Over and over, Amy Coney Barrett said she’d be her own judge if confirmed to the Supreme Court. But she was careful in two long days of Senate testimony not to take on the president who nominated her, and she sought to create distance between herself and past positions, writings on controversial subjects and even her late mentor.
Barrett’s confirmation to the Supreme Court to take the seat of the late Justice Ruth Bader Ginsburg seems inevitable, as even some Senate Democrats acknowledged in Senate hearings on Tuesday and Wednesday. The shift would cement a 6-3 conservative majority on the court and would be the most pronounced ideological change in 30 years, from the liberal icon to the conservative appeals court judge.
The 48-year-old judge skipped past Democrats’ pressing questions about ensuring the date of next month’s election or preventing voter intimidation, both set in federal law, and the peaceful transfer of presidential power. She also refused to express her view on whether the president can pardon himself. “It’s not one that I can offer a view,” she said in response to a question Wednesday from Sen. Pat Leahy of Vermont.
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Democrats raised those questions because President Donald Trump has done so himself.
When it came to major issues that are likely to come before the court, including abortion and health care, she repeatedly promised to keep an open mind and said neither Trump nor anyone else in the White House had tried to influence her views.
“No one has elicited from me any commitment in a case,” she said.
Nominees typically resist offering any more information than they have to, especially when the president’s party controls the Senate, as it does now. But Barrett wouldn’t engage on topics that seemed easy to swat away, including that only Congress can change the date that the election takes place.
She said she is not on a “mission to destroy the Affordable Care Act,” though she has been critical of the two Supreme Court decisions that preserved key parts of the Obama-era health care law. She could be on the court when it hears the latest, Republican-led challenge on Nov. 10.
Barrett is the most open opponent of abortion nominated to the Supreme Court in decades, and Democrats fear that her ascension could be a tipping point that threatens abortion rights.
There was no hiding her views in at least three letters and ads she signed over 15 years and her membership in Notre Dame’s Faculty for Life. So Republican senators embraced her stance, proudly stating that she was, in Judiciary Committee Chairman Lindsey Graham’s words, an “unashamedly pro-life” conservative who is making history as a role model for other women.
Sen. Josh Hawley, R-Mo., said there “is nothing wrong with confirming a devout pro-life Christian.”
Barrett refused to say whether the 1973 landmark Roe v. Wade ruling on abortion rights was correctly decided, though she signed an open letter seven years ago that called the decision “infamous.”
Democrats pressed repeatedly on the judge’s approach to health care, abortion, racial equity and voting rights, but conceded they were unlikely to stop her quick confirmation.
“When you are on the court,” Sen. Sheldon Whitehouse, D-R.I., began one question in which he asked her to keep an open mind on the high court bench. Barrett readily agreed to do so.
In an exchange with Sen. Dianne Feinstein, D-Calif., Barrett resisted the invitation to explicitly endorse or reject the late Justice Antonin Scalia’s comments about perpetuating “racial entitlement” in a key voting rights case.
“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 Voting Rights Act a “triumph in the civil rights movement,” without discussing the specifics of the earlier challenge to it. The court will hear another challenge to the law early next year.
One of the more dramatic moments came late Wednesday when Barrett told California Sen. Kamala Harris, the Democratic vice presidential nominee, that she wouldn’t say whether racial discrimination in voting still exists nor express a view on climate change.
Harris asked if she agreed with Chief Justice John Roberts, who wrote in a 2013 voting rights case that “voting discrimination still exists; no one doubts that.”
Barrett said she would “not comment on what any justice said in an opinion.”
Asked whether “climate change is happening,” Barrett said she wouldn’t engage because it is “a very contentious matter of public debate.” Barrett did, however, say she believes the novel coronavirus is infectious and smoking causes cancer.
Along with trying to undo the health care law, Trump has publicly stated he wants a justice seated for any disputes arising from the election, and particularly the surge of mail-in ballots expected during the pandemic as voters prefer to vote by mail.
Barrett testified she has not spoken to Trump or his team about election cases, and declined to commit to recusing herself from any post-election cases.
She did describe what the role of the court would be if it were asked to intervene. “Certainly the court would not see itself -- and would not be -- electing the president. It would be applying laws that are designed to protect the election and protect the right to vote,” Barrett said. In 2000, the court’s decision in Bush v. Gore brought a Florida recount to a halt, effectively deciding the election in George W. Bush’s favor. Barrett was on Bush’s legal team in 2000, in a minor role.
Barrett’s nomination has been the focus at a Capitol mostly shut down by COVID-19 protocols. The health care debate has been central to the week’s hearings, as Americans struggle during the pandemic, leading to a sharp exchange among senators at one point.
Republican Ted Cruz of Texas scoffed that few Democratic senators attended the hearing. Durbin retorted that health risks left many senators monitoring from their offices rather than convening as a group. Two GOP senators who tested positive for COVID-19 after attending Barrett’s nomination at the White House now say they are symptom free, and they are attending in person.
Underscoring the Republicans’ confidence, Graham set an initial committee vote on the nomination for Thursday, the last day of hearings, which would allow final approval by the full Senate by the end of the month.