Judge Amy Coney Barrett’s confirmation to the Supreme Court appears very likely. Indeed, many of the Democratic arguments during this week’s hearings seem geared more toward the 2020 election than toward actually defeating her.
Given that, the name of the game for Barrett is not making mistakes. But at several points in her testimony, she has been quite cagey about things that might seem rather obvious.
There is plenty of precedent for nominees like Barrett declining to weigh in on unsettled issues that could logically come before the court, but Barrett has occasionally declined to address even matters on which you might expect someone like her to expound.
For instance, Barrett demurred Tuesday when Sen. Amy Klobuchar (D-Minn.) asked her whether voter intimidation was prohibited by federal law:
KLOBUCHAR: So as a result of [Trump’s] claims, people are trying to get poll-watchers, Special Forces people to go to the poll. Judge Barrett, under federal law, is it illegal to intimidate voters at the polls?BARRETT: Senator Klobuchar, I can’t characterize the facts in a hypothetical situation, and I can’t apply the law to a hypothetical set of facts. I can only decide cases as they come to me, litigated by parties on a full record after fully engaging precedent, talking to colleagues, writing an opinion, and so I can’t answer questions like that.
It certainly would be fair for Barrett to not weigh in on a hypothetical, but Klobuchar’s question wasn’t about that. Klobuchar might have been building toward that hypothetical — and pretty clearly was — but Barrett didn’t even seem to want to grant the basic premise upon which Klobuchar’s argument was built.
Klobuchar shot back: “I’ll make it easier: [18 U.S. Code § 594] outlaws anyone who intimidates, threatens, coerces or attempts to intimidate, threaten or coerce any other person for the purpose of interfering with the right of such other person to vote. This is a law that has been on the books for decades.”
Similarly, Barrett on Tuesday declined to weigh in on whether a president could unilaterally delay an election — again seeming to suggest the question was too hypothetical and about President Trump:
SEN. DIANNE FEINSTEIN (D-CALIF.): On July 30, 2020, President Trump made claims of voter fraud and suggested he wanted to delay the upcoming election. Does the Constitution give the president of the United States the authority to unilaterally delay a general election under any circumstances? Does federal law?BARRETT: Well, senator, 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. So you know, if I give off-the-cuff answers, then I would be basically a legal pundit, and I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind.
This one might be more understandable than the previous response about voter intimidation, in that it asks for an interpretation that may not be quite so legally explicit. But as The Washington Post’s Colby Itkowitz has reported, there is almost no doubt among legal scholars that delaying an election is the prerogative of Congress, and Barrett was a constitutional law professor before becoming a judge.
Barrett also at various points in her testimony suggested she was unfamiliar with Trump’s views on high-profile issues. For instance, this from Wednesday:
SEN. RICHARD BLUMENTHAL (D-CONN.): Do you agree with the president on his views of climate change?BARRETT: I don’t know that I have seen the president’s expression of his views on climate change.
Trump has been a well-acknowledged skeptic of man-made climate change dating back to his life before he was a politician.
Perhaps one of Barrett’s most puzzling answers on that front Wednesday, though, came in another exchange with Klobuchar. The day before, Barrett had told Democratic vice-presidential nominee Kamala D. Harris (D-Calif.) that she didn’t recall knowing, when Trump appointed her to a federal appeals court in 2017, that Trump had said he would nominate judges who would overturn the Affordable Care Act.
HARRIS: Prior to your nomination, were you aware of President Trump’s statements committing to nominate judges who will strike down the Affordable Care Act? And I’d appreciate a yes or no answer, please.BARRETT: Well, Senator Harris, I want to be very, very careful; I’m under oath. As I’m sitting here, I don’t recall seeing those statements. But if — let’s see, I don’t recall seeing or hearing those statements, but I don’t really know what context they were in. So I guess I can’t really definitively give you a yes or no answer. What I would like to say is, I don’t recall hearing about or seeing such statements.
Barrett contended to Klobuchar that her response referred to a Trump tweet Harris had displayed, from the day after her Supreme Court nomination was announced, that suggested the court should strike down the ACA.
“I took Senator Harris’s question yesterday to be referring to the specific tweet — maybe the one that you have behind you — about how he wanted to put a justice on the court to replace Obamacare,” Barrett said. “And I’m definitely aware of that tweet now.”
In fact, Harris’s question was broader than just the tweet and instead referred to Trump’s many comments. Indeed, Harris referred to Trump’s “statements” — plural — as did Barrett’s response.
Klobuchar continued to press Barrett on a January 2017 law journal article in which Barrett criticized Chief Justice John G. Roberts Jr.’s 2012 opinion upholding the ACA. Barrett had written that Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” Klobuchar inquired about whether Barrett had known about Trump’s desire to overturn the ACA not just this year, but when she wrote it.
Klobuchar’s angle was again pretty clear: She wanted to suggest that perhaps Barrett was seeking to curry favor with a recently elected president. (Trump later in 2017 nominated Barrett to a federal appeals court.)
Barrett sought to ward off the charge. But in the course of doing so, she obscured the timeline. Barrett noted that such law journal articles generally take months to publish, and that means she probably would have written it before Trump was actually elected:
Here’s their exchange:
KLOBUCHAR: Were you generally aware of the president’s statements when you wrote in an article in the University of Minnesota Law School Journal in 2017, the same year that you became a Seventh Circuit judge, that he “pushed the Affordable Care Act beyond its plausible meaning to save the statute” — that Justice Roberts had done that? Were you aware of that, of the president’s statements, when you wrote that article?BARRETT: So that article, Senator Harris told me yesterday, was published in January of 2017. And a review article takes several months to go into production. So I can’t remember specifically when the conference was. That article came out of a conference for Randy Barnett’s book. I can’t remember when it was, but I suspect it was before the election. It’s not like I wrote it in January 2017 —
But Klobuchar rightly noted that Trump’s view on this issue was clear long before he was actually elected. Indeed, Trump pushed for overturning the ACA as far back as 2011, and virtually anybody paying attention to the 2016 campaign would have known how Trump felt.
Klobuchar said Trump’s position had been clear dating back to early in his campaign in 2015, but Barrett again returned to the idea that her article was probably written before he was elected, saying she had “no idea” whether she knew Trump’s position when she wrote it:
KLOBUCHAR: But Trump has been saying this in 2015 and 2016, and that’s two years. It didn’t take you that long to write the article. So my question is, simply, were you aware of President Trump’s opposition to the Affordable Care Act during that time?BARRETT: Senator Klobuchar, I have no idea. And I suspect that if the article is published in January, that I wrote it sometime before the presidential election. And again, I want to stress I have no animus to or agenda for the Affordable Care Act. So to the extent you’re suggesting this was like an open letter to President Trump, it was not.
Again, the question wasn’t about whether Barrett knew this on Election Day 2016, but whether she was aware of it when she wrote the piece.
It’s plausible that Barrett didn’t know about a specific Trump tweet, and perhaps she misunderstood Harris’s broader question about whether she knew about Trump’s stance on wanting the Supreme Court to overturn the ACA before her Supreme Court nomination a month ago. (It wasn’t exactly a mystery, given the administration had literally filed suit to do just that.)
But not being “aware of President Trump’s opposition to the Affordable Care Act” when she wrote a law journal article published in early 2017? That strains credulity — even if you accept that judges may not pay as close attention to politics as the people reading and writing this piece.