Supreme Court nominee Amy Coney Barrett did a lot more listening than speaking during the first half of what had been billed as a day-long Q&A session on the second day of her Senate confirmation hearing.
Senator after senator used most of the 30 minutes allotted them not to ask Barrett questions, but to aim opinions at her — especially on such “big” issues as the Affordable Care Act (ACA, or Obamacare); Roe v. Wade, the high court decision that made abortion legal nationally; and the prospect of a disputed 2020 election.
Eventually, though, the hearing shifted from political to judicial — and to digging into Barrett’s strongly held views — despite the “near certain outcome” of her confirmation.
Barrett tried to deflect Democratic senators’ suggestions that she has an “agenda” for actions she would take if she were confirmed to take the late Ruth Bader Ginburg’s seat on the high court.
“Judges can’t just wake up one day and say, ‘I have an agenda, I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world,” Barrett told the committee.
She repeatedly refused to preview how she might rule in any future Supreme Court case, whatever its nature, and agreed with the suggestion that once judges put on their black robes, they must be neutral in deciding the law.
Barrett forcefully disputed the suggestion — made in particular, and repeatedly, by President Trump — that if confirmed to the high court she would tend to support Trump, should he fail to win re-election and challenge the results.
“I have never written anything that I thought anybody could reasonably say, ‘This is how she might resolve an election dispute,’ ” Barrett said.
But she refused to commit to recuse herself from election-related cases, saying only that she won’t let herself “be used as a pawn to decide the election for the American people.”
As for Roe v. Wade, Barrett was asked by Sen Patrick Leahy (D-VT) about a 2006 newspaper advertisement denouncing what it called the “barbaric legacy of Roe v. Wade.”
Barrett acknowledged that her name was on the ad, along with others. She said she had signed on to the ad as she left church (she is a devout Roman Catholic) simply because it was “consistent with the views of my church.”
Barrett said she does not consider Roe a “super-precedent” — that is, not among the small number of high court decisions considered to be beyond challenge.
“Roe is not a super-precedent,” Barrett said, adding: “But that does not mean it should be overruled.” Still, she refused to say how, as a member of the court, she would rule on a challenge to the case.
That was a consistent theme for Barrett throughout the long day: asked to predict how she might decide some future Supreme Court case, she demurred, calling it a “hypothetical situation.”
“In a wide-ranging exchange with Sen. Cory Booker (D-NJ), Barrett denounced white supremacy, acknowledged bias in the criminal justice system and praised the nation’s history of peaceful transfers of power after presidential elections,” reported the Washington Post.
But she sidestepped Booker’s direct question about whether presidents should publicly commit themselves to a peaceful transition.
Booker also pressed Barrett about studies showing that Black defendants are more likely to be charged with crimes that carry lengthy mandatory prison terms than are Whites.
“I think in our large criminal justice system it would be inconceivable that there wasn’t some implicit bias,” Barrett said.
Democrats returned repeatedly to the ACA, the widely popular law that provides tens of millions of Americans with health care insurance, and which has been a target of President Trump from the start of his term.
Barrett testified that she has never discussed with either Trump or any other officials how she’d vote on a case involving the ACA’s fate. But here, too, she was somewhat evasive.
“In classic GOP fashion, Barrett dodged questions from Sen. Amy Klobuchar about a series of Trump tweets suggesting his Supreme Court nominees would strike down” the ACA, the Post said.
Sen. Charles Grassley (R-IA) asked her directly whether it was her goal to repeal the ACA 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.”
Sen. Kamala Harris (D-CA), the Democratic vice presidential nominee, joined the hearing remotely and spoke “directly to the American people” about the pandemic, the economic crisis and what the Senate should do to mitigate their effects before she questioned Barrett.
Harris said that Republicans are trying to use the courts to kill the ACA.
“People are scared,” Harris said. “People are scared of what will happen if the Affordable Care Act is destroyed in the middle of a pandemic,” noting that due to the pandemic millions of people with coronavirus now have pre-existing conditions.
She pressed Barrett on whether she had been aware that President Trump said in January 2017 he would nominate Supreme Court justices who would “tear down” the ACA.
“Republicans have been focused on defending Barrett and her Catholic faith against possible criticism concerning issues such as abortion and same-sex marriage,” said the Associated Press.
The Judiciary Committee chairman, Sen. Lindsey Graham (R-SC), asked Barrett if she would be able to shelve her personal beliefs to adhere to law.
“I have done that,” she said. “I will do that still.”
Barrett apologized for using the phrase “sexual preference” in reference to the LGBTQ community, after Sen. Mazie Hirono (D-HI), who noted that the term was widely regarded as offensive, used by those seeking to characterize sexual orientation as a choice.
“I certainly didn’t mean and would never mean to use a term that would cause any offense in the LGBT community.” Barrett said.
Many of the senators, from both parties, spent a good deal more time speaking — at times, lecturing — than they did questioning the nominee.
Some were exceptionally dedicated to hearing themselves speak, notably Republicans Mike Lee of Utah and Ted Cruz of Texas, and Democrat Sheldon Whitehouse of Rhode Island, each of whom scarcely posed a question to the nominee.
There will be a second round of Q&A on Wednesday, with each senator given 20 minutes to speak, and perhaps even to listen.
Sen. Graham, the committee chairman, has indicated that the committee will vote Oct. 22 on Barrett’s nomination, leaving just 11 days before the Nov. 3 election. Democrats do not appear to have the votes to block it.