Pence, Harris Brawl Over Trump's Judges, Bigger High Court

By Jeff Overley
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Law360 (October 8, 2020, 12:28 AM EDT) -- In their first and only debate, Vice President Mike Pence and Sen. Kamala Harris clashed Wednesday over President Donald Trump's striking success in adding new federal judges and whether Democrats might expand the U.S. Supreme Court to erase a conservative supermajority.

Mike Pence and Kamala Harris sparred over the Supreme Court vacancy and court-packing at Wednesday's vice presidential debate, among other issues. (AP Photo/Morry Gash, Pool)

The Republican incumbent and the California Democrat traded verbal blows cordially yet forcefully for 90 minutes in their Salt Lake City showdown at the University of Utah, where moderator Susan Page of USA Today and the candidates themselves repeatedly steered the conversation toward the federal judiciary.

Sparks began flying when Page noted that Harris, the running mate of former Vice President Joe Biden, sits on the Senate Judiciary Committee. The committee will hold four days of hearings next week on Trump's nomination of Seventh Circuit Judge Amy Coney Barrett to fill the Supreme Court seat of the late Justice Ruth Bader Ginsburg.

Pence quickly recalled the 2018 confirmation hearing for Justice Brett Kavanaugh, where Harris called the process "a sham" for failing to seriously consider sexual assault allegations against the nominee. Harris also grilled Justice Kavanaugh during the hearing over any contacts with Kasowitz Benson Torres LLP, which had represented Trump, regarding special counsel Robert Mueller's investigation into Russian interference in the 2016 presidential election.

"In the hearing next week, unlike [what] Justice Kavanaugh received with treatment from you and others, we hope she gets a fair hearing," Pence said.

The vice president also brought up Judge Barrett's confirmation hearing for the Seventh Circuit in 2017, where Sen. Dianne Feinstein, D-Calif., sparked an outcry among religious conservatives by telling Judge Barrett, a devout Catholic, that "dogma lives loudly within you, and that is a concern to me."

"We particularly hope that we don't see the kinds of attacks on her Christian faith that we saw before," Pence said.

Harris swiftly responded, "Joe Biden and I are both people of faith, and it's insulting to suggest that we would knock anyone for their faith."

The Golden State's junior senator then argued that confirmation of a new justice should wait until after the Nov. 3 election.

"People are in the process of voting right now," she said. "Let the American people fill that seat in the White House, and then we'll fill that seat on the United States Supreme Court."

Judge Barrett's confirmation would give the high court a 6-3 conservative majority, raising fears among abortion-rights supporters that the justices would overturn Roe v. Wade and leave it to states to decide whether abortion should be lawful. Pence and Harris both dodged Page's question about what they'd want their home states to do about abortion laws in that scenario.

"I would never presume how Judge Amy Coney Barrett would rule on the Supreme Court ... but we'll continue to stand strong for the right to life," Pence said.

The vice president then moved the discussion to whether Democrats would try to nullify conservative dominance of the Supreme Court by expanding it to have more than nine justices.

"Your party is actually openly advocating adding seats to the Supreme Court ... if you don't get your way," Pence said. "This is a classic case of, if you can't win by the rules, you're going to change the rules."

Harris didn't say whether a Biden administration would try to expand the high court. But she sought to turn the tables by pointing out that Trump has reshaped the federal courts at a historic pace by winning the confirmation of more than 200 judges, including more than 50 circuit court judges.

"Let's talk about packing the court," Harris said. "I have witnessed the appointments, for lifetime appointments, to the federal courts — district courts, courts of appeals — people who are purely ideological, people who have been reviewed by legal professional organizations and found to have been not competent or substandard."

She added, "And do you know that of the 50 people who President Trump appointed to the courts of appeals for lifetime appointments, not one is Black? This is what they've been doing. You want to talk about packing the court, let's have that discussion."

Harris and Pence both have law degrees. The vice president practiced law for a few years starting in the late 1980s at an Indianapolis firm before serving in Congress, becoming Indiana's governor and signing on as Trump's running mate in 2016.

Harris served as San Francisco district attorney and California attorney general before winning election to the U.S. Senate. Her long legal career came up when Pence accused Biden of smearing police as biased against minorities, saying that the Democratic candidate inflicted a "great insult" on law enforcement.

"We don't have to choose between supporting law enforcement ... and supporting our African American neighbors and all of our minorities," Pence said.

"I will not sit here and be lectured by the vice president on what it means to enforce the laws of our country," Harris replied. "I am the only one on this stage who has personally prosecuted everything from child sexual assault to homicide. I am the only one on this stage who has prosecuted the big banks for taking advantage of America's homeowners."

The rivals sat at desks divided by plexiglass shields that were installed because of concerns about a sizable outbreak of COVID-19 at the White House. Numerous people, including Trump, tested positive for the novel coronavirus after Judge Barrett's nomination was announced at a recent White House ceremony where face masks and social distancing were widely disregarded.

The pandemic was a hot topic Wednesday, with Harris observing that the U.S. has experienced more than 210,000 fatalities and roughly 7.5 million infections on Trump's watch.

"The American people have witnessed what is the greatest failure of any presidential administration in the history of our country," Harris said.

She said Trump and Pence "still don't have a plan" for national testing, contact tracing and vaccine administration, echoing a refrain Biden used at last week's presidential debate.

Pence, who has chaired the White House's coronavirus task force, depicted Harris' comments as a rebuke of not only the Trump administration but also the American people, suggesting she was blaming them for coronavirus cases that have once again started rising in many states.

"When you say what the American people have done over these last eight months hasn't worked, that's a great disservice to the sacrifices the American people have made," he said.

The candidates also sparred briefly over a pending Supreme Court case, brought by Republican state attorneys general and supported by Trump, that's aimed at invalidating the entire Affordable Care Act.

"The contrast couldn't be more clear," Harris said. "They're trying to get rid of the Affordable Care Act. Joe Biden is saying, 'Let's expand coverage.'"

Pence did little to push back on concerns that the case, if successful, would eliminate coverage for roughly 20 million Americans and wipe out protections for any Americans with preexisting conditions. 

"Obamacare was a disaster," he said.

The next presidential debate is set for Oct. 15.

--Editing by Jay Jackson Jr.

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