“I’m really impressed”: Sen. Dianne Feinstein praises Amy Coney Barrett’s answer on severability

by Peter Heck · Oct 15th, 2020 8:57 am
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Last Updated Oct 20th, 2020 at 9:18 am

During her final day of testimony before the Senate Judiciary Committee, Supreme Court nominee Amy Coney Barrett managed to impress one of her most outspoken detractors.

In an exchange over the Affordable Care Act, Democrat senator and ranking member Dianne Feinstein asked Barrett what she thought about the legal concept of severability. Severability is the provision within a law that allows for a portion of the legislation to remain in effect even if other parts are struck down by a court or rendered unenforceable.

Barrett's response earned a positive reaction from Feinstein.

"I think the doctrine of severability as it has been described by the [Supreme] Court serves a valuable function of trying not to undo your work when you wouldn't want a court to undo your work. Severability strives to look at a statue as a whole and say: 'Would Congress have considered this provision so vital that — kind of in a Jenga game — pulling it out, Congress wouldn't want the statute anymore?'

So, it is designed to effectuate your intent.

Severability is designed to say: 'Well, would Congress still want the statute to stand even with this provision gone?'; 'Would Congress still have passed the same statute without it?' So, I think insofar as it tries to effectuate what Congress would have wanted, it's the [Supreme] Court and Congress working hand-in-hand."

After her elaboration on the concept, Feinstein expressed her appreciation for Barrett's elucidation, remarking, "That's quite a definition. I'm really impressed. Thank you."

Feinstein's cordial response did not please progressive activists who blasted her for "fawning over" the "illegitimate" Barrett.

With the hearings concluded, the initial committee vote on her nomination is scheduled to be brought up for a vote Thursday. Committee rules dictate that the vote then be delayed for one week, meaning October 22 is likely to be the day committee members send her nomination to the full Senate.


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