Judge Amy Coney Barrett told senators on the second day of her confirmation hearing that she’ll act independently if confirmed to the Supreme Court, pushing back against Democrats who questioned whether her allegiance to the late Justice Antonin Scalia or tweets from President Trump will influence her decisions.
“I’m not willing to make a deal,” Barrett told the Senate Judiciary Committee. “Not with the committee, not with the president, not anyone. I’m independent.”
Barrett, 48, faces a final round of questioning on Wednesday before the Senate Judiciary Committee hears testimony Thursday from outside witnesses and begins deliberating on whether to advance her nomination to the floor. The Judiciary panel is expected to hold a vote on Oct. 22, and the full Senate is likely to consider Barrett’s nomination the final week of October.
The questions were wide-ranging, delving not only into Barrett’s judicial viewpoints, but also her reaction to the death of George Floyd, whether her children play any musical instruments, and why Supreme Court justices wear black robes. One Democrat, Mazie Hirono of Hawaii, asked Barrett if she had ever “made unwanted requests for sexual favors.”
Democrats Tuesday largely avoided interrogating Barrett about her dedication to her Catholic faith after intense criticism that they were imposing a religious test on the nominee.
Instead, Democrats zeroed in on how Barrett might rule on key cases that will come before the Supreme Court in the coming weeks, including a hearing that could end Obamacare on Nov. 10, a Nov. 4 hearing on whether a Catholic foster care agency can reject same-sex couples, and the possibility that the court will weigh in on whether Trump can delay the Nov. 3 election.
Democratic vice presidential candidate Kamala Harris of California was among the last senators of the day to question Barrett. She used the prime-time platform to criticize the confirmation process, which the party believes should be postponed. Harris, like the other senators, tried unsuccessfully to coerce from Barrett how she would vote on an Obamacare case.
Harris asked Barrett if she would consider the “hundreds of millions of Americans” who would be adversely impacted if the Obamacare protections ended.
“It’s a question of what Congress wanted in the statute,” Barrett told Harris, describing how she would consider the case. “I can’t really say, sitting here, how they would play in or weigh in this case because that is part of the legal calculus in this case.”
Barrett told lawmakers that despite her declaration that she adheres to Scalia’s judicial philosophy embracing the original meaning of the constitution and laws, she won’t simply duplicate his reasoning. Scalia voted against Obamacare as well as the high-court decision legalizing gay marriage.
“If I were confirmed, you would be getting Justice Barrett, not Justice Scalia,” Barrett told the Judiciary Committee. “So I don’t think that anybody should assume that just because Justice Scalia decided a decision a certain way that I would too.”
Trump’s tweets and comments about the nomination loomed large over the hearing, particularly his threat to delay the election due to the potential for voter fraud or that the high court will decide the election in his favor if the outcome is unclear after Nov. 3.
“President Trump made claims of voter fraud and suggested he wanted to delay the upcoming election,” Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, said. “Does the Constitution give the president of the United States the authority to unilaterally delay a general election under any circumstances?”
Barrett told Feinstein she’d first have to hear arguments in the case and review the law, an answer she repeated throughout the day, when senators asked her specifics about potential decisions she would have to make on the Supreme Court.
“If I give off-the-cuff answers, then I would be basically a legal pundit,” Barrett explained. “And I don’t think we want judges to be legal pundits. I think we went judges to approach cases thoughtfully and with an open mind.”
Barrett later said she agreed with Democrats “that the courts should not be politicized,” but she would not pledge to recuse herself from an election-related case, which Sen. Patrick Leahy, a Vermont Democrat, and other Democratic lawmakers, asked her to do.
“Sen. Leahy I commit to you to fully and faithfully applying the law of recusal,” Barrett said. “I will apply the factors that other justices have before me, in determining whether the circumstances require my recusal or not. But I can’t offer a legal conclusion right now about the outcome of the decision I would reach.”
Senate Democrats, who are in the minority, have no power to block Barrett’s confirmation now that it appears 51 Republicans will provide a majority when the Senate votes on the nominee in the coming weeks.
Democrats instead focused on raising concerns about Barrett’s future decisions on matters of great importance to their base, especially the future of the party’s signature healthcare law, the Affordable Care Act. Party lawmakers have made the case that Barrett will swing the court toward eliminating the law because she opposes it.
“The Affordable Care Act is now being so well accepted, and I represent the largest state, and there are just over 10 million people dependent on the activities under this act and that they be sustained,” Feinstein told Barrett. “And so, there is really great concern about what your view in that case coming up.”
The Nov. 10 case centers on the survivability of Obamacare now that Congress eliminated the mandate that individuals purchase health insurance.
Democrats attempted to equate how Barrett would view the case with her previous criticism of Chief Justice John Roberts’s vote to uphold Obamacare in 2012, a move she said “pushed the Affordable Care Act beyond its plausible meaning.”
Barrett said the upcoming hearing is “not the same issue” and “not something I have ever talked about with respect to the Affordable Care Act.”
Barrett told Democrats, “I am not hostile to the ACA.”
Democrats questioned Barrett about her views on ending gun violence and how she reacted to the death of Floyd, a black man who died in police custody after an officer placed his knee on the former’s neck.
Barrett said the law upholding gun ownership rights, which the court ruled on in the District of Columbia v. Heller case, “leaves room for gun regulations … which makes me constrained not to comment on the limits of it.”
Sen. Dick Durbin, an Illinois Democrat, and Sen. Amy Klobuchar, a Wisconsin Democrat and former presidential candidate, questioned Barrett’s ruling that nonviolent felons should not lose the right to own guns but could be disqualified from voting and serving on juries.
Barrett explained that voting was a civic right, while gun ownership was an individual right.
Earlier in the hearing, Barrett told Senate Judiciary Committee Chairman Lindsey Graham, “We do own a gun” but that neither that nor her Catholic faith will interfere with her judicial independence.
Democrats raised Barrett’s past decisions as a federal judge, writings, and comments related to major issues, including adding her name in a 2006 newspaper ad that declared abortion to be “barbaric” and “a raw exercise of judicial power.”
Sen. Richard Blumenthal, a Connecticut Democrat, was among the lawmakers to question Barrett’s signature on anti-abortion literature, including the 2006 ad, which Barrett called “the statements of my personal beliefs” and not a reflection on how she would rule in a legal case.
Democrats have seized on Barrett’s declaration that Roe v. Wade, the high-court ruling legalizing abortion is “not a super-precedent.”
Barrett’s answer came in response to a question from Klobuchar and indicated that Barrett does not group the ruling with those that are considered practically untouchable by the court, such as Brown v. Board of Education, which ruled segregated education is unconstitutional. Barrett added, “It doesn’t mean it should be overruled.”
Blumenthal later told reporters that Barrett’s comments on Roe v. Wade “would be terrifying to a lot of people watching the proceeding.”
At one point, Klobuchar declared Barrett “would be the polar opposite” of the late Justice Ruth Bader Ginsburg, the iconic liberal whose seat Barrett would fill if confirmed. Klobuchar said Ginsburg fought in favor of expanding voting rights, not restricting them, and pointed to efforts by the GOP to limit ballot drop boxes in Texas and mail-in balloting during the coronavirus pandemic. Klobuchar said Ginsburg’s absence on the court “is so frightening to so many Americans out there.”
In an emotional moment, Barrett described her reaction to the viral video of Floyd’s death, an event that later sparked nationwide protests and violence. Two of Barrett’s children are adopted from Haiti and are black.
“I was there with my 17-year-old daughter, Vivian, who was adopted from Haiti,” Barrett said in response to a question from Durbin. “All of this was erupting. It was very difficult for her. We wept together in my room, and then, it was also difficult for my daughter, Juliet, who’s 10. I had to try to explain some of this to them. My children to this point in their lives have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence. And for Vivian, to understand that there would be a risk to her brother or the sons and she might have one day of that kind of brutality has been an ongoing conversation. It’s a difficult one for us, like it is for Americans all over the country.”
Barrett enjoys broad and enthusiastic support from Senate Republicans, although two GOP lawmakers, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, said they do not back confirming a Supreme Court justice in an election year.
She is considered highly qualified for the job, an opinion backed by the American Bar Association, which endorsed Barrett with its highest rating.
Sen. John Cornyn, a Texas Republican, asked Barrett during the hearing to “hold up what you have been referring to in answering our questions.”
Barrett raised a blank notepad.
“That’s impressive,” Cornyn said.
Related stories:
1. ‘I have no agenda’: Barrett deflects on upholding Obamacare and gay rights
3. Amy Coney Barrett says she won’t be ‘used as a pawn’ to favor any candidate in election case
4. ‘Racism persists in our country’: Barrett says George Floyd video was ‘very personal’ for her family
