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Day 2 Recap of the Amy Coney Barrett Supreme Court Confirmation Hearings

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PHOTO CREDITS: WASHINGTON POST

The Senate Judiciary Committee spent Tuesday questioning Supreme Court nominee Judge Amy Coney Barrett, in a session featuring exchanges about judicial independence, the future of the Affordable Care Act, and any election-related cases that could come before the Supreme Court later this year. 

After more than 11 hours, Senator Linsay Graham adjourned the second day of hearings at about 8:15 p.m. after expressing pleasant surprise with the civility in the proceedings so far and complimenting the nominee. Barrett’s confirmation hearings continued Wednesday at 9 a.m. for another round of questioning from the committee’s 22 senators with each getting 20 minutes apiece.

Returning to health care and the fate of the Affordable Care Act on Tuesday, Democrats grilled Barrett on how she would rule in the upcoming Affordable Care Act case, California v. Texas. “I’m not hostile to the ACA, I’m not hostile to any statute that you have,” Barrett told Sen. Dick Durbin, D-Ill., who asked her about her criticisms of the Supreme Court’s majority opinions on several cases related to the health care law. “I apply the law, follow the law, you make the policy,” she said. “I can’t really speak to what the president had said on Twitter,” Barrett told Klobuchar. “No one has elicited any commitment in the case or brought up that commitment in the case. I am 100% committed to judicial independence from political pressure.”

Democrats also repeatedly pressed Barrett on Roe v. Wade, and whether she considers the case to be settled law. Asked by Sen. Dianne Feinstein, D-Calif., if she agreed with her mentor, the late Justice Antonin Scalia, that Roe v. Wade was wrongly decided, Barrett would show her hand. “If I express a view on the precedent one way or another, whether I say I love it or hate it, it signals to litigants I might tilt one way or another in a pending case,” she said. Barrett also told Klobuchar she didn’t consider the decision a so-called “super-precedent” that could not be overruled, unlike Brown v. Board of Education. “I’m answering a lot of questions about Roe v. Wade, which I think indicates Roe v. Wade doesn’t fall in that category,” she said.

Barrett, mostly in response to Republicans’ questions about her faith and its influence on her work, told the committee that her “personal, moral religious views” won’t impact her judicial decision-making. “Can you set aside whatever Catholic beliefs you have regarding any issue before you?” Chairman Lindsey Graham, R-S.C., asked. “I have done that in my time on the 7th Circuit. If I stay there I’ll continue to do that,” Barrett said. “If I’m confirmed to the Supreme Court, I will do that still.” 

Barrett was questioned about a 2006 newspaper ad she signed that called for overturning the “barbaric legacy” of Roe v. Wade. “I signed that almost 15 years ago in my personal capacity still as a private citizen, and now I am a public official,” Barrett told Sen. Josh Hawley, R-Mo. “I signed it on the way out of church,” she told Leahy. “It was consistent with the views of my church and simply said we support the right to life from conception to natural death.”

When asked by Sen. Dick Durbin, D-Ill., about systemic racism and the death of George Floyd while in police custody, Barrett said she had watched the video showing a Minneapolis police officer pressing his knee into Floyd’s neck with her 17-year-old daughter Vivian, who is Black and was adopted from Haiti, and that they “wept together,” and have had a “difficult” ongoing conversation about police brutality and racism. Asked by Durbin whether she views racism in America as a systemic problem, Barrett said it is “entirely uncontroversial that racism persists” in America.

Sen. Pat Leahy, D-Vt., first pressed Barrett on whether she would recuse herself from election-related cases – citing Trump’s comments in September that he wanted the court to have a full complement of judges for any lawsuits stemming from the general election. Leahy asked Barrett why she couldn’t recuse herself – and pointed to the 2016 decision from Michigan Supreme Court Judge Joan Larsen to recuse herself from a recount case that year because Trump had placed her on his Supreme Court short list. Larsen made her decision “once it was presented to her in the context of an actual case where she had to weigh her obligations,” Barrett said. “If presented to me I would, like Judge Larson, apply that statute.”

Asked again about recusal by Sen. Chris Coons, D-Del., Barrett defended her independence. “I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people,” she said.

Under questioning from Sen. Dianne Feinstein, D-Calif., Barrett declined to say whether the president has the authority to delay the general election. “If that question ever came before me, I would need to hear arguments from the litigants and read briefs and consult with my law clerks, and talk to my colleagues and go through the opinion writing process,” she said. “If I give off-the-cuff answers, then I would be basically a legal pundit. I don’t think we want judges to be legal pundits.”

Barrett was also questioned on voter suppression by Senator Amy Klobuchar, and declined to say whether she believed voter intimidation at polling locations is illegal under federal law. “I can’t apply the law to a hypothetical set of facts,” she said. “I can only decide cases as they come to me litigated by parties on the full record after fully engaging precedent, talking to colleagues, writing opinions. I can’t answer questions like that.”

Barrett, who confidently answered questions from senators for hours without any prepared notes in front of her, seemed to acknowledge a misstep Tuesday when she apologized for using the term “sexual preference,” a phrase recently rejected by the LGBTQ community and advocates who say it suggests that gender identity or sexual orientation is a choice. “In saying that I couldn’t opine on whether that was rightly decided or not I was not indicating disagreement with it,” she said of Obergefell v. Hodges, the landmark 2015 case recognizing same-sex marriage, in a clarification of her comments prompted by Sen. Joni Ernst, R-Iowa. “I certainly didn’t mean, and would never mean to use a term that would cause any offense in the LGBTQ community. If I did, I greatly apologize for that” (ABC News).

ARTICLE: CARSON CHOATE, POLITICS EDITOR

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