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Trump Judicial Nominees Keep Mostly Mum In Confirmation Hearings

Sep 7, 2017
Originally published on September 7, 2017 10:18 am
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RACHEL MARTIN, HOST:

The Trump administration is trying to fill several key judicial vacancies. Today, the Senate judiciary committee is holding confirmation hearings for four federal judicial nominees and seven U.S. attorney nominees. NPR's Nina Totenberg reports on the tense hearings yesterday of two federal appeals court nominees.

NINA TOTENBERG, BYLINE: The federal appeals court nominees were Joan Larsen, a justice on the Michigan Supreme Court and Amy Barrett, a Notre Dame law professor. Both served as law clerks for the late Supreme Court Justice Antonin Scalia, a conservative icon. Both are in their 40s, and both are seen by friend and foe alike as movement conservatives who might someday be elevated to the Supreme Court. Indeed, Larsen was on President Trump's list of potential nominees this year. Both nominees took the path increasingly traveled in these hearings - say nothing of any importance; answer only what you absolutely have to.

In Barrett's case, that meant she did have to answer questions about some of her speeches and scholarly writing. In response to a question from committee chairman Chuck Grassley, she disavowed portions of a two-decade-old law review piece that suggested Catholic judges, who by conscience follow church doctrine against the death penalty, should recuse themselves from capital cases. Similarly, ranking Democrat Dianne Feinstein asked her whether she would enforce the Supreme Court's mandate on abortion rights.

Barrett, widely viewed as hostile to abortion rights, said she would enforce Roe v. Wade and other abortion rights decisions. She said that, as a lower court judge, she is bound by the high court's decisions. Nominees, whether liberal or conservative, always say that. It used to be that nominees were a bit more expansive, saying, for instance, that while they personally were opposed to the death penalty or personally opposed to abortion, it is the law, not personal views that count.

Yesterday's nominees were even less forthcoming. Neither Barrett, nor Larson, would say what decisions she disagreed with. Neither would say, for example, whether she believes that the Constitution guarantees a right to privacy. As Barrett put it...

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AMY BARRETT: I want to cooperate as fully as I can, but I think if I express a personal view on any of these matters, it might give the misimpression that my personal view is what would drive the decision of a case.

TOTENBERG: Even recent Supreme Court nominees have not gone that far. And Republican John Kennedy, who posed many of those questions, was clearly not happy.

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JOHN KENNEDY: I don't agree with the position you're taking, where you don't talk to me about the law. I understand you want to be confirmed. I get that part.

TOTENBERG: Democrats were even more unhappy. Sheldon Whitehouse of Rhode Island.

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SHELDON WHITEHOUSE: The protocol for answering questions that has developed in this committee makes the committee looks preposterous. It makes the witnesses, the nominees look preposterous. We have got to get beyond this if we're going to have meaningful hearings and not just gamesmanship.

TOTENBERG: It cannot be, he added, that the law is so clear that you put the information in like a robot and come out with an answer. If that were true, he observed, all court decisions would be unanimous. Indeed, if that were true, why would there be any need for courts at all? Nina Totenberg, NPR News, Washington.

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