Jennifer Braceras from Independent Women’s Law Center talks with Senator Marsha Blackburn about the Barrett confirmation and the role of America’s highest court.
Transcript
Beverly Hallberg:
Hey, everyone. It’s Beverly Hallberg. Welcome to a special pop-up episode of She Thinks, your favorite podcast from the Independent Women’s Forum, where we talk with women — and sometimes men — about the policy issues that impact you and the people you care about most. Enjoy.
Jennifer:
Hi, everyone. I’m Jennifer Braceras from Independent Women’s Law Center. I am so thrilled today to be joined by Senator Marsha Blackburn from Tennessee. And she is one of two Republican women on the Senate Judiciary Committee, and she’s going to talk to us a bit about the confirmation hearing of Judge Amy Coney Barrett to the United States Supreme Court.
The confirmation hearing wrapped up today. How do you think it went?
Senator Blackburn:
I think that everything went very well. Of course, we know is that this is the point at which the Kavanaugh issues started with after he had finished the hearings in the judiciary committee, but we are hopeful that we’re going to be able to move her forward and then have her take her seat on the Court.
Jennifer:
Yes. You mentioned that the Kavanaugh hearings ended and then there was sort of this 11th hour push to derail the nomination. The same thing happened with Justice Clarence Thomas. You’re not expecting anything like that to happen this time are you?
Senator Blackburn:
We are hopeful that nothing like that is going to happen. What was so amazing with the hearings this week, they continued to try to disrupt her or to throw her off base or to ask her about particular cases or opinions that she had participated in, something to throw her off. She took every question, and she answered it. She had no notes in front of her.
Jennifer:
Yeah. Even Senator Feinstein complemented Judge Barrett’s intellect, which I thought was very telling. What did you think about that?
Senator Blackburn:
Yes. I think everyone was impressed. They didn’t want to be impressed with her, and they were trying to not get to know her, which is their loss, but the American people did get to know her and they like what they see.
All the polling shows that. They are very confident in her taking that seat on the Court. One of the things that was striking our friends across the aisle decided they were going to make this all about the Affordable Care Act and health care.
Jennifer:
Yes, indeed.
Senator Blackburn:
They kept saying, oh, if you go on the Court and this case comes up — it’s a severability case — they said, all of these, 150 million people are going to lose their health care. And I said to my team, that’s not right. Those are not the accurate numbers. I said, go to the website and let’s find out how many people are now actually enrolled in the affordable health care plans. Well, it’s 8.3 million people. That’s it.
What you have is 153 million Americans, plus 57 million Americans on Medicare who have paid for and are paying premiums, and if the Democrats have their way, they would cause all of those people to lose their private health insurance and be forced into a government run socialized Medicaid type program.
And, of course, we know for them, Obamacare was just the step along the path to socialized medicine. And what they’re concerned about is ,if you have a constitutionalist on the court, then the Court might block their plan for socialized medicine for the green new deal, for D.C. statehood, for Puerto Rico statehood for doing away with the Electoral College, for expanding the Supreme Court. These are all goals that they have.
Jennifer:
Well, it’s interesting because I would think that your colleagues understand the difference between the role of a senator and the role of a judge, but it seems that, as you noted, they kept pressing her on health care and all of these policy questions. And it almost seemed that they were doing that to deliberately confuse the public as to what the role of the Supreme Court is. Don’t you find that somewhat subversive?
Senator Blackburn:
Well, yes. I mean, look at the way they were approaching this: They would ask her questions about specific policies in hopes of trapping her and having her violate the judicial canon of ethics. So repeatedly, she would say, that is a policy issue on which I may, at some point have to opine. I cannot, as a federal judge, I cannot give you an answer.
Jennifer:
Right. She can’t. And not only can she not give them an answer about how she would rule on a case, it’s not her role as a justice of the Supreme Court or judge on the Seventh Circuit to impose her own views — whatever they are.
I thought your colleague Senator Sasse had an interesting opening statement where he sort of talked about the need for an eighth-grade civics lessons. To what extent do you view your role as a senator on this particular committee as the role of a teacher, sort of educating the public about what the role of the Court is in a republic?
Senator Blackburn:
Well, and part of what we do is very important to that. That we lay out the process and we’ve spent a good bit of time with Tennesseans talking about what I was doing this week, giving recapped information, and I know that there are some teachers and some kids that are at home on Zoom school that have had their class watch this and walk through this entire process.
Jennifer:
That’s actually terrific.
Senator Blackburn:
It’s important to do, so people understand, yeah, you know, the thing is that judges in this country do not own their seat. Those on the left started out by saying, well, Ginsburg didn’t want this to happen. Ginsburg didn’t want that to happen. But then they turned around and they tried to have Judge Barrett violate the Ginsburg rule, which is to never tip your hand as to what you’re going to do.
Also, they finally stopped talking about that because, over and over, we made the point that the seat was not owned by Justice Ginsburg. In our country the judge does not pick their replacement. It is constitutional that the president will nominate and the Senate will provide advice and consent. That’s the process that we follow.
Jennifer:
And the Constitution makes no exception for an election year, despite what some of your colleagues were saying, that is up to the discretion of the Senate whether to move forward as you did in this case or not as the Senate did in the case of Judge Garland. Either of those choices are legitimate.
Senator Blackburn:
That’s correct. 29 times in the past, you have had a justice leave a vacancy on the Supreme Court. 29 different times. All 29 times the president has met his constitutional duty and has offered a replacement, made a nomination.
Jennifer:
During an election year, or lame duck session, right?
Senator Blackburn:
During an election year. That’s right. Now, during those 29 times, 19 of those times, you have had the president and the Senate held by the same party. All 19 times the positions were filled. There were 10 times that the positions were not sealed because they were of opposing parties.
Jennifer:
So, there’s really nothing controversial at all about moving forward with this nomination at this time. The American people voted for President Trump to hold office for four years, and they knew when he ran for office, the types of judges and, indeed, specific people that he might appoint the courts. That was a very big factor in his election for a lot of conservatives. He won, and he has both a right and a duty to fill those vacancies as they become open in the normal course.
Senator Blackburn:
Correct.
Jennifer:
So, if confirmed, Judge Barrett will be only the fifth woman to serve on the high court. And, I think it’s very interesting because Republicans are often accused of not appointing enough women or people of color to the courts. And, yet, here we have this incredibly qualified female nominee, and the same people who criticize Republicans for lack of diversity came out strongly against her, even before she was nominated actually. It’s the same thing they did to Justice Thomas. How do you explain that?
Senator Blackburn:
Well, this is what the left does to conservative women, and they chose not to get to know her. I talked about this. The uniqueness of her appointment. We’ve had 164. One hundred and sixty four different times we have had citizens of this country come before the Senate Judiciary Committee to stand for appointment to the Supreme Court.
This was only the fifth time out of those 164 that we had a woman. The first time we have had a female from the political right, if you will. The way she was treated by having her being questioned on how she could be a mother to seven children, and how she could do her job, and, some even said, maybe the adoptions should be investigated.
Jennifer:
I found that really appalling.
Senator Blackburn:
It was just terrible. Yes, very appalling, but if you’re a woman who is pro-life, pro-religion, pro-family, pro-business, this is what the mainstream media and the left will do to you. They will say, need not apply. You’re not a part of the click. We’re not going to let you join the club. We don’t want diversity of viewpoint. What we want is people who are going to come in lockstep with our agenda.
Jennifer:
Yeah. It really exposes the hypocrisy of the whole diversity movement so to speak because they say they want racial and gender diversity, but the truth is, as you said, they only want a certain kind of woman. They only want a certain kind of African-American. They don’t actually care about the advancement of women and minorities in certain professions.
What they care about is advancing their agenda. So, if a woman or a minority can do that for them, they’re very happy with that, but if it’s somebody who doesn’t fit the mold, they attack that person as being not true to their sex, or not true to their race.
Obviously, Judge Barrett’s most important qualifications are her legal credentials, but looking beyond that, what does it mean to you, as a woman, to know that Barrett would be the first justice to have school-aged children at the time that she was working as a justice. Does that have any resonance with you?
Senator Blackburn:
Well, I think that it is going to be a wonderfully diverse viewpoint to have somebody who has this type experience. Who is a working mom. Who has adopted children. Think of what she will bring to the court, but they don’t want to hear that. They don’t want to know how she is going to handle a special needs child. This is a lot of historical firsts, and they are choosing intellectual isolation as opposed to having viewpoint diversity, simply because she is not a woman of the left.
Jennifer:
It’s so interesting because the left are usually the ones who say that “lived experience” is so much more important than paper credentials. Here we have a woman who has both sterling paper credentials and lived experiences that one would think would imbue her with compassion and a strong commitment to equal justice under law. And, all of a sudden, those lived experiences, they don’t seem to matter so much to the people who claim they’re the most important thing of all.
Senator Blackburn:
You’re exactly right. It’s like in Nashville, we talk a lot about our songwriters. Loretta Lynn always says, “not all learn’ comes from books.” You have to live a little. That’s very true.
Jennifer:
It’s very true. What’s troubling about people who want to put everything on “lived experiences” is when they don’t value those experiences in conservative women. They only value the lived experiences of progressive women. That’s where that becomes problematic in my view.
Senator Blackburn:
That’s right.
Jennifer:
Talk to us, if you will, for a few minutes about some of the attacks we saw on Judge Barrett’s faith.
Senator Blackburn:
It was astounding that you now have people in the country who are saying, they’re okay with a religious litmus test. Now, they know that this is expressly prohibited, but they have chosen to go there anyway. This is a constitutional prohibition.
Jennifer:
Right.
Senator Blackburn:
You cannot have a religious test. And this is a woman of faith. She takes her children to church every week. And for that, they are wanting to say, this would disqualify her because her faith might influence what is going on. I was reading an article last night. There is a Democratic woman running for the seat that Pat Roberts has vacated in Kansas. She actually said she supported having Amy Coney Barrett’s faith investigated, and having that religious liberty test.
Jennifer:
She needs to read her Constitution.
Senator Blackburn:
Yeah. That’s exactly what I said. Give her a copy of the Constitution and let her read. You can’t do that. You can disagree with someone’s faith, but you cannot discriminate against them. It is prohibited by the Constitution and by law.
Jennifer:
…interesting about that is, Justice Scalia who was Judge Barrett’s mentor, he was confirmed 98 to zero. Not a single Democrat voted against him, and he was also a deeply religious Catholic. He had nine children. He lived out his faith, and nobody questioned Justice Scalia’s ability to do the job because he was a faithful Catholic.
Nobody questioned his ability to do the job because he had nine kids at home. Nobody, actually, also asked him who was doing his laundry. And so, I just wonder what is the difference now? What is the difference in the way Justice Scalia was treated by your Democratic colleagues, as well as some of your Republican colleagues, and the way Judge Barrett was treated?
Senator Blackburn:
Yeah. I have to tell you, the difference is she is a female, and she is a conservative female. And conservative women are accustomed to being ridiculed and mocked and diminished, and questioned, and not trusted, which is what the mainstream press and the left will do to conservative women.
But as we saw from Judge Barrett this week, conservative women are a pretty, we’re a pretty sturdy bunch, and we don’t cower and we don’t give in. They thought they could absolutely beat her, verbally beat her, into submission. It’s so interesting to me. Freethinkers come from the political right, and it is the left that says, submit to our agenda and be in lock step with us.
Jennifer:
Right.
Senator Blackburn:
You’re one of the Stepford Wives of liberalism. Agree with us on every point, and we will support you.
Jennifer:
Right. And, ironically, they’re the ones painting her as being part of some dystopian society that demands conformity when they’re the ones that demands lock-step conformity, not only in terms of political viewpoint, but lifestyle, religious viewpoint, all of the above.
Senator Blackburn:
Right.
Jennifer:
Yeah. It’s just so hypocritical.
Senator Blackburn:
Yup.
Jennifer:
I want to talk to you a little bit about what you learned about Judge Barrett’s jurisprudence during the course of the hearings. She is what’s known as an “originalist.” That’s not a term that I think a lot of non-lawyers necessarily understand. Some people refer to that as a “constitutionalist,” meaning she believes that, unless amended, the Constitution’s meaning is fixed, and we have to interpret the words of the Constitution as they would have been understood by the people who wrote them.
I saw a tweet — I think it was this morning — by Hillary Clinton who kind of shot back and said, well, when the Constitution was ratified, women didn’t have a right to vote and, I don’t know, it listed some other things, but Hillary Clinton is a graduate of Yale Law School. She knows, as well as anybody, that that’s not what it means to be an originalist. Can you kind of clear that up or tell us what you learned from Judge Barrett this week about originalism.
Senator Blackburn:
Yes, and we talked a little bit about this in relation to the Fourth Amendment and privacy and the Carpenter decision and because you didn’t have cell phones, you didn’t have telecommunications, but what you do is look at that application that word as to what it covers in this day and time.
How do you extend that? That is what the originalist does. They look at the text of the constitution and they look at the text of the statute. As Justice Scalia had said at one point, when you look at originalism and textualism and you are working with the law and the constitution sometimes it leads you to what would be a liberal decision because the law is a law that is a more liberal law.
That’s really the difference. It is not that well, we don’t have, they didn’t have cars back then, so therefore it’s not, but we know that these applications are going to continue to take points as we have that are going to cover components that were not present in society at that time.
Jennifer:
Right. Is there anything else you want to say just quickly to sort of sum up about the hearings and your experience?
Senator Blackburn:
It is going to be an honor to vote for a constitutionalist judge, who is going to abide by the rule of law, abide by the Constitution, and is going to call balls and strikes.
Jennifer:
Well, thank you for joining us, Senator Blackburn. It’s a pleasure having you on SheThinks.
Senator Blackburn:
Thank you.
Jennifer:
It’s a pleasure having some female conservatives on the Judiciary Committee and watching you feisty ladies in action. So thank you for all that you do.
Senator Blackburn:
Thank you. Bye bye, now.
Jennifer:
And if you’re interested in learning more about the Supreme Court and the nominations process, check out the work of the Independent Women’s Law Center @iwf.org, and be sure to check out our Supreme Court resource page. From all of us here at Independent Women’s Forum, you are in control. I think, you think, she thinks.