But that exchange is hardly the only one from Barrett’s 2017 confirmation hearing that could be at issue this week — nor is it the only interesting one from that hearing.
Below are some we’ve picked out upon a review of that hearing.
Barrett’s views on Supreme Court precedent and Roe v. Wade
Democrats at the hearing sought to press Barrett on the role Supreme Court precedent would play in her decisions — particularly on the landmark abortion case Roe v. Wade. She repeatedly returned to the idea that it was binding for judges on the kinds of lower courts to which she was being nominated at the time.
But implicit in her arguments were that such things might be reviewable by the court she’s now nominated to, the Supreme Court.
Sen. Mazie Hirono (D-Hawaii) asked her about a paper Barrett wrote as a student in which she cited legal scholars who did not list Roe v. Wade as a “super-precedent,” but Barrett didn’t necessarily express agreement:
BARRETT: According to the definition of “super-precedent” employed by those scholars, yes. If you use a different definition of super-precedent — for example, a precedent that’s more than 40 years old and that has survived multiple challenges — then I would include Roe on that list. It wasn’t the definition …HIRONO: You would include — did you say you would include Roe on that list of super-precedents?BARRETT: If super-precedent were defined differently. ‘Super-precedent’ is used differently in different contexts. And in the particular context in which I was writing, the particular definition that was used, it did not satisfy that definition.
Under questioning from Feinstein, Barrett reiterated that such precedents would be binding upon on the position to which she was nominated.
“One thing I would observe is that, for a Court of Appeals, all Supreme Court precedent is super-precedent,” Barrett said. “So as I had said to Chairman [Charles] Grassley, as a Court of Appeals judge, if I were confirmed, I would follow all Supreme Court precedent without fail.”
She added: “It’s more than 40 years old, and it’s clearly binding on all Courts of Appeals. And so it’s not open to me or up to me, and I would have no interest in as a Court of Appeals judge challenging that precedent. It would bind.”
She added at another point: “I’m being considered for a position on a Court of Appeals, and there would be no opportunity to be a no vote on Roe. And as I said to the committee, I would faithfully apply all Supreme Court precedent.”
This may not be terribly surprising, in that Barrett was talking about the position to which she was being nominated. Nor would you expect a nominee to say that they would overturn a specific case, even if they were nominated to the Supreme Court. But the repeated delineation between what an appeals court judge could do and what a justice could potentially do was notable. And you can bet she will be asked about it come mid-October.
GOP questions about the role of her faith
While Democrats’ pressure on Barrett to explain the role of her Catholic faith in her jurisprudence has gotten all the attention, they weren’t the only ones to press her on the issue — or to press her period. Nor were they the only ones to apparently find her answers less than specific.
At one point, Sen. Ted Cruz (R-Tex.) asked Barrett about the role of her Catholic faith in deciding death penalty cases, asking her whether she would able to decide such cases:
CRUZ: I’ve read some of what you’ve written on Catholic judges in capital cases, and in particular, as I understand it, you argued that Catholic judges are morally precluded from enforcing the death penalty.BARRETT: A little bit narrower than that, just that ...CRUZ: Okay, I was going to ask you to just explain your views on that, because that obviously is of relevance to the job for which you’ve not been nominated.BARRETT: Yes, Senator Cruz, that was an article that I wrote 20 years ago as a third-year law student with a professor, and it addressed a very narrow situation, a situation in which a trial judge, who was a conscientious objector to the death penalty, was asked to impose or was required by the law to impose an order of execution. And we concluded in that article that recusal would be the judge’s best course and the judge should recuse from that case. ... We did not draw any conclusions about conscientious objection in the appellate role.
Grassley also asked Barrett about the issue:
GRASSLEY: In this article, you seem to suggest that Catholic judges are, quote, “morally precluded from enforcing the death penalty,” end quote. However, you also wrote that, quote, “Judges cannot and should not try to align our legal system with the church’s moral teachings whenever the two diverge.”First question. You've had a couple decades of experience since you wrote this to consider this issue further. Will you elaborate on these statements and discuss how you view the issue of faith versus fulfilling the responsibilities as a judge today? When is it proper for a judge to put their religious views above applying the law?BARRETT: Thank you, Chairman Grassley. Let me start with your very last question and say, never. It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else on the law....I continue to stand and vehemently believe the core proposition of that article, which is that if there is ever a conflict between a judge’s personal conviction and that judge’s duty under the rule of law, that it is never, ever permissible for that judge to follow their personal convictions in the decision of the case rather than what the law requires. That article emphasized that point repeatedly. And I adhere to that today.
While these questions may have been teed up for Barrett to combat some of the Democrats’ arguments against her, Sen. John Neely Kennedy’s (R-La.) line of questioning was a little tougher — as it sometimes has been between Kennedy and some of Trump’s nominees.
KENNEDY: Let me ask you both a question then: Do you believe there are unenumerated rights in the United States Constitution?BARRETT: Senator, the Supreme Court has long held that there are unenumerated rights in the Constitution.KENNEDY: I know that. I'm asking you what you believe.BARRETT: Well, Senator, I feel compelled — I do welcome your hard questions. I’m glad. You know, I think that’s part of this process. I do think, though, that the line that other nominees have heeded in this case is a prudent one, not because I don’t want to answer your questions or be cooperative — I want to cooperate as fully as I can — but I think if I express a personal view on any of these matters, it might give the misimpression that my personal view is what would drive the decision of a case. It would not be.
Kennedy then pressed Barrett specifically on the Supreme Court’s 1965 case Griswold v. Connecticut, which in its establishment of a right to privacy on reproductive rights served as a precursor to Roe v. Wade.
In this exchange, Barrett offered a somewhat humorous response to Kennedy’s premise;
KENNEDY: Do you think there’s a right to privacy in the Constitution? I mean, when Griswold came down and you read it, what did you think? Did you say, “This is a well-reasoned opinion, and I agree with it?” Of course you said you’re going to follow it. We all follow the law. If you don’t follow the law, you go to jail, okay? I’ll stipulate that, too. But what did you think about the opinion?BARRETT: I wasn't alive when Griswold came down.KENNEDY: Well, what about when you first read it?BARRETT: Well, gosh, Senator, I think, again, whatever I might have thought about it — I first read it when I was a law student. But whatever I would have thought about it then or whatever I would think about it today wouldn’t matter. I would put that aside in the application of that.
Her affiliation with an anti-LGBT-rights group
A group you may soon learn about upon Barrett’s Supreme Court confirmation hearings is the Alliance Defending Freedom (ADF).
Conservatives have long argued the SPLC’s classifications are overly broad and partisan, but Barrett seemed to distance herself somewhat from the decision to speak with the group.
“I actually wasn’t aware until I received the honorarium and saw the ADF on the check, or maybe when I saw an email and saw the signature line,” Barrett said. “But, yes, ADF is the organization that sponsors the Blackstone.”
Barrett said she was familiar with people who had taken part in the Blackstone program before and this gave her confidence in her decision to speak with the group. But when pressed by Franken, she said she hadn’t fully researched ADF in advance.
“Senator, I’m invited to give a lot of talks as a law professor, and it is not — I don’t know what all of ADF’s policy positions are,” Barrett said. “And it has never been my practice to investigate all of the policy positions of a group that invites me to speak.”
As The Post’s Emma Brown and Jon Swaine reported this week:
Barrett was a paid speaker five times, starting in 2011, at the Blackstone Legal Fellowship, a summer program established to inspire a “distinctly Christian worldview in every area of law,” tax filings show. It was founded to show students “how God can use them as judges, law professors and practicing attorneys to help keep the door open for the spread of the Gospel in America.”The Blackstone program is run by Alliance Defending Freedom, a legal advocacy group whose founding leader has questioned the “so-called separation of church and state” as it is often understood. In the years Barrett spoke there, the fellowship’s suggested reading list included a book co-written by the same leader that lamented how Christians for too long had been “AWOL from the courthouse.”...In several of the years she spoke, the Blackstone website bore the ADF logo and identified ADF as the program’s sponsor, according to archived versions. In 2015, the website was apparently redesigned; the ADF logo no longer appeared but the site clearly stated that the fellowship “is a program of Alliance Defending Freedom, an alliance-building legal ministry that advocates for the right of people to freely live out their faith.”...A suggested reading list for the fellowship, published on Blackstone’s site from 2010 to 2015, included “The Homosexual Agenda” by senior ADF staffers Alan Sears and Craig Osten. The authors wrote that same-sex relationships led to “despair, disease and early death.”“For many years, the church and Christians were essentially AWOL from the courthouse while dozens of legal cases were litigated, setting precedents the homosexual activists rely on today,” Sears and Osten wrote, according to a copy of the book uploaded to the Internet Archive. “We can no longer ignore the legal realm.”
Another judge who was on Trump’s list of potential Supreme Court nominees, Allison Jones Rushing, was more closely affiliated with the group, as The Washington Post reported last year. Democrats have indicated they will gear their opposition more toward how Barrett might decide cases on Obamacare, but LGBT issues and abortion rights will be something the party’s base will be pushing hard.