Judge Amy Coney Barrett, President Donald Trump’s nominee to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, came before the Senate Judiciary for four days of questioning last week.
If Barrett is confirmed, the court will have a conservative majority of six to three, likely for many years, given that Supreme Court appointments are lifelong.
“President Trump did not nominate you to carry on Justice Ginsburg’s legacy,” Sen. Amy Klobuchar, a Minnesota Democrat, said to Barrett. “He nominated you because he wants to undermine or shift that legacy.”
Democrats are concerned that Barrett’s addition to the court would affect legislation on issues including climate change, voting rights, abortion and marriage equality, but the potential undoing of the Affordable Care Act took center-stage during the hearings.
Democrats believe that Barrett’s confirmation could result in millions of Americans losing affordable healthcare in the midst of the coronavirus pandemic.
Barrett declined to answer many questions, both from Senate Democrats and Republicans, citing Justice Ginsburg’s rule for how nominees should field questions during confirmation hearings.
“No hints, no previews, no forecasts,” Barrett said, quoting Ginsburg, when Sen. Dianne Feinstein, a Democrat of California, asked about her stance toward same-sex marriage.
Republicans focused on Barrett’s qualifications and stressed her ability to remain objective on legal issues despite her Catholic beliefs.
“There’s no religious test to serve on the Supreme Court,” Sen. John Cornyn, a Republican of Texas, said. “Why? Because the constitution says so.”
Barrett, a judge for the Seventh Circuit Court of Appeals, is a former professor at Notre Dame’s law school and was a clerk for the late Justice Antonin Scalia.
She is also a practicing Catholic with pro-life views and a mother of seven children. Two of her children are adopted from Haiti.
Barrett has aligned herself with Scalia’s legal philosophies of originalism and textualism, which means that she reads the law as it is explicitly written, rather than interpreting it based on intent.
Rights that are now constitutionally protected, such as abortion and same-sex marriage, are not explicitly stated in the Constitution, meaning that to an originalist, these rights would be up for debate.
Scalia was a staunch conservative, and Democrats fear that Barrett’s confirmation would move the Supreme Court further to the right. While Barrett shares Scalia’s view of the constitution, she emphasized that she is not a “female Scalia.”
“...If I’m confirmed, you would not be getting Justice Scalia,” Barrett said. “You would be getting Justice Barrett.”
Ultimately, Barrett will almost certainly be confirmed to the Supreme Court, given the Republican majority in the Senate.
“This is probably not about persuading each other unless something dramatic happens,” Sen. Lindsey Graham (R-SC), Chairman of the Senate Judiciary Committee, said on the first day of the hearings.
Throughout the hearings, Democrats repeatedly asserted that Barrett’s nomination was being rushed by President Trump to further his political agenda ahead of the upcoming presidential election, including undoing the ACA.
“Simply put, I believe we should not be moving forward on this nomination, not until the election has ended and the next president has taken office,” Sen. Feinstein said.
Feinstein pointed out that when Justice Antonin Scalia died in 2016 under President Obama’s administration, Senate Republicans “refused to consider a replacement for his seat until after the election.”
At the time, Sen. Mitch McConnell, a Republican of Kentucky, had said that the American people should decide who Scalia’s replacement would be once the next president was elected.
The Senate is scheduled to vote on Barrett’s confirmation on Oct. 22.
The Affordable Care Act
The future of the Affordable Care Act, also called Obamacare, was the most-discussed issue of Judge Barrett’s confirmation hearing. Democrats wanted to know if Barrett plans to help the Supreme Court rule that the ACA is unconstitutional.
The Supreme Court is set to decide the constitutionality of the ACA in November 2020, with the case of California v. Texas. Republicans wanted to show that Barrett does not have an agenda, and was not nominated for the purpose of undoing the ACA, as President Trump has repeatedly promised he would.
Sen. Patrick Leahy, a Democrat of Vermont, told Barret that over 20 million Americans rely on the ACA for health insurance, and 2.3 million Americans under the age of 26 stay on their parents’ health insurance because of the ACA.
Sen. Kamala Harris, a California Democrat and the Democratic Vice Presidential nominee, emphasized that overturning the ACA “will result in millions of people losing health care at the worst possible time—in the middle of a pandemic.”
Sen. Chuck Grassley, a Republican of Iowa, asked Barrett, “Have you committed to the president or anyone else that you will vote to repeal the Affordable Care Act if confirmed to the court?” Barrett replied, “Absolutely not.”
“I am not hostile to the ACA at all,” Barrett said in response to a question from Sen. Cornyn (R-TX).
Sen. Klobuchar (D-MN) asked Barrett if she was aware of President Trump’s stance toward the ACA. “[Trump] has said that he wants to get rid of it,” Klobuchar said.
Barrett said that she is aware of Trump’s opposition toward the ACA, but she has “no animus to or agenda for the Affordable Care Act.”
With the 2020 Presidential Election less than a month away, Democrats questioned Judge Barrett’s commitment to upholding voting rights, emphasizing that voter suppression primarily affects minority communities.
Sen. Thom Tillis, a Republican of North Carolina, asked Barrett if she agreed “that every American should have safe access to the vote.” Barrett replied, “Of course.”
Sen. Feinstein (D-CA) brought up Shelby County v. Holder, which essentially weakened the coverage of the Voting Rights Act in 2013. Justice Ginsburg wrote a dissenting opinion, but Justice Scalia was part of the majority opinion.
Sen. Feinstein asked Judge Barrett whether she agreed with the Shelby County decision, given her ideological alignment with Scalia. Barrett said she would take the same “jurisprudential approach” as Scalia, but “can’t express a view on Shelby County.”
Sen. Harris (D-CA) stated that “any nominee for the Supreme Court must understand the effect and the fact of ongoing efforts to discriminate against Black Americans, Latino Americans, Native Americans, students and other communities of color.”
Harris asked Barrett whether she believed voting discrimination still exists, to which she replied, “I’m not going to express an opinion because these are very charged issues…”
Democrats are concerned that Judge Barrett would oppose left-leaning issues, such as marriage equality and LGBT+ rights. In her early career, Barrett clerked with the late Justice Antonin Scalia, who consistently ruled against the right to gay marriage, leaving Democrats to believe that Barrett would follow in his footsteps.
Sen. Feinstein (D-CA.) began with a narrative about Del Martin and Phyllis Lyon’s wedding after the Supreme Court ruled in favor of marriage equality in 2008, and how that was a memorable moment for her. Referring to that and with Justice Scalia, she said, “You identify yourself with a justice that you like him would be a consistent vote to roll back hard fought freedoms and protections for the LGBT community...”
Barrett responded that she has no political agenda and is not Scalia. When asked about her views on sexual orientation, she said “I do want to be clear that I have never discriminated on the basis of sexual preference, and would not ever discriminate on the basis of sexual preference. Like racism, I think discrimination is abhorrent.”
To LGBT+ communities, the term “sexual preference” is considered inappropriate, implying that people choose how they identify themselves.
Sen. Mazie Hirono, a Democrat of Hawaiʻi, challenged this remark, saying, “If it is your view that sexual orientation is merely a preference, as you noted, then the LGBTQ community should be rightly concerned whether you would uphold their constitutional right to marry.”
Given the country’s growing awareness of police brutality against Black Americans this year, both Democrats and Republicans asked Judge Barrett about her views regarding ongoing racial inequalities in the legal system.
Sen. Cornyn (R-TX) asked Barrett if she had seen the video of George Floyd, a Black American man, suffocating under the knee of a police officer in May.
Barrett said that she had seen the video. “...Given that I have two Black children, that was very, very personal for my family,” she said. “I mean, my children, to this point in their lives, have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence.”
Sen. Cory Booker, a Democrat of New Jersey, questioned Barrett on the topic of systemic racism, asking her about her knowledge of the issues Black Americans face. Booker asked Barrett to name any books or law review articles she has read on the topic.
Barrett replied that she was aware of the issue, but had not done any specific research.
“I hope you understand my heart when I look at a justice who is going to serve on the Supreme Court and hasn’t taken the steps to understand the pervasiveness, the facts, the truth about cases of race that are going to come before you,” Booker said to Barrett.
Sen. Mike Crapo, a Republican of Idaho, asked Barrett if she would be “sensitive to the need for equal justice for all under the law.” Barrett responded, “I unequivocally condemn racism and want to do everything in my own capacity personally and as a judge to end it.”
The topics of climate change and global warming were not a top priority in the Barrett hearings. Only three senators questioned Barrett’s beliefs on science and whether she would abide by the law when making environment related decisions, but none of these topics lasted more than five minutes.
After asking Barrett about her views on the merits of nuclear energy and receiving an unclear answer from her, Sen. John Kennedy, a Republican of Louisiana, asked, “How about climate change? I mentioned climate change. Have you read about that?”
Barrett replied that she has read about climate change, but when he asked if she had an opinion about it, she sternly replied, “I’m certainly not a scientist … I would not say that I have firm views on it.”
On Day 3 of the hearing, Sen. Richard Blumenthal, a Democrat of Connecticut, brought up Barrett’s statement from the previous day about her ‘not being a scientist,’ and asked for her opinion once more. Barrett said that her job as a judge does not require her to know what causes global warming, and refused to give her personal opinion.
Sen. Blumenthal moved on and asked, “Do you agree with the President on his views of climate change?” Barrett remained impartial and said, “I don’t know that I have seen the President’s expression of his views on climate change.”
Several Democrats on the Senate Judiciary Committee expressed concern that, if confirmed, Judge Barrett would aid the Supreme Court in undoing landmark abortion rulings like Roe v. Wade, which established abortion as a constitutional right. Republicans maintained that Judge Barrett’s religious beliefs would not affect her judicial decisions if confirmed.
Sen. Graham (R-SC) said that while Judge Barrett is pro-life and a practicing Catholic, her religious views will be set aside when “it comes time to decide the law.”
Sen. Todd Young, a Republican of Indiana, expressed a similar sentiment about Judge Barrett’s religious beliefs. “Being a person of faith doesn’t interfere with one’s ability to apply the law,” he said.
Sen. Leahy (D-VT) said that many Americans “are scared that the clock will be turned back to a time when women had no right to control their own bodies.”
Sen. Feinstein (D-CA) asked Judge Barrett whether she agreed with the late Justice Scalia’s view that Roe v. Wade was “wrongly decided.” Judge Barrett replied that she cannot “pre-commit” to a decision on any case, that she has “no agenda,” and will “stick to the rule of law and decide cases as they come.”
Many gun control advocates worry that if Barrett is confirmed to the Supreme Court, she will rule in favor of the Second Amendment, shifting pre-existing gun laws.
Sen. Graham (R-SC) asked Barrett, “So when it comes to your personal views about this topic, do you own a gun?” Barrett hesitated for a brief second, and then replied that she does.
“Do you think you could fairly decide a case even though you own a gun?” asked Graham, to which Barrett quickly replied, “Yes.”
Barrett continued, “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.”
Sen. Feinstein followed Graham, and commented on gun rights as well. She asked Barrett, “Do you agree that federal state and local governments have a compelling interest in preventing a rise in gun violence, particularly during a pandemic?” Barrett said that she supports the government's stance on the right to keep guns from those who might be dangerous or mentally ill.