(Headline USA) Supreme Court nominee Amy Coney Barrett brushed off the coordinated efforts of Democrat members on the Senate Judiciary Committee to turn her confirmation into a political wedge on Tuesday, the second day of her congressional hearing.
Democrats peppered Barrett with overtly partisan questions, ignoring the policy established by former Sen. Joe Biden during the confirmation of late Justice Ruth Bader Ginsburg, whom Barrett was named last month to replace.
They demanded that she clearly state her positions on hot-button issues like abortion, gun rights and election disputes.
But the 48-year-old appellate court judge demured, pointing to the responses of prior justices, such as Obama-nominated Elena Kagan, in declining to give a “thumbs up or thumbs down” grade to past court precedents.
Barrett said that prejudicially declaring her stance in a hypothetical future case would be a violation of ethics since she is still a sitting judge in the 7th Circuit, regardless of whether she is confirmed to the Supreme Court.
“Judges can’t just wake up one day and say I have an agenda—I like guns, I hate guns, I like abortion, I hate abortion—and walk in like a royal queen and impose their will on the world,” Barrett told the committee.
“It’s not the law of Amy,” she said later. “It’s the law of the American people.”
Wading into the Abortion Row
Barrett—a devout Catholic, but also an avowed textualist and originalist in her judicial philosophy—said that unequivocally broadcasting her disposition on a controversial issue risked not only limiting her own impartial reasoning ability but also encouraging more lawsuits to force a favorable ruling on the matter.
“Senator, I completely understand why you are asking the question,” she told ranking minority member Dianne Feinstein, D-Calif., in response to a barrage of abortion questions.
“But again, I can’t pre-commit or say, ‘Yes, I’m going in with some agenda,’ because I’m not. I don’t have any agenda,” she continued. “… I have an agenda to stick to the rule of law and decide cases as they come.”
Nonetheless, a frustrated Feinstein repeatedly baited the nominee to elaborate on how she would handle landmark abortion cases, including Roe v. Wade and the follow-up Pennsylvania case Planned Parenthood v. Casey.
Although there are no current abortion cases on the court docket, several state and federal lawmakers have put forth pro-life “heartbeat” laws that seem determined to make their way before the court in the near future.
Such laws would not necessarily seek to overturn the former precedent and ban abortions altogether, but they would likely impose greater constraints and regulations on when the procedures were permissible and would bar late-term abortions once a pre-born infant is capable of feeling pain.
Other lawsuits might try to kick the issue back to the individual states, allowing them to determine for themselves the conditions under which to permit abortions.
Feinstein, recounting her time in the 1950s as a college student at Stanford University, said she had a different view after seeing women go to Mexico or try to perform their own abortions before the 1973 Roe decision made them legal.
“It’s distressing not to get a good answer,” Feinstein told the judge.
All Eyes on November
Barrett was grilled in 30-minute segments by Democrats who remained strongly opposed to allowing President Donald Trump a third Supreme Court appointment prior to the upcoming election.
Her presence would shift the court’s ideological balance in a decidedly more conservative direction than with the unabashedly liberal Ginsburg, a Bill Clinton appointee.
But Republicans—still reeling in some ways from the skulduggery of the Left’s 2018 attempt to derail Justice Brett Kavanaugh‘s confirmation with uncorroborated rape allegations—shrugged off the distinct possibility that Barrett may likewise receive a party-line vote.
They argued that Trump’s 2016 election and the addition of a handful of Senate seats in the 2018 midterms offered a clear mandate, which Democrats were more or less powerless to stop.
Underscoring his confidence, committee chair Lindsey Graham, R-SC, further roiled Feinstein and others, announcing Monday that he planned to speed up the pace by holding an initial committee vote on Thursday morning, before the hearings had officially finished.
That would allow final approval by the panel one week later and a vote for confirmation by the full Senate on Oct. 26.
Amid Democrat hand-wringing over whether a disputed Nov. 3 election could, once again, be thrown to the high court, Barrett declined to say whether she would recuse herself from any election-related cases involving Trump.
Such was the situation when the court agreed to hear Bush v. Gore in 2000. The court’s Republican majority decided in the split case that Florida’s secretary of state had the right to certify GOP candidate George W. Bush’s victory even as Democrat rival Al Gore pushed for a more extensive recount in several counties where ballot mishandling was rife.
That decision was among the first signs of trouble for the long-buffered court, which has increasingly been relied upon to resolve polarizing disputes that legislative gridlock is unable to satisfactorily address.
However, Barrett testified she has not spoken to Trump or his team about the court’s role in resolving election matters, and that doing so would be a “gross violation” of judicial independence.
Pressed by panel Democrats, she also declined to commit to recusing herself from post-election cases. She noted that even the recusal process had very strict policies regulating it and would require consultation with other justices and law clerks.
“I can’t offer an opinion on recusal without short-circuiting that entire process,” she said.
Obsessing over Obamacare
Democrats on the committee spent a considerable amount of time on Monday, during the first day of hearings, hyping a Nov. 10 case that involves the Affordable Care Act.
The case, Texas v. California, aims to determine whether the sweeping 2010 healthcare legislation is still applicable after the Trump-era nullification of the controversial individual mandate, which required people to either obtain insurance or pay a penalty.
In an earlier case, the court—specifically Chief Justice John Roberts, who cast the deciding vote and authored the majority opinion—was criticized for stepping beyond a literal reading of the statute to reinterpret the penalty as a “tax” since Congress otherwise lacked the authority to enforce it under interstate commerce regulations.
Barrett distanced herself from past writings perceived as critical of Roberts’s admittedly ‘unnatural’ interpretation.
She also rejected a false assertion from Feinstein that her involvement in the pending case might jeopardize protections for pre-existing medical conditions—an aspect of the law not addressed by the case’s question of severability.
“So far as I know, the case next month doesn’t present that issue … it’s not a challenge,” Barrett said.
However, “any issue that would arise under the Affordable Care Act or any other statute should be determined by the law,” she told the senators. “… If there were policy differences or policy consequences, those are for this body.”
Nonetheless, Sen. Patrick Leahy, D-Vt., tried to put the baffled judge on the spot by asking her to recite several details concerning the Obamacare law’s statistics.
She could not recall the specifics, including that 23 million people are covered by the law or that more than 2 million young people under the age of 26 are on their parents’ health insurance.
Prior to the passage of Obamacare, most insurance companies cut off adult children once they entered into the workforce and ceased being dependents for tax purposes.
Democrats also probed Barrett’s views on gun ownership and racial equity.
At one point, Sen. Dick Durbin, D-Ill., drew an emotional response from the mother of seven—including two black children who were adopted from Haiti.
Barrett described watching the video of the death of George Floyd at the hands of police.
“Racism persists,” she said, adding that Floyd’s death had a “very personal” effect on her family and that she and her children wept over it.
But she told Durbin that “making broader diagnoses about the problem of racism is kind of beyond what I’m capable of doing as a judge.”
‘A Seat at the Table’
During his questioning, Graham anticipated the Democrats’ attacks by asking Barrett if she would be able to shelve her personal beliefs to adhere to law.
“I have done that,” she said. “I will do that still.”
Barring a dramatic development, Republicans appear to have the votes to confirm Barrett to a lifetime seat on the court, and they spent their time portraying her as a thoughtful judge with impeccable credentials.
Graham praised her the best possible nominee Trump could have chosen.
He noted that conservative women deserved to have a voice on the court just as Ginsburg and other outspoken liberal justices had ensured that women of their persuasion were amply represented.
“… I will do everything I can to make sure that you have a seat at the table, and that table is the Supreme Court,” Graham told Barrett.
Adapted from reporting by the Associated Press