“I play a lot of golf with the president, I guess. I’ve enjoyed it,” Graham said. “We talk about a lot on the golf course. … I promise I’ve never talked about severability with the president,” the chairman said, referring to a lawsuit filed by 18 Republican state attorneys general.
Trump has long backed the suit, and only lately seems to have awakened to the political dangers it now poses.
Inspired by the success of a similar effort in messaging during the 2018 midterms, Democrats appear to have calculated that their relentless focus on Barrett’s alleged hostility to the health-care law — even in the somewhat incongruous setting of a Supreme Court confirmation hearing — will pay electoral dividends for them in November.
On Tuesday, as Democrats hammered away at Barrett and Trump, Republicans accused them of promoting a politically motivated fantasy about the nominee’s views on a topic she has never opined on in the current, potentially make-or-break challenge to the law.
“All of these predictions about how judges, under our independent judiciary, will make decisions are just pure speculation. But I think they’re worse than speculation, I think they’re propaganda in order to make a political point,” Sen. John Cornyn (R-Texas) earnestly declared.
But Democrats noted that Trump’s statements about the reliability of his judicial appointees were often unequivocal.
“This president has not been subtle that he expects his nominee to side with him in an election dispute,” Sen. Patrick Leahy (D-Vt.) said.
For her part, Barrett insisted she had made no promises to the White House about how she would rule on the ACA, abortion or any litigation over the election.
“I’m not willing to make a deal, not with the committee, not with the president,” she said. “I’m independent.”
Sen. Mike Lee suggested it was “wildly incorrect” for Democrats to question Barrett’s refusal to offer her views on most of the legal controversies she was asked about. But the Utah Republican never addressed whether it was appropriate for Trump to have explicitly promised that his nominees would, for instance, vote to overturn Roe v. Wade.
But Democrats said their questions to Barrett were rooted directly in tweets Trump had sent and comments he had made vowing loyalty from his judicial nominees. Sen. Sheldon Whitehouse (D-R.I.) noted that the GOP party platform from 2016 and 2020 explicitly calls for justices that would reverse the decided Supreme Court cases upholding Obamacare.
“When we react to that, don’t act as if we’re making this stuff up,” Whitehouse said to his Republican colleagues. “This is what President Trump said. This is what your party platform says: reverse the Obamacare cases.”
When Barrett insisted she had not even discussed abortion or the Affordable Care Act with the White House, some Democratic senators asked Barrett — in effect — if she was calling the president a liar.
“Do you think we should take the president at his word when he says the nominee will do the right thing and overturn the Affordable Care Act?” Sen. Amy Klobuchar (D-Minn.) asked, with a poster-sized version of a 2015 Trump tweet displayed behind her.
“I cannot speak to what the president has said on Twitter. He has not said any of that to me,” Barrett replied. “I am committed to judicial independence from political pressure, so whatever party platforms may be or campaign promises may be, the reason judges have life tenure is to insulate them from those pressures.”
Indeed, at one point, Barrett suggested that despite ample indication from Democrats of their plans to focus on the Affordable Care Act at this week’s hearings, she had not even seen Trump’s statements vowing that his judges would rule against the law.
“I want to be very careful. I’m under oath. I don’t recall hearing or seeing those statements,” Barrett told Sen. Kamala Harris of California, the Democratic vice presidential nominee.
It was not totally clear whether the Republicans’ desire or willingness to scrub Trump from the picture Tuesday was simply a tactical decision to ease Barrett’s confirmation or if it reflected Trump’s weakening grip on lawmakers as polls increasingly suggest that he is likely to be defeated next month in his re-election bid.
While a desire by Republicans not to talk about a president of their own party just weeks before he’s up for re-election might ordinarily be seen as a snub, at the moment it might actually be politically beneficial to Trump to have the spotlight on Barrett instead.
At a superficial level, the middle-aged, mild-mannered law professor and mother of seven is a far less polarizing figure than the thrice-married, attention-grabbing president, particularly with the moderate, suburban women Trump is trying to target in his re-election bid. And Barrett managed to sound more empathetic on racial issues than Trump has through several years in office.
While Trump has offered mixed messages about Black Lives Matter protests, Barrett said her family was traumatized by the videotape of George Floyd’s death after a Minneapolis police officer knelt on his neck for nearly nine minutes.
“As you might imagine, given that I have two black children, that was very, very personal for my family,” Barrett said, as her husband and several of her children sat behind her.
“My 17-year-old daughter Vivian, who is adopted from Haiti — all of this was erupting — it was very difficult for her. We wept together in my room,” Barrett added in an exchange with Sen. Dick Durbin (D-Ill.) “For Vivian, to understand that there would be a risk to her brother or the son she might have one day of that kind of brutality, has been an ongoing conversation. It’s a difficult one for us like it is for Americans all over the country.”
Although Barrett was scrupulous not to express her views Tuesday on a slew of controversial issues that could come before the court — nor even, theoretically, whether a president should pledge to uphold the peaceful transition of power — she said she was “happy to discuss” her reaction to the Floyd video and she accepted the premise that his death was the result of racism.
Trump has inveighed against the idea that American law enforcement is saddled with “systemic racism,” but Barrett seemed more willing to concede racism that goes beyond the proverbial few bad apples.
“It would be hard to imagine a criminal justice system as big as ours not having any implicit bias in it,” Barrett told Sen. Cory Booker (D-N.J.).
It was evident from Trump’s Twitter feed that he was watching at least part of Tuesday’s proceedings, and tuned in to the Democrats’ frequent mentions of him.
“How dare failed Presidential Candidate (1% and falling!) @CoryBooker make false charges and statements about me in addressing Judge Barrett,” Trump tweeted at one point. “Guy is a total loser!”
But as he boarded the presidential helicopter on the way to his latest campaign rally, Trump made no mention of the fact that his nominee had spent the last 11 hours avoiding being tied to him.
“I think Amy is doing incredibly well,” he told reporters. “It’s been a great day. Thank you.”