Judge Amy Coney Barrett told the Senate Judiciary Committee on Tuesday that she has made “no commitment” to the White House or senators on how she would rule on major cases on the Affordable Care Act, abortion and election disputes.
“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.
Barrett was pressed on the ACA — the court will consider the Obama-era health care law’s fate next month — as well as on abortion rights, gun control and same-sex marriage. The panel’s chairman, Sen. Lindsey O. Graham (R-S.C.), has signaled that the committee will probably vote Oct. 22 on her nomination.
Here are some significant developments:
Barrett said Roe v. Wade, the 1973 ruling that legalized abortion nationwide, did not belong to the category of judicial rulings known as “super-precedents” — decisions considered so fundamental that they cannot be overturned. “Roe is not a super-precedent,” Barrett said, adding: “But that does not mean it should be overruled.”
Democrats cast Barrett as a conservative ideologue whose confirmation to the high court would threaten the ACA. Republicans tried to deflect the Democrats’ focus on health care and defended Barrett from the assumption that she would be an automatic vote to dismantle the landmark law. Under questioning, Barrett said, “I’m not on a mission to destroy the Affordable Care Act.”
Barrett declined to say whether presidents should commit to a peaceful transfer of power, saying she would not get drawn into political controversies. She did note the country’s history of “peaceful transfers of power.” “I think that is part of the genius of our Constitution and the good faith and goodwill of the American people, that we haven’t had a situation that has arisen,” she said.
Sen. Thom Tillis (R-N.C.), who had contracted the coronavirus, released a letter Tuesday from his physician saying he has been cleared to participate in person at the confirmation hearings. The letter says the senator has met the criteria set by the Centers for Disease Control and Prevention, but it makes no mention of whether Tillis has tested negative for the virus. Tillis spoke at the hearing without a mask.
A slight majority of American voters oppose holding confirmation hearings now, according to a Washington Post-ABC News poll, although opposition has eased since President Trump announced his choice to replace Justice Ruth Bader Ginsburg, who died last month.
Barrett says she has no firm views on climate change
By Rachael Bade
Barrett, under questioning from a GOP senator, said she had no firm views on climate change, an issue that has yet to be discussed at the confirmation hearings even though environmental issues are likely to come before the court.
In a bid to cast doubt on Democrats’ concerns about Barrett’s conservative personal beliefs influencing judicial impartiality, Sen. John Neely Kennedy (R-La.), posed several questions for Barrett to probe whether a “blank slate” judge — one without personal views — is a good idea.
“My colleagues think you’re only qualified if you’re dumb, if you have a blank slate,” he said. “If you’ve never thought about the world. Have you thought about the world?”
Barrett said she had.
“Have you thought about social problems?”
Barrett again answered in the affirmative.
“How about climate change?” Kennedy asked.
“I’ve read about climate change,” Barrett said. “I’m certainly not a scientist. I mean, I’ve read things on climate change — I would not say I have firm views on it.”
Kennedy did not follow up on the climate matter.
Dems’ VP nominee and Trump’s Supreme Court pick talk health care, integrity, in first Q&A
By Karoun Demirjian
The much-anticipated first face-off between Democratic vice presidential nominee Kamala D. Harris and Trump’s pick to serve on the Supreme Court proceeded smoothly late Tuesday, despite Election Day looming just three weeks away.
Harris, known as one of the fiercest questioner on the Democrats’ side of the Judiciary Committee, has in the past, felled several Trump appointees -- including Attorney General William P. Barr -- with lines of questioning. But she refrained from taking an aggressive tone with Barrett, sticking mainly to questions about Barrett’s views on the Affordable Care Act, which is scheduled to come before the Supreme Court once again next month.
Barrett refused to divulge her views, pointing out that she had spent the entire day declining to address specific questions about past or upcoming cases, unless she had personally ruled or commented on them.
She also stressed that she had never been asked, nor offered, the president and his advisers any “commitment” about how she might rule in a future case. She also said she didn’t recall seeing Trump’s statements that he planned to nominate a justices who would repeal the health-care law prior to her nomination.
“I hope the committee would trust in my integrity,” Barrett said to Harris.
Other Democratic senators on the panel had questioned Barrett, challenging the nominee over why she would not answer questions about certain legal standards, and why she had not alerted the committee to a 2013 statement she signed disparaging the landmark abortion decision Roe v. Wade until a few days ago.
Barrett frequently cited the so-called “Ginsburg rule,” that dictates a judge cannot hint or preview their position on legal issues without undermining their impartiality and the judicial process.
Harris was the only senator to point out that the rule’s namesake, the late Justice Ruth Bader Ginsburg, made an exception to that standard: she did express her support for reproductive rights.
Before her time was up, Harris asked Barrett if she thought about the people affected by her legal opinions, such as those dependent on the Affordable Care Act for their health care.
“Every case has consequences on people’s lives, so of course I do, in every case,” Barrett said. “It’s part of the judicial decision-making process.”
Due to the pandemic, Harris participated in the hearing remotely.
Barrett discusses moot court on ACA case
By Seung Min Kim
Barrett confirmed Tuesday that she participated in a mock court exercise mimicking California v. Texas — the Affordable Care Act case that is before the Supreme Court next month.
She disclosed the moot court, held Sept. 11 at William and Mary Law School, on her Senate questionnaire, but offered no details about it in the paperwork. The moot court was meant to be more of an educational exercise showing observers how a court works, and Barrett stressed to the committee that how she ruled in the exercise was not necessarily reflective of how she would rule on the Supreme Court.
A majority of the judges participating in the court exercise said the individual mandate in the health care law — which was zeroed out by the GOP tax law in 2017 — was unconstitutional, but could be severed from the rest of the Affordable Care Act, Barrett said. A minority of the participants said the litigants had no standing to sue.
Barrett said she voted to say the mandate was unconstitutional, but severable.
“It was made very clear … in the deliberation room and then outside that it was not designed to reflect the actual views of any of the participants,” Barrett said under questioning from Sen. Mike Crapo (R-Idaho), who asked her about the moot court.
Barrett added: “I wasn’t trying to signal anything because it was a mock.”
Barrett apologizes for using ‘sexual preference’ about LGBTQ community
By Derek Hawkins
Barrett apologized for using the phrase “sexual preference” in reference to the LGBTQ community, following criticism from Sen. Mazie Hirono (D-Hawaii), who noted that the term was widely regarded as offensive.
“I certainly didn’t mean and would never mean to use a term that would cause any offense in the LGBT community,” Barrett said. “So if I did, I greatly apologize for that.”
The phrase is often deployed by anti-LGBTQ activists seeking to characterize sexual orientation as a choice rather than something people are born with.
The issue first arose in the morning when Sen. Dianne Feinstein (D-Calif.) asked the nominee about her views on LGBTQ discrimination.
“I have no agenda, and I want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference,” Barrett said.
Later, Hirono scolded her for her answer, saying she didn’t believe it was an “accident” that Barrett had used the phrase.
“If it is your view that sexual orientation is merely a preference, then the LGBTQ community should be rightly concerned about whether you would uphold their constitutional right to marry,” Hirono said.
The senator ended her questioning without allowing Barrett to respond.
Immediately after, Sen. Joni Ernst (R-Iowa) asked whether there was anything Barrett needed more time to answer. Barrett then offered her apology.
While being questioned by Sen. Cory Booker (D-N.J.), who also asked about her use of the term, Barrett reiterated that she rejected “any kind of discrimination on any sort of basis.”
“I honestly did not mean any offense,” she said.
Democrats are concerned that Barrett’s confirmation could threaten Supreme Court precedent guaranteeing same-sex couples the right to marry.
Barrett acknowledges ‘implicit bias’ in criminal justice system, denounces white supremacy
By Ann E. Marimow
In a wide-ranging exchange with Sen. Cory Booker (D-N.J.), Barrett denounced white supremacy, acknowledged bias in the criminal justice system and praised the nation’s history of peaceful transfers of power after presidential elections.
Booker asked Barrett a series of questions designed to highlight Democrats’ criticism of President Trump, who has refused to clearly denounce white supremacy and declined to say that he would accept the results of next month’s election.
Barrett said she would not get drawn into political controversies, but noted the country’s history of “peaceful transfers of power” and that “disappointed voters have accepted the new leaders that come into office and that is not true in every country.”
“I think that is part of the genius of our Constitution and the good faith and goodwill of the American people that we haven’t had a situation that has arisen,” she said.
Booker also pressed Barrett about studies showing that Black defendants in the United States are more likely to be charged with crimes that carry lengthy mandatory prison terms. Barrett said she was not familiar with those studies, but after several questions, said that “I think in our large criminal justice system it would be inconceivable that there wasn’t some implicit bias.”
Tillis returns to the Senate after coronavirus quarantine, speaks without a mask
By Ann E. Marimow
Thom Tillis (R-N.C.) returned to the Senate for Barrett’s confirmation hearing after having tested positive for the coronavirus earlier this month. Tillis, who spoke without a mask, presented the committee with a letter from his doctor clearing the senator to end his self-quarantine period.
Tillis, who is seeking reelection next month, urged all lawmakers and aides to return to the “essential business” of the Senate as he had.
At the hearing, Tillis defended Barrett, pushing back against criticism from Democrats that she had not been forthcoming with the committee about her record.
Barrett insists she did not intentionally withhold 2013 newspaper ad that she endorsed decrying Roe v. Wade
By Karoun Demirjian
Barrett repeatedly insisted she had not intentionally withheld from the Judiciary Committee a 2013 newspaper ad she co-signed criticizing Roe v. Wade and calling “for the unborn to be protected in law.”
Sen. Richard Blumenthal (D-Conn.) pressed Barrett on why she did not disclose the ad until last week, when she alerted the committee to its existence in a letter. The ad, which ran in a University of Notre Dame newspaper and was sponsored by a faculty organization to which Barrett belonged called University Faculty for Life, stated that “in the 40 years since the Supreme Court’s Roe v. Wade decision, over 55 million unborn children have been killed by abortions.” It also stated that the faculty and staff who signed “reaffirm our full support for our university’s commitment to the right to life, we renew our call for the unborn to be protected in law.”
Barrett said she had initially forgotten about the ad, pointing out that “30 years of material is a lot to remember.” She also dismissed the idea that the statement could serve as a manifesto of her position on Roe v. Wade, despite the disparaging way in which the landmark abortion case is described.
“It’s really no more than the expression of a pro-life view,” she said.
Blumenthal also tried to get Barrett to say whether she thought it would be constitutional to criminalize the practice of in vitro fertilization, or IVF. Barrett declined to answer.
Barrett says she will not be ‘used as a pawn’ to decide the presidential election
By Ann E. Marimow
Barrett refused to commit to recuse herself from cases involving disputes over next month’s presidential election, but she told senators she will not allow herself “to be used as a pawn to decide the election for the American people.”
“I will consider all factors that are relevant to that question that requires recusal when there’s an appearance of bias,” she told Sen. Christopher A. Coons (D-Del.), who like other Senate Democrats said Barrett should not participate in cases involving the election of the president who nominated her.
“I can’t commit to you right now, but I do assure you of my integrity, and I do assure you that I would take that question very seriously.”
As a judge on the U.S. Court of Appeals for the 7th Circuit for the past three years, Barrett has not directly decided cases involving election issues.
“I have never written anything that I thought anybody could reasonably say, ‘This is how she might resolve an election dispute,’ ” Barrett said.
Barrett: ‘I’m not on a mission to destroy the Affordable Care Act’
By Ann E. Marimow
Barrett defended her criticism of the Supreme Court’s decision upholding a key provision of the Affordable Care Act, while also asserting she has “no hostility” toward the measure.
“I’m not on a mission to destroy the Affordable Care Act,” Barrett said in response to questions from Sen. Christopher A. Coons (D-Del.).
One week after the presidential election, the Supreme Court will take up a new challenge to the health-care law that is supported by the Trump administration. Coons pressed Barrett about her 2017 critique of a previous court opinion on the ACA written by Chief Justice John G. Roberts Jr., and the senator suggested her writings were “fighting words.”
Barrett wrote in the article that Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Barrett testified that her book review was not an attack on Roberts and that the new challenge before the court raises distinct constitutional issues.
“For those to be fighting words, you’d have to assume my critique reflects a hostility to the act,” Barrett said, adding that she is not “looking for a way to take it down. I have no hostility to the ACA or any other law.”
Roe v. Wade is not ‘super precedent,’ Barrett says
By Karoun Demirjian
Trump’s Supreme Court nominee said Tuesday that Roe v. Wade, the case that legalized abortion nationwide, did not belong to the category of judicial rulings known as “super-precedents” — decisions considered so fundamental that they cannot be overturned.
“Roe is not a super-precedent,” Barrett said, adding: “But that does not mean it should be overruled.”
Barrett would not say how she would rule on Roe v. Wade if she were presented with a challenge to it.
Few judicial decisions are universally regarded as super-precedent. On Tuesday, Barrett cited only two: Marbury v. Madison, which established the Supreme Court’s ability to strike down unconstitutional laws, and Brown v. Board of Education, which abolished segregation and the practice of “separate but equal,” as decisions “that no one questions anymore.”
The question about Roe came from Sen. Amy Klobuchar (D-Minn.), who tried to press Barrett on where she stood on a number of principles that lie at the heart of several recent decisions and current high-stakes political disputes regarding the right to vote and ballot access. Barrett declined to answer all of them — even a question about whether voter intimidation is illegal.
Although Klobuchar pointed out that there have been laws against voter intimidation “on the books for decades,” Barrett called it a “hypothetical” question.
“It is not something that is appropriate for me to comment on,” she said, adding that she would limit her specific statements to cases upon which she had either ruled or previously publicly opined.
Barrett dodges Trump tweets
By Rachael Bade
Barrettt dodged questions from Sen. Amy Klobuchar about a series of Trump tweets suggesting his Supreme Court nominees would strike down the Affordable Care Act.
Hoisting up a poster board displaying one of Trump’s social media posts from June 2015, the Minnesota Democrat inquired whether Barrett was familiar with the missive: “If I win the presidency, my judicial appointments will do the right thing unlike Bush’s appointee John Roberts on ObamaCare.”
Trump, Klobuchar continued, also recently wrote that it would be a “big win” if the Supreme Court struck down President Barack Obama’s signature health-care law in a case set to be heard by the high court just days after the election.
“Do you think we should take the president at his word when he says his nominee will do the right thing and overturn the Affordable Care Act?” the senator asked, sticking to a Democratic strategy of framing the Supreme Court fight as a health coverage imperative.
“I can’t really speak to what the president has said on Twitter,” Barrett said. “He hasn’t said any of that to me. … No one has elicited from me any commitment in a case.”
Over the years, Republicans have frequently said they didn’t see the tweet or were unaware of what the president said when pressed on Trump’s comments.
Barrett sought to assure Klobuchar that she would not make such a promise, even if asked: “I am 100 percent committed to judicial independence from political pressure, so whatever people’s party platforms may be … the reason why judges have life tenure is to insulate them from those pressures … I am not pre-committed, nor would I pre-commit to decide a case in a particular way.”
Barrett declines to say whether intimidating voters is unconstitutional
By Donna Cassata
Sen. Amy Klobuchar (D-Minn.) questioned Barrett about voter intimidation as Trump has encouraged poll watchers, raising fears about potential confrontations as millions of Americans vote.
Barrett declined to answer whether voter intimidation is unconstitutional. “I can’t characterize the facts in a hypothetical situation,” she told Klobuchar.
Sen. Mike Lee asks few questions of Barrett, instead expounds on personal views
By Derek Hawkins
While some members of the Judiciary Committee came armed with detailed questions for Barrett, Sen. Mike Lee (R-Utah) used the bulk of his 30-minute time slot to expound on his personal views about law and government.
He lectured the room about the separation of powers and the debate over abortion in the United States. He invoked Alexander Hamilton and the Federalist Papers. He accused Democrats of “fearmongering” about health care.
All told, he directly addressed Barrett about a dozen times, sometimes asking her to validate points he had just made.
“I am one who doesn’t believe that there is anything worse about an activist judge than a passivist judge, meaning I think it’s every bit as bad to be a passivist,” Lee said. “Would you agree with me that both of those are equally instances of bad judging?”
Barrett responded: “They are both instances of, as you’ve posed them, of not following the law, not following the Constitution, or not correctly interpreting a statute."
Lee devoted roughly the last seven minutes of his time to the subject of court packing, explaining the definition of the term to Barret — a career jurist, attorney and law professor — and recounting historical attempts to increase the number of Supreme Court justices.
He defended the Trump administration against accusations by Democrats that Republicans had engaged in de facto court packing by installing conservative judges to the federal bench. And he argued that adding seats would “delegitimize” the high court.
He concluded without a final question for Barrett, telling her, “You, Judge Barrett, are someone in whom I have immense confidence."
Following Lee, Barrett got no questions from Sen. Sheldon Whitehouse (D-R.I.), who used his allotted time to inveigh against dark money and the influence of special-interest groups in politics. She said nothing during his remarks.
Sen. Ted Cruz (R-Tex.) also spent most of his time in lecture mode, asking a question about religious liberty before launching into a long monologue.
Sen. Whitehouse decries ‘dark money’ scheme to install conservative justices like Barrett
By Ann E. Marimow
Sen. Sheldon Whitehouse (D-R.I.) compared Barrett’s confirmation hearings to a “puppet show” with anonymous big donors pulling the strings — controlling the selection process, funding campaign ads for nominees and then paying for legal briefs filed on behalf of conservative causes.
Displaying a set of posters, Whitehouse illustrated how groups such as the Federalist Society have rapidly reshaped the federal courts by advising President Trump on conservative judicial nominees and then raising money to generate support for the president’s picks. He pointed to a Washington Post report on the influence of Leonard Leo, a Federalist Society executive.
“Something is not right around the court, and dark money has a lot to do with it,” said Whitehouse, who did not ask Barrett a question during his allotted time.
Whitehouse said the stakes are high because Trump has been explicit in his interest in appointing judges who will strike down the Affordable Care Act and overturn the landmark abortion rights decision in Roe v. Wade.
“Why don’t we take him at his word?” Whitehouse said of the president.
He also noted that the Susan B. Anthony Foundation, for instance, is running advertisements that say Barrett is set to give “our pro-life country the court that it deserves.”
The group promptly thanked Whitehouse in a tweet for sharing its #ConfirmAmy ad.