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Sen. Cory Booker, D-N.J., pressed Supreme Court nominee Amy Coney Barrett on her views on racism and implicit bias in an extended exchange during day two of her confirmation hearing on Tuesday.
The former Democratic presidential candidate said that he was “troubled” by remarks Barrett had made that issues of racial justice and equality were questions of policy rather than judicial views. Booker asked Barrett if she was “surprised” to learn the findings of a U.S. Sentencing Commission study that found Black defendants were more likely to face harsh mandatory minimum sentences than White defendants in similar cases.
“I don’t know, Sen. Booker, that seems an odd thing for me to express an opinion on,” Barrett said in response.
“I’m not asking – these are facts. These are just facts,” Booker said.
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“I’m not familiar with that study,” Barrett responded. “As you and I have discussed, I am aware that there is evidence and there have been studies of systemic racism or implicit bias in the justice system, so I am aware of that issue.”
Booker pressed Barrett on whether she has heard cases on the subject and asked the nominee if she believed there was implicit racial bias in the criminal justice system.
“Senator, it would be hard to imagine that a criminal justice system as big as ours not having any implicit bias,” Barrett said.
Booker referenced a case involving a Black traffic patrol officer in Illinois who alleged he had been fired for his complaints about racial discrimination in the workplace. The senator noted that Barrett ruled a supervisor’s use of the N-word toward the employee did not prove a hostile work environment that contributed to his firing.
Booker added that Justice Brett Kavanaugh, in a similar case, had ruled that the use of the N-word by a supervisor in the workplace “suffices by itself” to establish a racially hostile work environment.
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“I’m very surprised to have to make this point at all, but even a staunch conservative like Justice Kavanaugh, in my questioning of him, spoke to the obvious harm here in a way that you don’t seem to,” Booker said.
Barrett pushed back on Booker’s remarks.
“Senator Booker, that opinion does not take a position different than Justice Kavanaugh. It expressly, and was written very carefully, to leave open the possibility that one use of that word would be sufficient to make out a hostile work environment claim,” Barrett said.
The nominee added that the plaintiff Booker referenced did not plead his case to say the use of the racial slur altered the terms of his employment and had based his hostile work environment claim on a supervisor’s “use of expletives at him based on poor work performance.”
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“As a panel, we were constrained to decide based on the case the plaintiff had presented before us,” she added.
Booker’s earlier questions sought Barrett’s response to a number of current political debates, including President Trump’s recent refusal to commit to a peaceful transfer of power. Barrett declined to offer an opinion on the situation.
The senator also asked Barrett if she would condemn White supremacy. Barrett said that she did.
“I wish our president would say that so resolutely and unequivocally as well, but we are at a time that Americans are literally fearful because their president cannot do that in the resolute manner you did," Booker said. "I’m sorry that question even had to be asked at this time.”
Senate hearings on Barrett’s Supreme Court confirmation are scheduled to continue through Thursday.
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