Senate Democrats are grilling Supreme Court nominee Amy Coney Barrett on hot-button issues like ObamaCare and the Nov. 3 election, but have struggled to pin down how she would rule on such cases if she’s confirmed later this month.
The Senate Judiciary Committee is just hours into two days of the question-and-answer portion of Barrett’s four-day confirmation hearing. Tuesday’s session alone is expected to last at least 11 hours.
Democrats are questioning Barrett on a litany of issues, including Roe v. Wade, LGBTQ rights, the outcome of the Nov. 3 election and the Affordable Care Act case slated for oral arguments before the Supreme Court on Nov. 10.
Barrett — while stressing that she would not bring a political agenda to the bench and had given no commitments to the White House about future rulings — sidestepped questions that attempted to reveal her legal thinking in some of the most divisive issues being discussed.
“I do want to be forthright and answer every question so far as I can. I think on that question I’m going to invoke Justice Kagan’s [answer], which I think is perfectly put. When she was in her confirmation hearing, she was not going to grade precedent, or give it a thumbs up or a thumbs down,” Barrett said, referring to Justice Elena Kagan, who was appointed to the Supreme Court by former President Obama in 2010, when asked about Roe.
Supreme Court nominees typically avoid weighing in on political questions, or issues that could come before the justices. Barrett, answering a question from Sen. Dianne Feinstein (Calif.), the top Democrat on the panel, at one point referenced the late Justice Ruth Bader Ginsburg, whose seat she would fill if confirmed by the Senate.
“Now Justice Ginsburg … used this to describe how a nominee should comport herself at a hearing: No hints, no previews, no forecast. That had been the practice of nominees before her but everybody calls it the Ginsburg rule because she stated it so concisely and it has been the practice of every nominee since,” Barrett said.
Sen. Richard Blumenthal (D-Conn.), during the committee's lunch break, said Barrett's answers are nonetheless revealing.
"So far she has perfected the art of non-answers. I think she has revealed that she is evading a lot of the tough questions," Blumenthal said.
Democrats are eager to have Barrett weigh in on health care, including the Affordable Care Act, as they put the issue at the forefront of the fight over her nomination.
"Now they think they have a winner to tilt the court not only on the Affordable Care Act but on reproductive freedoms and the sensible gun violence measures that states are passing,” Blumenthal told reporters on Tuesday morning.
Barrett said she was not “hostile” to the Affordable Care Act, or any legislation passed by Congress.
Senators asked Barrett if she would recuse herself from the Affordable Care Act (ACA) case or a case involving the outcome of the Nov. 3 election, saying that President Trump’s comments on how he would expect his nominee to rule in both cases presented conflicts for her.
Barrett declined to say what she would do in those situations.
"It always happens after consultation with the full court, so I can't offer an opinion on recusal without short-circuiting that entire process," Barrett said.
Asked separately if the president had the authority to unilaterally delay the election, Barrett declined to say, adding that giving “off the cuff answers” would make her a “legal pundit.”
Barrett, however, did try to put space between herself and the White House about any cases that may reach the Supreme Court, noting she had never discussed the ACA or an election-related case with Trump or anyone else on his staff.
“I have had no conversation with the president or any of his staff on how I might rule in that case. 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 and how I would rule,” Barrett said.
“I also think it would be a complete violation of the independence of the judiciary for anyone to put a justice on the court as a means of obtaining a particular result,” she added.
Barrett added that for the same reason she did not make any commitments to the White House that she would also not make any pre-commitments during the Senate Judiciary Committee hearing.
“It would be inconsistent with judicial independence,” she said.
Republicans defended Barrett and urged her to avoid tipping her hand on how she would decide a case.
“Policymaking is not the proper role of the judicial branch. That role is reserved for the legislative and executive branch. ... If you do lawmaking we can’t vote you out of office. Lawmaking is our job. If people don’t like what we do, they can vote us out of office,” said Sen. Chuck Grassley (R-Iowa).
Democrats tried to get Barrett to weigh in on a host of other issues, including LGBTQ rights, voting rights, racism and the Second Amendment.
Asked about the death of George Floyd, Barrett said it was “very, very personal,” referencing her own Black children, but declined to discuss the “nature of the problem.”
“Those things, you know, are policy questions, they’re hotly contested policy questions," she said. "So while I did share my personal experience … giving broader statements or making broader diagnosis about the problem is kind of beyond what I’m capable of doing as a judge."
Sen. Dick Durbin (D-Ill.), however, replied, “I just don't believe you can be as passionate about originalism and the history behind language that we’ve had for decades if not centuries without having some thought about where we stand today.”
After a separate back-and-forth with Durbin on the Second Amendment and voting rights, Barrett interjected that she didn’t have an agenda.
“To the extent, Sen. Durbin, that you’re suggesting I have some sort of agenda on felon voting rights, or guns … or anything else, I can assure you and the committee, that I do not,” Barrett said.
Durbin replied that he was not implying that she had an agenda but that she comes to the Supreme Court “with life experiences.”