President Donald Trump’s U.S. Supreme Court nominee Amy Coney Barrett on Wednesday said it is an “open question” whether Trump could pardon himself if he were convicted of a crime while adding that the nation’s top judicial body “can’t control” whether a president obeys its decisions.
On the third day of her four-day Senate judiciary committee hearing, Barrett also sought to allay Democratic fears that she would be an automatic vote to strike down the Obamacare health care law in a case due to be argued Nov. 10, promising an “open mind.”
Barrett sidestepped questions from senators on the ability of presidents to evade efforts to hold them accountable.
Trump has said he has the “absolute power” to pardon himself, part of his executive clemency authority. Asked by Democratic Senator Patrick Leahy whether a president has such power, Barrett said the “question has never been litigated.”
“That question may or may not arise, but it’s one that calls for legal analysis of what the scope of the pardon power is. So because it would be opining on an open question when I haven’t gone through the judicial process to decide it, it’s not one on which I can offer a view,” Barrett said.
‘No one is above the law’
Trump faces a criminal investigation about the conduct of himself and his businesses by a New York City prosecutor who is seeking his financial records and tax returns. Trump also has issued executive clemency to political allies and friends.
Barrett, a conservative federal appellate judge, is the Republican president’s third selection for a lifetime job on the Supreme Court. Trump has asked the Senate, controlled by his fellow Republicans, to confirm her before the Nov. 3 U.S. election.
Barrett said “no one is above the law” but twice declined to answer directly when Leahy asked her whether a president who refuses to comply with a court order is a threat to the U.S. constitutional system of checks and balances within the three branches of government.
“The Supreme Court can’t control whether or not the president obeys,” Barrett said.
Barrett declined to discuss whether Trump is violating the U.S. Constitution’s “emoluments” clause with his business dealings, objecting to Leahy’s characterization of the provision as an anti-corruption measure. The provision bar presidents from taking gifts or payments from foreign and state governments without congressional approval.
“I don’t know if I would characterize it as an anti-corruption clause,” Barrett said, adding that it was designed to “prevent foreign countries from having influence.”
The Obamacare case
Barrett could be on the high court for Nov. 10 arguments in a challenge by Trump and Republican-led states to Obamacare, the 2010 law, formally called the Affordable Care Act (ACA), that has helped millions of Americans obtain medical coverage and includes protections for people with pre-existing conditions.
In response to Democratic suggestions that she would vote to strike down the entire law if one part is found to be unlawful, Barrett said that if a statute can be saved, it is a judge’s duty to do so.
Barrett indicated she favours a broad reading of the “severability doctrine,” in which courts assume that when one provision of a law is unlawful, Congress would want the rest of the statute to remain in place. The Supreme Court has taken such an approach in recent years.
“I think insofar as it tries to effectuate what Congress would have wanted, it’s the court and Congress working hand in hand,” Barrett said of the doctrine.
When judges address the legal question raised in the Obamacare (ACA) case, the “presumption” is that Congress did not intend the whole statute to fall, Barrett added.
“If I were on the court, and if a case involving the ACA came before me, I would approach it with an open mind,” Barrett told Republican Sen. John Cornyn of Texas.
Barrett has declined to say whether she would recuse herself from the Obamacare case. Barrett said the case centres on a different legal issue than two previous Supreme Court rulings that upheld Obamacare that she has criticized.
Pressed by Democratic Sen. Patrick Leahy of Vermont on queries regarding Trump and presidential powers, Barrett said no one is above the law but sidestepped a question about whether a president can issue a pardon for himself.
WATCH l Barrett pressed on seminal civil rights legislation:
Trump faces a criminal investigation about the conduct of himself and his businesses by a prosecutor in New York City who is seeking his financial records and tax returns. Trump also has issued executive clemency to political allies and friends.
Asked by Leahy whether a president can ignore a Supreme Court order, Barrett noted that the high court does not have enforcement power itself and relies on the other branches of government.
‘History being made’
Barrett has sidestepped questions on contentious social issues, including abortion, which as a devout Catholic, she personally opposes.
“This is history being made folks,” Sen. Lindsey Graham, the chairman of the panel, said. “This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology, and she’s going to the court. A seat at the table is waiting for you.”
Under questioning by Graham, Barrett reiterated her comments from Tuesday that the landmark 1973 Roe vs. Wade ruling that recognized a woman’s constitutional right to abortion was not a “super-precedent” that could never potentially be overturned.
Barrett told the committee on Tuesday she could set aside her religious beliefs in making judicial decisions.
Although the Supreme Court has for decades opposed having television coverage of its proceedings, Barrett said Wednesday she had a “open mind” on the issue.
Barrett, 48, would tilt the court even further to the right, giving conservative justices a 6-3 majority. Republicans have a 53-47 Senate majority, making Barrett’s confirmation a virtual certainty.
In response to Democratic suggestions that she would vote to strike the entire law down if one part is found to be unlawful, Barrett on Wednesday told Graham that when judges address the legal question raised in the case, the “presumption” is that Congress did not intend the whole statute to fall.
Trump has urged the Senate, controlled by his fellow Republicans, to confirm Barrett before Election Day. Trump has said he expects the U.S. Supreme Court to decide the election’s outcome as he faces Democratic challenger Joe Biden.
The hearing is scheduled to end on Thursday with testimony from outside witnesses, with Republicans then preparing for a committee vote on her nomination.
Trump nominated Barrett to a lifetime post on the court on Sept. 26 to replace the late liberal Justice Ruth Bader Ginsburg. The four-day confirmation hearing is a key step before a full Senate vote due by the end of October on Barrett’s confirmation.
Barrett would be the fifth woman to serve on the court if confirmed.