He was echoing the earlier praise of Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.), who said, “This hearing, to me, is an opportunity to not punch through a glass ceiling, but a reinforced concrete barrier around conservative women.” He called Barrett “unashamedly pro-life,” saying she “embraces her faith without apology.”
“You’re going to shatter that barrier,” Graham added. “I have never been more proud of a nominee than I am of you.”
The committee will hear Thursday from opponents and supporters of Barrett, 48, a law professor and judge on the U.S. Court of Appeals for the 7th Circuit chosen by President Trump to fill the seat previously held by Justice Ruth Bader Ginsburg, who died last month. Barrett is on a fast track for Senate confirmation before Election Day.
Frustrated Democrats, who had been warned by Hawley and others that “attacks” on Barrett’s devotion would be called out as religious bigotry, said Barrett had done nothing to alleviate their fears that she would undermine the Supreme Court’s precedents on abortion rights, birth control and LGBTQ rights, such as the ability to marry.
“I’m stunned,” Sen. Richard Blumenthal (D-Conn.) said after Barrett said it would be improper for her to endorse the court’s 1965 holding in Griswold v. Connecticut, which involved the use of contraceptives by married couples and speaks to privacy concerns that underpin the right to abortion.
Blumenthal noted that several members of the current Supreme Court did not hesitate to endorse Griswold at their confirmation hearings, including Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr., all appointed by Republican presidents.
Similarly, Barrett would not comment on the court’s 2003 ruling in Lawrence v. Texas that struck laws criminalizing homosexual conduct or the court’s 2015 ruling that said same-sex couples could not be denied the right to marry.
“I am surprised, and I think a lot of Americans will be scared by the idea that people who want to simply marry or have a relationship with the person they love could find it criminalized, could find marriage equality cut back,” Blumenthal said, adding it would “not be an America I’d like to live in.”
“Well, senator, to suggest that that’s the kind of America I want to create isn’t based in any facts in my record,” Barrett said, retaining the even-keeled calm she has projected during hours of questioning over two days.
Democrats also sought to tie Barrett to Trump, asking her to appraise his controversial statements and tweets, not the least of which has said she is needed on the court should there be litigation arising from next month’s election.
There is an “orange cloud over your nomination,” said Sen. Richard J. Durbin (D-Ill.) in a dig at the president, whose complexion has long been a subject of conjecture.
Barrett parried inquiries on Trump’s claims of presidential power, his stance on climate change, his attempts to get the Supreme Court to strike the Affordable Care Act and the administration’s immigration policies.
She even deferred when asked about the Supreme Court’s power related to the president.
She agreed several times that “no one is above the law,” but she warned that the Supreme Court has no real recourse to ensure that people, including the president, obeyed its orders.
“Courts have neither force nor will — in other words, we can’t do anything to enforce our own judgments,” she said. “As a matter of law, the Supreme Court may have the final word. The Supreme Court lacks control about what happens after that. . . . It relies on the other branches to react to its judgments accordingly.”
Sen. Patrick J. Leahy (D-Vt.) asked Barrett whether a president could refuse to comply with a court order. “The Supreme Court can’t control what the president obeys,” she replied.
When Leahy then asked whether the president could pardon himself for a crime, Barrett was circumspect.
“So far as I know, that question has never been litigated,” she said. “That question may or may not arise, but it’s one that calls for legal analysis about what the scope of the pardon power is.”
Democrats continued to press on whether Trump wanted her on the court in time to hear a case next month that presents a third challenge to the Affordable Care Act, also known as Obamacare.
“I have no animus to or agenda for the Affordable Care Act,” she insisted under questioning from Sen. Amy Klobuchar (D-Minn.), who was citing the judge’s past comments and writings on the ACA.
Like many panel Democrats before her, Klobuchar at one point raised Barrett’s 2017 law review article criticizing Roberts’s opinion upholding the health-care law, asking whether she had been aware that Trump wanted to overturn the ACA when she wrote it.
This time, Barrett seemed to lose her patience.
“You’re suggesting this was like an open letter to President Trump,” Barrett protested. “It was not.”
Republicans came to her defense.
“They’re framing you as a real threat to health-care coverage and especially protections for preexisting conditions,” Sen. Charles E. Grassley (R-Iowa) told Barrett. “This is all a charade.”
Continuing on the health-care front, Barrett said judges usually side in favor of “severability” — a legal doctrine that has become critical in determining the ACA’s fate.
The 2010 health-care law is being challenged at the Supreme Court by Republican attorneys general who say that because its individual mandate is unconstitutional, the entire law — with its Medicaid expansions and guaranteed coverage for people with preexisting conditions — must fall. But in her testimony Wednesday, Barrett said judges weigh whether an unconstitutional provision of a law can be “severed” from the rest of a law and that they generally try to favor keeping a law in place.
“The presumption is always in favor of severability,” Barrett said.
Barrett several times told Democrats that her refusal to endorse certain decisions of the court did not mean they were endangered and said such questioners were pushing her to violate judicial canons of ethics and impartiality.
She called it “shockingly unlikely” that any state or federal lawmakers would reinstate bans on birth control and said the Supreme Court decision legalizing contraception is not “in danger of going anywhere.”
Again under questioning from Democrats, she said her position on the causes of climate change is beside the point.
“I do not think my views on global warming or climate change are relevant to the job I would do as a judge, nor do I feel like I have views that are informed enough, and I haven’t studied scientific data,” she said.
Later, under questioning from Sen. Kamala D. Harris (D-Calif.), the Democratic vice-presidential nominee, Barrett declined to say whether climate change was real and a threat to human health, calling it a “very contentious matter.”
“I will not express a view on a matter of public policy, especially one that is politically controversial, because that’s inconsistent with the judicial role, as I have explained,” she said.
A climate change case is already on the Supreme Court’s docket. The high court will hear a case involving several oil companies, including Royal Dutch Shell, being sued by the city of Baltimore, which is seeking to hold them financially responsible for their greenhouse gas contributions. But the issue is about whether it and similar cases should be heard in federal or state court.
In one of the only discussions of immigration to arise during the confirmation hearings, Barrett declined to say whether she thought it was wrong to separate migrant children from their parents to deter immigration to the United States, as the Trump administration had done early on, hopeful the policy would stem the flow of Central American migrants crossing into the United States illegally.
“That’s a matter of hot political debate in which I can’t express a view or be drawn into as a judge,” Barrett said in response to a question from Sen. Cory Booker (D-N.J.).
Booker said he respected her position but asked again: “Do you think it’s wrong to separate a child from their parent, not for the safety of the child or parent but to send a message? As a human being, do you believe that that’s wrong?”
Barrett told Booker she felt as if he was trying to engage her on the Trump administration’s border policy, under which immigration officials applied a “zero tolerance” approach to undocumented immigration and separated families crossing the border through Mexico.
“I can’t express a view on that,” Barrett said. “I’m not expressing assent or dissent with the morality of that position. I just can’t be drawn into a debate about the administration’s immigration policy.”
Booker said the issue involved “basic questions of human rights, human decency and human dignity.”
“I’m sorry that we can’t have a simple affirmation of what I think most Americans would agree on,” he said.
Barrett did endorse some Supreme Court precedents.
She said Brown v. Board of Education, which outlawed the “separate but equal” doctrine, was correctly decided in 1954, as was the later Loving v. Virginia, which legalized interracial marriage.
That is when Blumenthal asked about the same-sex marriage decision, Obergefell v. Hodges.
“Again, I’ve said throughout the hearing, I can’t grade precedent,” Barrett said. “I can’t give a yes or a no, and my declining to give an answer doesn’t suggest disagreement or an agreement.”
Sen. Mike Lee (R-Utah) asked questions to rebut suggestions from Democrats that Barrett’s personal opposition to abortion would influence her decisions if she is confirmed to the Supreme Court. Lee highlighted Barrett’s role as an appeals court judge in upholding a Chicago law that established a buffer area around abortion clinics.
The Chicago law, upheld by a conservative three-judge panel of the U.S. Court of Appeals for the 7th Circuit, prohibits protesters from coming within eight feet of individuals to demonstrate or hand out leaflets outside clinics and other medical facilities.
“You followed that precedent, and you did so as a jurist rather than following whatever personal predilection might have otherwise guided you or any other member of the panel,” Lee said.
Barrett said the panel was bound by previous Supreme Court decisions. But the opinion she joined also critiqued the high court’s prior opinion, saying it was “incompatible with current First Amendment doctrine.”
While it is almost assured Barrett will be confirmed, barring a last-minute obstacle, it is also likely it will be by a razor-thin margin. Democrats contend the winner of the election should choose Ginsburg’s successor.
“It’s not about you. It’s about us,” Graham told Barrett at the conclusion of the hearing. “Somehow we have lost our way.”
Karoun Demirjian, Dino Grandoni, Derek Hawkins and Tom Jackman contributed to this report.