Judge Amy Coney Barrett left a Senate hearing room Wednesday with her confirmation prospects relatively assured, despite two days of aggressive questioning from Democrats who had hoped to block her from reaching the high court.
Democrats interrogated the 48-year-old federal judge for a second full day, pressuring her to reveal how she would consider cases related to Obamacare, abortion, voting rights, and President Trump.
But few hits landed.
Questioning concluded Wednesday. The Judiciary Committee will hear testimony Thursday from outside witnesses for and against Barrett’s nomination. The panel will also begin the process of voting on Oct. 22 to advance her nomination to the floor, and Majority Leader Mitch McConnell, a Kentucky Republican, is planning to hold a vote on her nomination in the days before the Nov. 3 election. With 51 Republicans in favor of Barrett, her path to the Supreme Court is all but assured, barring any last-minute surprise.
Democrats said they intended the hearing to “let the American people know” their view that Barrett would swing the court to the right and make rulings out of step with what the public supports.
Sen. Dianne Feinstein, of California, kicked off the questioning for Democrats by interrogating Barrett about an upcoming case that will test whether Obamacare can survive now that the individual mandate has been eliminated.
Barrett gave a lengthy and detailed explanation of severability and said that the clause is meant to ensure the will of Congress is upheld.
“That’s quite a definition,” Feinstein responded. I’m really impressed.”
Early in the hearing, Sen. Ted Cruz accused Democrats of abandoning Barrett’s second day of questioning after failing to cause any significant damage to her confirmation prospects the day earlier.
“They don’t have any substantive criticism,” Cruz, a Texas Republican and Barrett supporter, said, noting the empty chairs on the Democratic side of the dais. “This side of the aisle does not have arguments against Judge Barrett that have any chance of prevailing.”
But all Democrats on the Judiciary Committee showed up for their own turns on the second day of questioning and pressured Barrett on her allegiance to late Justice Anton Scalia’s conservative political philosophy, her past statements suggesting a willingness to overturn key federal court precedents, and whether she believed in man-made climate change.
“My core concern here is that your confirmation may launch a new chapter of conservative judicial activism unlike anything we have seen in decades,” Sen. Chris Coons, a Delaware Democrat, told Barrett.
Coons, like other Democrats on the panel, argued the legal reasoning behind Scalia’s decisions on the Supreme Court provided a kind of preview of how Barrett herself would make decisions.
But Barrett refuted the charge throughout the day.
“When I said that Justice Scalia’s philosophy is mine too, I certainly didn’t mean to say that every sentence that came out of Justice Scalia’s mouth, or every sentence that he wrote is one that I would agree with,” Barrett told Democrats.
Democrats Wednesday pressed Barrett repeatedly on the Voting Rights Act and whether she aligned herself with Scalia’s view that the Act was a form of “perpetuation of racial entitlement.”
Democrats believe the high court gutted the Voting Rights Act when it struck down one section about enforcement and monitoring.
Barrett, who is the mother of two black children, called the Voting Rights Act “obviously a triumph in the civil rights movement,” but she declined to comment on future cases related to it, providing a standard answer to similar questions from lawmakers.
“It could be before me on the court,” Barrett said.
Democrats questioned Barrett about her efforts to win the nomination to the Supreme Court.
Sen. Amy Klobuchar, a Minnesota Democrat and former presidential candidate, asked Barrett whether she was aware of Trump’s opposition to Obamacare when she wrote a law review article that was published in 2017 that asserted Chief Justice John Roberts “pushed the Affordable Care Act beyond its plausible meaning” when he voted to uphold the law in 2012.
“You are suggesting that I have animus [for the Affordable Care Act] or that I cut a deal with the president, and I was very clear yesterday that that isn’t what happened,” Barrett responded.
The second day of questioning gave Democrats another opportunity to criticize the legitimacy of the confirmation, which they say should not happen because of the coronavirus pandemic and proximity to the election.
“Today we are going through this hearing as though it’s a normal hearing, not a rush job in the midst of a pandemic 200,000 Americans dead,” Sen. Mazie Hirono, a Hawaii Democrat, told Barrett. “But the Democrats on this committee have asked and will continue to ask you questions to let the American people know that you are being put on the Supreme Court will dramatically flip the balance of power of the court further to the right, not the fair and impartial body we want the Supreme Court to be.”
Sen. Kamala Harris, who is the Democratic vice presidential nominee, tried unsuccessfully to force Barrett to reveal whether she agrees with a statement by Chief Justice Roberts, who said voting discrimination “still exists.”
Harris was also among several Senate Democrats who tried to force Barrett to express a view about man-made climate change.
Harris asked Barrett whether “COVID-19 is infectious … smoking causes cancer and whether climate change is happening and it’s threatening the air we breathe and the water we drink.”
Barrett responded that Harris, “was asking a series of questions that are completely uncontroversial … and then trying to analogize that to eliciting an opinion from me that is a very contentious matter of public debate.”
Barrett added, “I will not do that.”
Republicans who followed some accusatory questioning from Democrats often gave Barrett a chance to rebut the negative insinuations.
“Our friends across the dais have really tried to paint you as a monster with an agenda,” Sen. Marsha Blackburn, a Tennessee Republican, said.
Sen. John Kennedy, a Louisiana Republican, asked Barrett if she is a racist or a judge that favors corporations over people, as Harris suggested. Barrett replied that she was not. Kennedy also asked Barrett if she hated little warm puppies.
“I do not hate little warm puppies,” Barrett said. “We do not have a puppy in the house, but we do have a very fluffy chinchilla, and so I do not hate chinchillas, either.”
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