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Former Judiciary Nominations Counsel On Amy Coney Barrett's Confirmation Hearing


Today most federal workers had the day off, but not the 22 senators on the Judiciary Committee. That panel opened the confirmation hearings for Judge Amy Coney Barrett. With Republicans in the majority, Chairman Lindsey Graham said her confirmation is all but certain.


LINDSEY GRAHAM: This is probably not about persuading each other. Unless something really dramatic happens, all Republicans will vote yes, and all Democrats will vote no.

CHANG: Judge Barrett offered her opening remarks, as did every member of the panel, which should give us an idea of the strategy and tactics the senators will use this week. Joining us to game out the hearings is Gregg Nunziata. He is a Republican and served as chief nominations counsel on the Senate Judiciary Committee. Welcome.

GREGG NUNZIATA: Thanks for having me.

CHANG: So what stood out to you from the first day today?

NUNZIATA: Well, the first day of Supreme Court confirmation hearings are always the most scripted. It's all opening statements. And today I think everybody more or less achieved what they wanted to achieve. Republicans wanted to talk about Judge Barrett, her qualifications, her judicial philosophy. And Democrats seem to have decided that they are unlikely to stop this nomination or to block this confirmation and instead chose to use this as an opportunity to message on some salient political matters, principally health care, that they hope will resonate in the fall. So it was interesting to watch. It was interesting to watch how differently each side was conceiving of their role.

CHANG: Right. Picking up on that, I mean, you're right. The parties seemed to largely stick to two points. Democrats focused on the Affordable Care Act. Republicans sought to defend Barrett a number of times from potential attacks on her Catholic faith. What did you make of that?

NUNZIATA: You know, it's interesting. Certainly, her faith and what role her faith might have as a judge came up during her confirmation hearings for the appellate court. And a couple of Democratic senators phrased questions in a way that some folks took as excessively hostile to people of faith being on the bench. So Republicans were clearly thinking about that and referring back to that.

And the next few days, we'll see whether Democrats raise those questions again. It seems to be the case that at least the leadership of Senate Democrats are trying to avoid personal attacks, and I think that's a good strategy for any nominee. I mean, we've seen time and again in Supreme Court hearings that attempts to go after nominees personally often backfire, really rile up the other side and turn off folks in the middle. So...

CHANG: Sure.

NUNZIATA: I think avoiding personal attacks is a good idea for the Democrats if they can refrain from it.

CHANG: Now, both sides talked about judicial activism today, this idea of legislating from the bench. Barrett herself addressed that head-on in her opening statement. Let's take a listen.


AMY CONEY BARRETT: Courts have a vital responsibility to the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches.

CHANG: Do you believe that Barrett will adhere to this idea of stare decisis, this idea of binding legal precedent? And the reason I bring this up is because she did write in a 2013 law review article, quote, "I tend to agree with those who say that a justice's duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly is in - clearly in conflict with it." What do you think? Do you think she will be adhering to stare decisis as a justice?

NUNZIATA: I think she's written more about this issue than almost anyone who's been nominated for the Supreme Court, and I think she can explain this well if given the chance to put that kind of language in context. In that article and in other articles, she's simply saying that there's a strong duty to uphold the Constitution and get the law right. But if you read beyond a couple of sentences that are pulled out from time to time, you'll see that she's very much committed to the idea that the law needs to be stable, that there are precedents that people rely on, that there are things known as super-precedents buried into the fabric of our law. And even if they may have been decided improperly the first time, it would be best practice to not raise them again and, if we raise them again, perhaps to give some weight to precedent. So it's clear to me...

CHANG: All right.

NUNZIATA: ...That stare decisis is a value she will uphold to a degree.

CHANG: That is Republican Gregg Nunziata, former chief nominations counsel on the Senate Judiciary Committee. Thank you very much.

NUNZIATA: Thank you, Ailsa. Transcript provided by NPR, Copyright NPR.