By Amber Phillips, Washington Post–
Senators on the Judiciary Committee spent nearly 12 straight hours Tuesday asking questions of Amy Coney Barrett, President Trump’s Supreme Court nominee. They’ll repeat the process Wednesday.
Here are our takeaways from the first full day of questioning.
1. This is going well for Republicans
Barrett is not prone to being flustered or flubbing her arguments. And her teaching background was evident when she described her judicial philosophy in plain English that may appeal even to those who worry she will take the court in a more conservative direction. Like this explanation of when the court actually can chime in on an issue:
“A judge can’t walk in one day and say, I feel like visiting the question of health care and telling people what I think,” she said. “We can’t even think about the law or how it would apply until litigants bring a real live case with real live parties and a real-life dispute before us.”
That’s not reassuring to Democrats who see challenges to abortion or LGBT rights barreling down the legal pike — or the challenge to Obamacare before the court next month. “They’re scared that your confirmation would wrest from them the very health-care protections that millions of Americans ought to maintain,” Sen. Patrick J. Leahy (D-Vt.) said Monday, telling Barrett of his constituents.
But Barrett’s point, over and over again, was that she’s not going to single-handedly reshape life in America. “I’m not here on a mission to destroy the Affordable Care Act,” she said.
That consistent message helps Republicans, who are pushing this nomination through in politically difficult circumstances, just weeks before an election in the middle of a pandemic.
Democrats did make a potentially effective, though esoteric, political point that corporate interests, particularly on the right, help shape American courts. Sen. Sheldon Whitehouse (D-R.I.) tried to argue that Republicans’ rush to fill this vacancy before the election is driven by those interests.
“You can’t ignore the broader context,” Sen. Christopher A. Coons (D-Del.) said, tying that argument back to Barrett. “As you are expressing opinions in an academic journal [about the ACA], there is literally an army of donors and lawyers and activists and lobbyists who are funneling new judges into our courts.”
That may resonate with some Americans, but it’s not going to change anything regarding the task at hand. Barrett still has hours of questions ahead of her, but on Tuesday, she did exactly what she needs to do to keep Republicans united around putting her on the court before the election.
2. Barrett leaned on precedent to kind of reassure her critics
The Supreme Court over the years has upheld the Affordable Care Act, same-sex marriage and abortion rights, all issues that could come before the court again. The next iterations would be before a much more conservative court with Barrett on it.
Barrett wouldn’t comment on how she might decide on any of those issues, except to offer reassurance that she adheres to stare decisis. It’s a principle the former law professor explained is Latin for “Stand by the thing decided and do not disturb the calm.”
Essentially, it means a conservative Supreme Court couldn’t just upend these previous rulings without good reason, including considering what lower courts say and how many people rely on the current law. She used it to offer a skeptical view that the court would, say, overturn legalized same-sex marriage.
Barrett’s most telling exchange on Roe vs. Wade
But on other major questions about settled law, Barrett dodged. She wouldn’t say how she would rule on whether a president can delay an election. She wouldn’t commit to recusing herself from a case in which she might have a conflict of interest. (Democrats want her to recuse herself from any case about the presidential election results.) Nor on how she would rule on a huge case coming up before the court in November on whether to overturn the Affordable Care Act.
Barrett personally opposes abortion, but she has previously acknowledged that the legal right to abortion is settled law. When asked Tuesday whether she thought Roe v. Wade was wrongly decided — as one of her mentors, the late Justice Antonin Scalia had said — she would not commit.
Sen. Dianne Feinstein (D-Calif.): Do you agree with Justice Scalia’s view that Roe was wrongly decided?
Barrett: Senator, I completely understand why you are asking the question. But again, I can’t comment or say, yes, I’m going in with some agenda because I’m not.
Later, she said she didn’t think Roe v. Wade is a “super precedent,” meaning it’s so settled that no one is challenging it anymore. (Like cases on segregation.)
Legal experts on both sides think Barrett would support severely restricting or even overturning abortion rights. And Sen. Kamala D. Harris (Calif.), Democrats’ vice-presidential nominee, said in so many words she thought Barrett on the court “poses a threat to safe and legal abortion in our country.”
3. She framed herself as more open-minded than her critics paint her
Barrett’s refusal to say Roe v. Wade was correctly decided and isn’t a super precedent will surely give fuel to her critics. Harris noted that the late Justice Ruth Bader Ginsburg was more forthcoming in her own confirmation hearing about how she felt on this basic issue.
But in one of the first chances Barrett had to talk about why she agreed to be nominated, she pushed back on a narrative out there about her. Like:
I’m aware of a lot of the caricatures that are floating around. So I think what I would like to say in response to that question is that, look, I’ve made distinct choices. I’ve decided to pursue a career and have a large family. I have a multiracial family. Our faith is important to us. All of those things are true. But they are my choices. And in my personal interactions with people, I have a life brimming with people who’ve made different choices, and I’ve never tried to impose my choices on them. And the same is true professionally in how I apply the law.
Under questioning from Senate Judiciary Chairman Lindsey O. Graham (R-S.C.) about whether she could set aside her Catholic faith in deciding cases, she said, “I can.”
4 Barrett insists she’s ‘not hostile to the ACA’
Democrats got no solid answers about how Barrett would rule if she gets on the court in time to hear a Republican challenge to the Affordable Care Act, which the Trump administration is urging the Supreme Court to strike down entirely in the next few months. She said that no one at the White House asked how she would decide and that “the courts should not be politicized.”
But she did distance herself from her own critical views of the court’s previous decisions upholding Obamacare.
She stuck by her reading of the law then, but she said those challenges are different from the one before the court in November. Republican attorneys general are asking the court to strike down the entire law now that Republicans in Congress zeroed out the tax mandate for having health insurance.
Barrett said the job of the justices is to decide whether the law can still stand without a tax mandate — by “severing” it from the rest of the law — or whether that’s legally impossible. She said she would consider the real-world consequences of her decision and what she thought Congress intended those consequences to be when Republicans fundamentally changed how the mandate works.
“I’m not hostile to the ACA,” she said.
Acutely aware of the political debate over how getting rid of the law would make it more difficult for people to get affordable health-care coverage, especially those with preexisting conditions, she also said of the upcoming challenge: “It’s not a challenge to preexisting conditions coverage or to the lifetime maximum relief from a cap.”
But preexisting-conditions coverage is a huge part of this case, given that what the justices decide will determine whether the ACA stands, and that is what guarantees consumers these protections.
5. Trump looms large
The president hasn’t made things easy for Barrett and Senate Republicans as they try to argue that she would be an independent justice fully capable of setting aside her personal beliefs. Democrats ask: What about the beliefs of the person who nominated her to the court? Trump has said he wants Obamacare overturned, tweeted that it “Would be a big WIN for the USA!” if the Supreme Court strikes it down and said the court needs nine justices so it can decide any election-related cases.
Sen. Amy Klobuchar (D-Minn.) asked Barrett whether the president should be taken at his word in all this. Barrett adeptly dodged by trying to underscore that she’s a different person than the president.
“I can’t really speak to what the president has said on Twitter,” she responded. “He hasn’t said any of that to me. What I can tell you … is that no one has elicited any commitment in any case or even brought up a commitment in a case. I am 100 percent committed to judicial independence from political pressure.”
Later, under questioning from Sen. Cory Booker (D-N.J.), she condemned white supremacy, spoke glowingly of America’s history of peaceful transfers of power and said she does think there is racial bias in the U.S. criminal justice system. (Trump has said he doesn’t.) But when asked whether a president could pardon himself, she declined to say how she’d decide.
Barrett regularly tried to also separate herself from her personal conservative views. But as Klobuchar pointed out, Barrett has made consistently conservative decisions as a federal judge. The reality is that she is almost certainly going to be a reliably conservative vote on the court.