All but powerless to keep Amy Coney Barrett off the Supreme Court, Senate Democrats used their second day of questioning to put her on the spot over statements by the person who chose her, President Donald Trump.
Democrats asked Barrett on Wednesday about Trump’ssuggestion that the Nov. 3 election be delayed and hisclaim that he has “an absolute right to pardon myself” should the need arise. The questions came a day after senators pressed her on potential legal challenges to the election and asked whether presidents should commit to a peaceful transfer of power, as Trump has declined to do.
During the final day she will appear at her confirmation hearings, Barrett continued to avoid answering direct questions about how she would vote in potential Supreme Court cases. She said she wasn’t calling for the court to be more aggressive in overturning its precedents. She repeated that she had no “hostility” toward the Affordable Care Act, which the court will consider overturning in a Nov. 10 argument.
“No matter what somebody’s policy preferences are about the ACA, I completely agree with you they shouldn’t be trying to undermine the policy that Congress enacted,” Barrett said in response to Senator Dick Durbin, a Democrat from Illinois. Durbin said Trump had placed a “cloud over your nomination” by declaring his intention to add to the Supreme Court a justice who would vote to overturn that law.
Tensions in the hearing room increased Wednesday, as Barrett’s previously calm demeanor became testy at points during the second round of questioning by members of the Senate Judiciary Committee. Senators also at times appeared agitated — Democrats over her avoidance of questions they regarded as having obvious answers and Republicans over their colleagues’ continuing attempts to press Barrett for responses.
“My core concern here is your confirmation might launch a new chapter of conservative judicial activism, unlike anything we’ve seen in decades,” Democratic Senator Chris Coons, of Delaware, told Barrett during a discussion about overturning court precedents. He added that “if that’s true, it could touch virtually every aspect of modern American life.”
In another exchange, Barrett frustrated Durbin by refusing to say whether the president has the unilateral right to delay an election, as Trump once hinted he might try to do. Durbin then asked whether the president could deny a person the right to vote based on race. Barrett declined to go further than citing Constitution’s equal protection clause and the 15th Amendment, which protects the right to vote against racial discrimination.
“Well, Senator, you’ve asked a couple different questions about what the president might be able to unilaterally do, and I think that I really can’t say anything more than I’m not going to answer hypotheticals,” Barrett said.
Durbin said that it “strains originalism if the clear wording of the Constitution establishes a right and you will not acknowledge it,” referring to Barrett’s approach of interpreting the Constitution according to the original meaning of its words. Barrett quickly replied that the rules of conduct for federal judges “don’t permit me to offer off-the-cuff reactions or any opinions outside the judicial decision-making process.”
Democratic Senator Amy Klobuchar, of Minnesota, intimated that Barrett took a stance against the ACA with an eye toward getting a judicial appointment from Trump. Klobuchar pressed Barrett to say she was aware of Trump’s opposition to the law when the then-professor wrote a 2017 law review article that criticized Chief Justice John Roberts’s opinion upholding the measure. Not long after it was published, Trump nominated Barrett to a federal appellate court and she was confirmed.
Barrett said she probably wrote the article before the 2016 presidential election. “To the extent you are suggesting that this was like an open letter to President Trump, it was not,” she said.
Democratic Senator Richard Blumenthal said he was “stunned” Barrett wouldn’t follow the example of previous nominees and say that the Supreme Court was correct in a 1965 ruling that married couples have a right to privacy that lets them use birth control.
Earlier, Barrett said it was extremely unlikely the Supreme Court would ever overturn the ruling, known as Griswold v. Connecticut. For that to happen, Congress or a state legislature would have to take the “shockingly unlikely” step of banning contraceptives, she said.
In the debate over high-court precedents with Coons, Barrett extracted his agreement that precedents should sometimes be revisited. She cited a 2003 Supreme Court ruling that overturned a 1986 decision and said the government can’t outlaw private homosexual activity.
Coons responded that he agreed that “in grievously wrong cases it is appropriate to reach back.” But he added that her embrace of Sclalia’s originalist approach will result in far more extensive changes in precedents.
Democrat Patrick Leahy of Vermont pressed Barrett to say whether the president has a right to pardon himself for a crime. He told her that “for 200 years, the Supreme Court has recognized the common law principle that nobody can be a judge in their own case.”
Barrett said she couldn’t answer, saying that “it would be opining on an open question when I haven’t gone through the judicial process to decide it.”
Senator Ted Cruz, a Texas Republican, said the line of inquiry by Democrats shows “that Judge Barrett is going to be confirmed by this committee and by the full Senate.”
“With two full days of questioning,” Cruz said, “we’ve seen that our Democratic colleagues have very few questions actually to raise about Judge Barrett’s qualifications. Very little of the time we’ve spent in here has concerned her record as a judge, her 20 years as a respected scholar. Instead most of this hearing has focused on political attacks directed at President Trump.”
Kicking off Wednesday’s session, committee Chairman Lindsey Graham said Barrett represents “the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology.” At the same time, he stressed that Trump’s third high-court pick has pledged to put aside her personal views when making rulings.
“This hearing to me is an opportunity to not punch through a glass ceiling, but a reinforced concrete barrier around conservative women,” Graham said. “You’re going to shatter that barrier.”
Democrats have struggled to pin Barrett down on how she would handle cases on abortion, voting rights and the Affordable Care Act, also known as Obamacare.
Under questioning Wednesday, Barrett wouldn’t directly say whether she agreed with her onetime mentor, the late Justice Antonin Scalia, when he called the Voting Rights Act a “perpetuation of racial entitlement” in a 2013 argument. The Supreme Court in that case struck down a core provision of the landmark law, passed in 1965 to protect the rights of Black voters at the polling place.
“When I said that Justice Scalia’s philosophy is mine, too, I certainly didn’t mean to say that every sentence that came out of Justice Scalia’s mouth or every sentence that he wrote is one that I would agree with,” Barrett said. She called the law “a triumph in the civil rights movement.”
Barrett also rejected suggestions that she was pushing to make the court more willing to overturn its precedents. In a 2013 law review article she wrote that a Supreme Court justice should “enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”
But Barrett said she “wasn’t arguing for any alteration” in the rules governing preservation of the court’s precedents. “I was saying this is how it is, this is how the Supreme Court does it, and that’s right,” she said.
The committee’s 12 Republicans and 10 Democrats will hear from outside witnesses on Thursday, and Graham says he will move to set a committee vote to advance her nomination to the full Senate on Oct. 22. Senate Majority Leader Mitch McConnell has signaled he’ll set the stage for a full Senate vote the following week.
If confirmed, Barrett would succeed Justice Ruth Bader Ginsburg, whose Sept. 18 death silenced one of court’s leading liberal voices. That would give the Supreme Court a 6-3 conservative majority.
Republicans on the panel, including Graham, said the 48-year-old Barrett is well qualified for the Supreme Court. She’s served for three years as a federal appeals court judge and has spent years teaching at Notre Dame Law School in South Bend, Indiana.
Democrats worked to avoid attacking the personal views of Barrett, a devout Roman Catholic who personally opposes abortion, during the proceedings, focusing instead on her writings and views on the law.
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