“I have a view whether I love or hate it,” Supreme Court nominee Amy Coney Barrett said on Tuesday when asked about Roe v. Wade by Senate Judiciary Committee Ranking Member Dianne Feinstein. “One reason why it may be comforting to you to have an answer is also why I can’t pre-commit to approaching a case in any particular way.”
That answer was emblematic of Barrett’s day as she repeatedly emphasized that she would not commit to pre-judging any case a certain way while Democrats pressed her to do just that.
“I do want to be forthright and answer every question so far as I can,” Barrett said, also to Feinstein, D-Calif., citing Justice Elena Kagan’s confirmation hearing. “She said that she was not going to grade precedent or give it a thumbs up or thumbs down.”
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“I haven’t written about severability that I know of at all,” Barrett said when asked to weigh in on that element of an upcoming challenge to the Affordable Care Act (ACA). She added that because the case is on the Supreme Court’s docket “the cannons of judicial conduct would prevent me from expressing a view.”
Sen. Patrick Leahy, D-Vt., pushed Barrett to say that she would recuse herself from any presidential-election related case. Barrett refused to commit to doing that as well, citing late Justice Ruth Bader Ginsburg’s descriptions of when a justice should recuse herself.
“Not only reading the [recusal] statute, looking at the precedent, consulting counsel if necessary,” Barrett said of the process of considering recusal. “While it is always the decision of the individual justice, it always happens after consultation with the full court. So I can’t offer an opinion on recusal without short-circuiting that entire process.”
The nominee also emphasized that she has “made no commitment to anyone… about how I would decide any case.”
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Barrett was asked about gay marriage, specifically on whether she agreed with late Justice Antonin Scalia that the U.S. Constitution does not fundamentally give gay people a right to marry. The answer from Barrett was the same.
“If I were confirmed you would be getting Justice Barrett, not Justice Scalia,” she said, “but I’m not going to express a view … for the same reasons that I’ve been giving.”
She then quoted Ginsburg’s philosophy on judicial hearings: “No hints, no previews, no forecasts.”
Sen. Ted Cruz, R-Texas, said that even if Roe v. Wade were overturned with Barrett on the court in almost all cases there would still be access to abortion.
“There are a great many jurisdictions … who even if Roe v. Wade were no longer the law of the land,” would continue to allow abortion. Cruz then criticized the kinds of Democrats he said Democrats would like that would allegedly “strike down every single reasonable restriction.”
Cruz also slammed the left-leaning justices currently on the Supreme Court on stances they have taken on issues including free speech, the Second Amendment and Religious Liberty. He repeatedly quoted the title of his recent book, saying that the Supreme Court is “one vote away,” from a litany of outcomes he said would trample Americans’ liberty.
“You won’t hear any of that from the Senate Democrats on this committee,” Cruz said. “That’s why their base is so angry at your nomination, Judge Barrett, because they don’t believe you’re going to join the racial efforts to erase those fundamental rights from the Bill of Rights.”
Sen. Sheldon Whitehouse, D-R.I., meanwhile, lamented the conservative interest groups who have supported President Trump’s judicial nominees that he said “are outside forces here pulling the strings” and the “political ram-job that we have already complained of, driving this process through at breakneck speed in the middle of a pandemic.”
Between long speeches from Cruz and Whitehouse, Barrett went nearly an hour without speaking.
The concerns by Democrats, especially about the Affordable Care Act (ACA) and Roe v. Wade, reflect the fact that Barrett if confirmed would represent a significant change in the ideological balance of the Supreme Court. If confirmed she is set to replace Ginsburg, who was the face of the liberal bloc of the Supreme Court. The Supreme Court would have six Republican-appointed justices and three Democrat-appointed justices.
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“On something that is really a major cause with major effect on half of the population of this country, it’s distressing not to get a straight answer,” Feinstein said of Barrett’s refusal to commit to an outcome on Roe v. Wade.
But Republicans defended Barrett, saying that their colleagues’ questions were improper.
“You don’t run for election. Right. You don’t run on a platform. You don’t say, ‘If I’m confirmed. I’m going to do this or that, you don’t do that,” Sen. John Cornyn, R-Texas, lamented.
“It’s the ACA vs. ACB I guess,” he said.
Under questioning from Sen. Chuck Grassley, R-Iowa, Barrett added that she was not asked to make any commitments by President Trump and would not make any commitment to the Senate Judiciary Committee. Grassley further asked whether Barrett was asked to overrule the ACA or if that was her agenda.
“Absolutely not, I was never asked. And if I had have been, that would have been a short conversation,” Barrett shot back.
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Barrett also laid out how she tries to keep herself unbiased when writing an opinion.
“One practice I have, one check that I put on myself, to make sure that I’m not biased is that when I write an opinion I try to read it from the perspective of the losing party,” Barrett said. “So that any sympathy that I might feel for the particular result that I reach, I try to make the sympathy run the other way to see if it will still hold and also to see … would I still think it was a well-reasoned opinion.”
She added: “I think discipline is required but I take it very very seriously.”