Dems circulate misleading video purporting to show Amy Coney Barrett opposing filling SCOTUS seat if it would ‘dramatically flip the balance of power’
Full statement: “If you look back at, say, the six [justices] that were confirmed in the 20th century in a presidential election year, all but one of those was confirmed … in a period of united government, where the president and the Senate were the same political party.”
Yet another edited video is circulating that shows someone appearing to state exactly the opposite of what was actually stated. This time, the target is presumptive Supreme Court nominee Amy Coney Barrett.
All over social media, people are sharing an edited clip from a 2016 interview that completely misrepresents what Barrett stated.
Trump #SCOTUS front-runner Amy Coney Barrett, when asked whether Obama should be able to appoint a Supreme Court justice in an election year, said it's inappropriate when it would “dramatically flip the balance of power." pic.twitter.com/loLMaLrsUm
— Mark Elliott (@markmobility) September 23, 2020
A resurfaced interview that CBS News conducted with Amy Coney Barrett in 2016 shows the former law clerk for Associate Justice Antonin Scalia warning against making changes that would “dramatically flip the balance of power” on the Supreme Court in an election year.
. . . . During the nearly six-minute interview with CBS News, Barrett mentioned past cases in which new Supreme Court justices were nominated and confirmed during election years, most of which she said occurred during periods of united government. In the case of Associate Justice Anthony Kennedy, whose nomination in 1987 was approved in 1988 during a period of divided government and in an election year, Barrett said the circumstances were different from those involved with replacing Scalia.
“The wrangling for the spot, the conversation about the spot, the existence of the spot had been in play for a long time before [the election year],” Barrett said. “Moreover, Kennedy is a moderate Republican, and he replaced a moderate Republican, [Associate Justice Lewis] Powell.
“We’re talking about Justice Scalia, the staunchest conservative on the court, and we’re talking about him being replaced by someone who could dramatically flip the balance of power on the court,” Barrett continued. “It’s not a lateral move.”
The problem? Barrett was talking about a split government. In 2016, Obama was in the White House, and Republicans held the Senate. That is clearly not the case this year, with President Trump in the White House and a Republican majority in the Senate. Further, that wasn’t even the point she was making.
But the full context of Barrett’s remarks make clear she was saying no such thing. In fact, she was explicitly making a point about how rare such a scenario would be in divided government — a situation we don’t have today, with a president and Senate controlled by the same party.
Coney noted that the only recent example of a Senate controlled by the opposite party confirming a president’s nominee in a presidential election year was Anthony M. Kennedy — a Ronald Reagan appointee whom the Democratic-controlled Senate confirmed in early 1988. That vacancy was different from what was happening in 2016, she noted, because it actually came about in 1987, and the Democratic Senate was replacing a moderate Republican appointee (Lewis F. Powell Jr.) with a moderate Republican appointee.
“We’re talking about Justice Scalia, the staunchest conservative on the court, and we’re talking about him being replaced by someone who could dramatically flip the balance of power in the court,” Barrett said. “It’s not a lateral move.”
That’s not taking a position on what’s appropriate; it’s merely summarizing what happened. But beyond that, she was explicitly talking about divided government, which doesn’t apply in 2020.
“The question is what does this precedent establish, and I don’t think it establishes a rule for either side in the debate,” Barrett said. “If you look back at, say, the six [justices] that were confirmed in the 20th century in a presidential election year, all but one of those was confirmed … in a period of united government, where the president and the Senate were the same political party.”
That last part is missing from the clip making the rounds, and it is the point she makes at the beginning of her discussion of the empty Justice Scalia seat, not at the end (full video below).
Joe Scarborough was among the many who shared this video, but he deleted that tweet when it was pointed out to him that it was deceptively edited.
Thanks, Matt. There have been 3 or 4 times this year something like this has happened. And this happened the same time I was telling Democrats and the media to be fair to her her and stay away from her faith. I’m deleting Twitter from my phone. Thanks again for passing along. https://t.co/Ex2TMLvA6G
— Joe Scarborough (@JoeNBC) September 26, 2020
The Washington Examiner notes that the part circulating now has been taken completely out of context.
She was then asked about comments Sen. Marco Rubio made against confirmations during a presidential election year.
Barrett explained that there were six cases of such confirmations during the 20th century but said of the historical record, “I don’t think it establishes a rule for either side in the debate.”
She noted that of the six cases, five came when the same party controlled both the White House and Senate, which meant that there was no strong disagreement.
She then pointed out that the one exception was Anthony Kennedy being confirmed in 1988.
“The arguments will be that that situation was distinguishable,” she said, clearly signaling that what follows is her characterizing the arguments rather than articulating her own position.
She went on to explain that, “The vacancy did not arise in the presidential election year. It arose the year before, in June, when [Justice Lewis] Powell retired. And Justice Kennedy was nominated in November of the prior year. Moreover, he was nominated after [Robert] Bork’s nomination had failed and [Douglas] Ginsburg withdrew his nomination. So the wrangling for the spot, the conversation about the spot, the existence of the spot, had been in play for a long time before that.”
Only then did she get to the part that is now being stripped of all context: “Kennedy is a moderate Republican, and he replaced a moderate Republican, Powell. We’re talking about Justice Scalia, the staunchest conservative on the Court, and we’re talking about him being replaced by someone who could dramatically flip the balance of power on the Court. It’s not a lateral move.”
. . . . As she wrapped up, she again made it abundantly clear that she wasn’t taking a position one way or another on what ought to happen and that neither side is clearly in the right.
“In sum, the president has the power to nominate, and the Senate has the power to act or not, and I don’t think either one of them can claim that there’s a rule governing one way or the other,” she said.
Here’s the full interview:
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