Barrett: Didn’t say how I’d rule

Published: 10/14/2020 8:40:58 AM

WASHINGTON — Judge Amy Coney Barrett told the Senate Judiciary Committee on Tuesday that she has made “no commitment” to the White House or senators on how she would rule on major cases on health care law, abortion and election disputes.

Barrett was pressed on the Affordable Care Act — the court will consider the fate of the law also known as Obamacare next month — as well as on abortion rights, gun control and same-sex marriage. The panel’s chairman, Sen. Lindsey Graham, R-S.C., has signaled that the committee probably will vote on her nomination Oct. 22.

In response to the first round of questions, Barrett refused to say whether she agreed with her former boss and mentor Justice Antonin Scalia when he said the landmark case Roe v. Wade guaranteeing a woman’s right to abortion was wrongly decided. She did say that in 2006 she signed a statement that supported “the right to life from conception to natural death.” She says it was “consistent with the views of my church.”

Democrats cast Barrett as a conservative ideologue whose confirmation to the high court would threaten the Affordable Care Act. Republicans tried to deflect the Democrats’ focus on health care and defended Barrett from the assumption that she would be an automatic vote to dismantle the landmark law.

Barrett testified Tuesday that she has never discussed with Trump or any other officials how she would vote on a pending case on the fate of the Affordable Care Act.

That response came under questioning from Sen. Chuck Grassley, R-Iowa, who asked her whether her goal was to repeal the 2010 health-care law and whether she had pledged to anyone that she would vote to strike it down.

“Absolutely not,” Barrett said. “I was never asked. And if I had been, that would have been a short conversation.”

Barrett, speaking generally, said “no one ever talked about any case with me.”

“Just as I didn’t make any prior commitments and was not asked to make any commitments on the executive-branch side, I can’t make any prior commitments to this body either. It would be inconsistent with judicial independence,” she said.

She reiterated that view under a similar question about the Affordable Care Act from Sen. Pat Leahy, D-Vt., stating that “it would be a gross violation of judicial independence for me to make any such commitment or for me to be asked about that case.”

She later told Sen. Christopher Coons, D-Del.: “I’m not on a mission to destroy the Affordable Care Act.”

On the topic of abortion, Barrett refused to say whether she agreed with Scalia, who said the landmark abortion rights case Roe v. Wade was wrongly decided. In response to questions from Sen. Dianne Feinstein, D-Calif., Barrett said it would be inappropriate for her to comment because of ongoing controversy in the courts over abortion access.

Barrett told Feinstein that she was “not going to grade” decisions or “give a thumbs-up or thumbs-down.”

“It would be wrong for me to do that as a sitting judge,” said Barrett, who attributed her approach to the reasoning Justice Elena Kagan applied during her confirmation hearings.

Feinstein continued to press Barrett for an answer on a subject important to many women. Without a response, “that makes it difficult for me and other women on this committee because this is a very important case and it affects millions of women,” Feinstein said. “You could be a very important vote.”

In response, Barrett said, “Senator, I completely understand why you are asking the question, but again, I can’t pre-commit or say ‘Yes, I’m going in with some agenda.’ “

“I have no agenda to try to overrule Casey,” the judge said in reference to the subsequent court decision affirming the constitutional right in Roe v. Wade. “I have an agenda to decide cases as they come.”

Later in the day, she responded to a question from Sen. Amy Klobuchar, D-Minn., by saying “Roe is not a super-precedent. She added: “But that does not mean it should be overruled.”

Few judicial decisions are universally regarded as super-precedent. On Tuesday, Barrett cited two: Marbury v. Madison, which established the Supreme Court’s ability to strike down unconstitutional laws, and Brown v. Board of Education, which abolished segregation and the practice of “separate but equal,” as decisions “that no one questions anymore.”

Barrett’s Catholic faith has attracted attention from the Judiciary Committee again. The first senator to directly reference Barrett’s faith in this week’s confirmation hearings was Graham, who asked the nominee whether she can set aside her religious beliefs to fairly decide legal cases.

Barrett responded in the affirmative.

“I can. I have done that in my time on the 7th Circuit,” Barrett said. “If I stay on the 7th Circuit, I’ll continue to do that. If I’m confirmed to the Supreme Court, I will do that.”

Republicans have preemptively criticized Democrats and accused them of bringing up Barrett’s Catholic faith in connection to her ability to be a fair Supreme Court justice. But no Democrats have, and none plan to.

The question of fairness spread to other issues, when Barrett, under questioning from Graham, confirmed that her family owns a gun but said that she could fairly decide Second Amendment cases even though she was a gun owner.

Sen. Dick Durbin, D-Ill., pressed Barrett about her dissent in a gun rights case in which she said the Constitution does not give the government the authority to ban all felons from owning guns.

Barrett argued in her dissent in Kanter v. Barr that only those shown to be dangerous may be stripped of their Second Amendment right to own firearms.

“I concluded based on that history that one couldn’t take the right away simply because one was a felon. There had to be a showing of dangerousness,” she said.

“We could all agree that we ought to be careful saying that just because someone is a felon, they lose any of their individual rights.”

Durbin said that Barrett’s approach ignored studies that show higher recidivism rates among those convicted of even nonviolent felonies and that courts are not equipped to predict which nonviolent felons pose a risk and which do not. He noted Barrett’s suggestion, in contrast to her stance on individual gun rights, that the government may take away certain civic rights, such as voting.

“The conclusion of this is hard to swallow,” Durbin said: “the notion that Kanter should not be slowed down to buy a firearm” but that “when it comes to taking away a person’s right to vote, that’s a civic duty.”

In response, Barrett said, “I expressed no view on whether that was a good idea,” and she noted that the voting rights of felons were not at issue in the case.

Barrett also signaled Tuesday that challenges to Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage in the United States, probably would never reach the Supreme Court.

In a discussion with Graham over judicial precedents, Barrett said the “most likely result” for any legal fights involving same-sex marriage is that the district courts, which are bound by Supreme Court precedent, would strike down any lawsuits that would challenge Obergefell.

She also stressed that on hot-button issues, a case would not automatically come before the Supreme Court; rather it would end up there through a winding and extensive process that would begin with a challenge in lower courts.

She declined to answer when Feinstein asked her whether the Constitution gives the president the authority to unilaterally delay an election, an idea that Trump has floated. The president has no explicit power to take such a step.

Barrett refused to commit to recuse herself from cases involving disputes over next month’s presidential election, but she told senators that she will not allow herself “to be used as a pawn to decide the election for the American people.”

“I will consider all factors that are relevant to that question that requires recusal when there’s an appearance of bias,” she told Coons, who like other Senate Democrats said Barrett should not participate in cases involving the election of the president who nominated her.

Klobuchar questioned Barrett about voter intimidation; Trump has encouraged poll-watching, raising fears about potential confrontations as millions of Americans vote.

Barrett declined to answer whether voter intimidation is unconstitutional. “I can’t characterize the facts in a hypothetical situation,” she told Klobuchar.

She also said she has never taken a position on whether it was right for the Senate in 2016 to block the nomination of Circuit Judge Merrick Garland to the Supreme Court, after Sen. Leahy referred to a 2016 interview Barrett did that has since been somewhat misconstrued.

Leahy said to Barrett that in the 2016 interview with CBSN, she “laid out the case for blocking” Garland, President Barack Obama’s third nominee to the Supreme Court. He said Barrett made an argument that replacing Scalia with a moderate would “dramatically flip the balance of the court.”

“My understanding of the statistics was that neither side could claim precedent, that this was a decision that was the political branches’ to make,” Barrett said of the interview. “And I didn’t say which way they should go. I simply said it was the Senate’s call. I didn’t advocate or publicly support the blockade of Judge Garland’s nomination, as you’re suggesting.”

Barrett added: “What I was suggesting is that it was unsurprising that there was resistance as a political matter to that nomination because it would change the balance of the court.”

Her critics on social media have pointed to the 2016 clip as proof that she believed it would be inappropriate for Obama to nominate a jurist who would change the balance of the court. But Barrett said no such thing; rather, she was making a point about how rare that scenario would be in a divided government, which was the case in 2016 when the GOP had the majority in the Senate and a Democrat was in the White House.

Senate Democrats criticized Graham Monday for scheduling Barrett’s markup before her confirmation hearings concluded, saying the move violated long-standing norms for Supreme Court nominees.

“It’s another example of Republicans ignoring rules and tradition so they can rush this nominee through before the election — and in time to supply a vote to strike down the Affordable Care Act,” Feinstein said in a statement. She called the decision “unprecedented in my time on the committee.”

A majority of American voters oppose holding Barrett’s confirmation hearings now, though opposition has eased since Trump announced his choice to replace the late Justice Ruth Bader Ginsburg, according to a Washington Post-ABC News poll.


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