimination laws? And so the question is back in a case brought by Catholic Social Services in Philadelphia against the City of Philadelphia, which won't now give contracts to Catholic Social Services because Catholic Social Services won't work with foster care parents who are same-sex couples.

    And the second one is a week after Election Day and that is the challenge to the individual mandate of the Affordable Care Act. And that is a case that back in 2012, again, many of your viewers may remember, the Chief Justice John Roberts joined the court's then four more liberal justices in upholding the individual mandate. A couple of years later, the Congress changed the mandate, they reduced the penalty for not getting health insurance to zero. And so Texas and some other so-called red states went to court, said, well, if there's no longer a penalty for not getting health insurance, it can't be a tax. And they said if the mandate's not constitutional, the whole Affordable Care Act has to go with it. And so that is obviously a very consequential case that is going to be argued on November 10 in the Supreme Court.

  • Hari Sreenivasan:

    One thing a lot of people are curious about is what if the election, similar to 2000, ends up in front of the Supreme Court? Would she play a role in that?

  • Amy Howe:

    I think that is definitely a question that we are going to hear asked at the hearings next week in a variety of different formulations. And I don't know what her answer will be, I think that she is likely to play a role. And I think the other, I think the president and some Republicans have suggested that that is, in fact, a reason why we need a ninth justice on the Supreme Court in advance of the elections.

    Certainly, any litigation arising out of the elections isn't going to arrive on the Supreme Court on November 4th. It would take a while to bubble up to the Supreme Court. But sort of the broader question, I think she is likely to play a role.

  • Hari Sreenivasan:

    Amy Howe of SCOTUSblog. Thanks so much.

  • Amy Howe:

    Thanks for having me.

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