SALT LAKE CITY — Sen. Mike Lee lamented what he sees as attempts to politicize the courts, telling U.S. Supreme Court nominee Amy Coney Barrett on Monday that she’s a judge not a policymaker.
“These tactics of creating fear and uncertainty and doubt, these tactics that result in relentless protests outside of the one branch of government that isn’t political astound me, they dismay me, they disappoint me. They reflect that fact that we have allowed for the politicization of the one branch of the federal government that is not political,” the Utah Republican said in his opening statement at Barrett’s confirmation hearing.
The Constitution is not just a “judicial thing” but belongs to the executive and legislative branches as well, he said.
Lee said it’s one of the many reasons “I will object anytime anyone tries to attribute to you a policy position and hold you to that. You’re not a policymaker, you’re a judge. That’s what we’re here to discuss.”
The Senate Judiciary Committee opened what is expected to be four days of hearings on Barrett, who President Donald Trump nominated to replace the late Justice Ruth Bader Ginsburg.
Monday’s hearing was confined to opening remarks from committee members and Barrett, a federal appeals court judge. Senators will start questioning her Tuesday.
Democrats on the committee focused largely on health care in their opening statements, some showing pictures of Americans enrolled on federal insurance plans suffering during the ongoing COVID-19 pandemic. They say Barrett would be a threat to the Affordable Care Act, abortion rights, marriage equality and environmental protections.
Sen. Dick Durbin, D-Ill., said Republicans have obsessed over repealing Obamacare but haven’t been able to do it. He said Trump is sending Barrett to the high court to do his “political chores” — abolish Obamacare, rule in his favor on any election contest and more.
“You cannot feel good about a president cheapening this historic moment. The future of the Affordable Care Act and so many others hang in the balance,” he said.
Lee attended the hearing in person after testing positive for the coronavirus more than a week ago. He cited a letter from the Centers for Disease Control and Prevention saying he had met the guidelines to end COVID-19 isolation for those with mild to moderate forms of the virus.
“Specifically, it has been greater than 10 days since symptom onset, you have had no fever in absence of fever reducing medication for at least 24 hours, and your other symptoms have improved,” according to the letter.
In a post-hearing virtual press conference hosted by the conservative advocacy group Heritage Action for America, Lee spoke out against Democrats. He particularly railed on them for suggesting that confirming Barrett would be “taking a way little Timmy’s health care ... and you must love Satan and want to torture kittens and puppies at the same time that you do that.”
“This, of course, is nonsense,” Lee said. “The Affordable Care Act was not written on stone tablets by the hand of God and handed down to Moses on Mount Sinai.”
In the hearing, Lee said Democrats’ arguments against Barrett were geared more toward policy and legislation than on judicial confirmation. He said it’s not the committee’s role to decide whether Barrett has compassion for the people shown in the photos, adding that he believes she has compassion for all people.
“You, in fact, are not being reviewed for a legislative position or policymaking position. You’re being reviewed for a position on our nation’s highest court where you’ll be asked from time to time to decide cases based on the law and the facts,” he said.
Barrett in her opening remarks said courts have a vital responsibility to enforce the rule of law.
“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 elected by and accountable to the people. The public should not expect courts to do so, and courts should not try,” she said.
Barrett also recognized Ginsburg as a “model of grace and dignity” throughout her tenure on the court.
“I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place. I will be forever grateful for the path she marked and the life she led,” Barrett said.
Democrats complained that Republicans are rushing Barrett’s confirmation through just days before the Nov. 3 general election in direct contradiction to blocking the outgoing Obama administration’s nominee without a hearing four years ago.
Voting has already started in some states. Utah ballots will be mailed on Tuesday.
“Senate Republicans are pressing forward full-speed ahead to consolidate a court that will carry their policies forward, with I hope some review of the American people,” said California Sen. Dianne Feinstein, the committee’s ranking Democrat.
Lee told Barrett a Supreme Court justice doesn’t set the course of the country because the court is confined to the case brought before it.
“You look not into the future but in the past. You see the world, as it were, through a rear-view mirror. Your job is to decide what the law says when people disagree as to the law’s meaning,” he said.
Barrett told the committee that she adopted the judicial philosophy of the late Justice Antonin Scalia, for whom she worked as a law clerk.
“A judge must apply the law as written, not as the judge wishes it were. Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best known opinions, that is what it means to say we have a government of laws, not of men,” she said.
Lee said at the press conference that as a judge, Barrett is being asked to read words and decide what they meant when they were written into a law or the Constitution.
“That’s it. It’s not that complicated. It’s not that sexy,” he said. “It’s not the kind of thing that people should be lighting themselves on fire about and yet they are.”
Lee said that Barrett acknowledged much of what Democrats said in the hearing was “bunk, and she did it with a smile. She did it without having to use the word jackwagon or anything close to it.”
Sen. Ben Sasse, R-Neb., used the word “jackwagon” during the hearing. Lee said he had never heard the word before and had to ask Sasse what it meant, learning it apparently is similar to jackass.
Lee used the word several times during the press conference until catching himself and saying he needed “to stop using that word. It’s getting habitual now.”