BY: ADAM KELSEY, ABC NEWS
(WASHINGTON) — A key Republican member of the Senate Judiciary Committee argued Sunday that Judge Amy Coney Barrett’s potential future on the nation’s highest court shouldn’t hinge on how she may rule in regard to “a single case,” such as Roe v. Wade.
“You know, only time can tell what will happen to any one precedent,” Sen. Mike Lee, R-Utah, who supports Barrett’s Supreme Court nomination, said on ABC’s “This Week” Sunday. “Anytime someone is looking at overruling a precedent, it’s a lot more complicated than people might think.”
“In any event, you can’t look at the confirmation of a Supreme Court justice and and boil down that jurist’s contribution to the law, past and future, to what they might do with a single case,” he continued.
Lee, a second-term senator and an attorney who once clerked for Supreme Court Justice Samuel Alito when he was a judge on the U.S. Court of Appeals for the Third Circuit, will be among the first members of the Senate to question Barrett when she appears before the Senate Judiciary Committee. Sen. Lindsey Graham, R-S.C., the committee’s chairman, said Saturday night that the hearing will begin the second week of October.
On “This Week,” Lee characterized Trump’s nomination of Barrett as a positive for his reelection campaign, despite a new ABC News/Washington Post poll showing that a majority of Americans believe the winner of November’s election should appoint the new justice.
“President Donald Trump campaigned in 2016, he’s campaigning again this time, promising to appoint judges to federal courts and justices to the U.S. Supreme Court who are textualists and who are originalists,” he said. “This is exactly what he promised to do and he’s fulfilling that promise. I think the American people respect somebody who’s willing to stand behind his campaign promises, which is what he’s doing with Judge Barrett.”
In addition to reproductive rights, one of the key issues any new justice is expected to rule on will be the legality of the Affordable Care Act. Despite the popularity of the law’s protections for insured Americans with pre-existing conditions, Lee continues to believe the act is unconstitutional. A potential Supreme Court decision in line with his thinking could strike down those protections as well.
“A lot of your colleagues are concerned that that forthright opinion is going to cost [Republicans] on Nov. 3,” ABC News Chief Anchor George Stephanopoulos noted Sunday.
“We’re talking about Judge Barrett here, and we’re talking about constitutionality. Judge Barrett will look at this not on the basis of what’s politically expedient, she’d look at it on the basis of constitutionality,” Lee responded, after earlier noting Barrett shouldn’t be “tarnish[ed]” by her position on a law he blamed Congress and Chief Justice John Roberts for advancing.
The senator wouldn’t offer his opinion on whether Barrett should recuse herself from any matters involving the presidential election — a position Sen. Dick Durbin, D-Ill., a fellow Judiciary Committee member voiced on “This Week” earlier in the morning. But he did argue that Trump’s concerns about a potential deadlocked court are legitimate and aren’t necessarily related to creating a majority for himself should the election end up in the courts.
“The dangers of a four-four court are significant,” Lee said. “These were dangers that were outlined extensively by Democrats in 2016 when they wanted us to confirm [Obama nominee Merrick] Garland.”
“And Republicans like you said it was no problem at all,” Stephanopoulos countered. That year, Lee wrote that “the Court has very ably dealt with temporary absences in the past and will do so again.”
“Well, one can get around it,” Lee responded. “We didn’t say it was no problem at all. We said that there are procedures whereby a four-to-four split can result in the affirmance of a lower court decision. But the dangers themselves, the risks, are well-known. It’s not wrong for the president to point out that it might be a good thing to have a court that’s fully empaneled.”
On “This Week,” the senator was also pressed on Trump’s criticism of vote-by-mail expansion efforts given its successful implementation in his home state of Utah. Lee allowed that “there haven’t been significant problems” with mail-in ballots in the Beehive State, but nevertheless came to the president’s defense.
“The president’s concern is a legitimate one and I don’t think we ought to dismiss it,” he said, despite FBI Director Christopher Wray testifying before the Senate Homeland Security and Governmental Affairs Committee this past week that the bureau has “not seen, historically, any kind of coordinated national voter fraud effort in a major election, whether it’s by mail or otherwise.”
“Based on what evidence?” asked Stephanopoulos.
“Based on the fact that in any election you go through a whole lot of procedures, or you should go through a whole lot of routine procedures, to make sure that there’s not tampering,” Lee said. “Human nature is such that people might cheat and you want to make sure that you’ve got in place mechanisms designed to deter that, designed to detect that, and designed to prevent that.”
“Just to be clear, you’ve had no significant problems in your state with mail and voting?” Stephanopoulos asked.
“No, no it’s worked fine in Utah,” Lee said. “But again, George, it’s important to remember, whether we’re talking about mail-in ballots or any other form of potential election fraud, the canard that, well, you can’t prove that it’s happened on any widespread basis in the past — it is very different than saying there’s no reason to worry about it ever.”
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