Supreme Court Nominee Barrett Faces Final Day of Questioning in Confirmation Hearings

Supreme Court Nominee Barrett Faces Final Day of Questioning in Confirmation Hearings
Supreme Court Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her Supreme Court confirmation hearing on Capitol Hill in Washington on Oct. 14, 2020. (Andrew Caballero-Reynolds-Pool/Getty Images)
Janita Kan

Supreme Court nominee Amy Coney Barrett continued to defend her judicial independence and impartiality during the third day of the confirmation hearings before the Senate Judiciary Committee.

Following an 11-hour hearing the day before, Barrett on Oct. 14 faced a second day of questioning from committee members, who quizzed her about voting rights, Medicare, the Affordable Care Act (ACA), climate change, immigration, among other social issues. Some senators made further attempts to press the judge into acknowledging constitutional limits on presidential power.

Barrett, who exercised prudence during the first round of questioning, continued to invoke the standard that judges shouldn’t offer their opinion on cases, hypotheticals, or “grade” precedents, and should avoid expressing their views on issues that might come before the courts.

Chairman Lindsey Graham (R-S.C.) opened the second of two days of questioning by expressing how “proud” he was of Barrett for shattering “a reinforced concrete barrier around conservative women.”

He said that the judge deserves a seat at the Supreme Court table as much as Justices Sonia Sotomayor and Elena Kagan, whom he praised as “incredibly qualified women of great character, disposition, and integrity.”

“I believe the same about you,” Graham told Barrett. “This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology, and she is going to the court.”

Barrett, 48, was nominated by President Donald Trump to succeed the late Associate Justice Ruth Bader Ginsburg on the nation’s top court. Her potential confirmation is expected to further tilt the ideological balance and solidify the conservative lean on the court.

Senate Democrats, who made the ACA a main focus of the hearings, continued to press Barrett about academic critiques she made as a law professor about prior cases involving former President Barack Obama’s signature health care law.

Barrett made clear that she holds no hostility toward the law.

“I want to stress I have no animus to or agenda for the Affordable Care Act,” she told one of the senators.

At one point in the hearing, Sen. Chris Coons (D-Del.) suggested that Barrett would vote the same way as Justice Antonin Scalia, for whom she clerked for more than a decade ago. In her speech to accept the nomination in September, Barrett said Scalia’s “judicial philosophy is mine, too.”

Coons’s suggestion prompted Barrett to push back and to assert her independence as a judge.

“I hope that you aren’t suggesting that I don’t have my own mind or that I couldn’t think independently or that I would just decide, ‘Let me see what Justice Scalia has said about this in the past,’ because I assure you, I have my own mind,” Barrett said.

“But everything that he said is not necessarily what I would agree with or what I would do if I were Justice Barrett.”

In response, Coons said: “President Trump did not nominate you to carry on Justice Ginsburg’s legacy. He nominated you because he wants to undermine or change or shift that legacy, and he’s been very clear repeatedly before you were chosen about his intent to nominate justices in the mold of Justice Scalia.”

Barrett’s refusal to offer hints on how she would rule on cases or her views on issues also led to some heated moments. Sen. Dick Durbin (D-Ill.) engaged in a line of questioning regarding voting rights that appeared to challenge Barrett’s resolve to avoid answering hypothetical questions.

Barrett’s refusal to directly answer Durbin’s question about whether the president has the right to deny a person the right to vote based on race prompted the senator to respond: “For a textualist, that is clear text as I see it, but when asked whether or not the president has any authority to unilaterally deny that right to vote for a person based on race or even gender, are you saying you can’t answer that question?”

The back and forth between the two culminated in Durbin asking, “Whether a president can unilaterally deny, you’re not going to answer yes or no?”

Barrett remained determined, insisting that she was “not going to answer hypotheticals.”

“It strains originalism if the clear wording of the Constitution establishes a right and you will not acknowledge it,” Durbin responded.

Barrett then replied: “Well Senator, it would strain the canons of conduct, which don’t permit me to offer off-the-cuff reactions or any opinions outside of the judicial decision-making process. It would strain Article III, which prevents me from deciding legal issues outside the context of cases and controversies, and, as Justice Ginsburg said, it would display disregard for the whole judicial process.”

The confirmation hearings will wrap up on Oct. 15. The committee is expected to vote on her nomination on Oct. 22. The full Senate is then expected to vote within a few days, Senate Majority Leader Mitch McConnell (R-Ky.) has indicated. Senate Republicans are believed to have enough votes to put Barrett on the court.