WASHINGTON — Judge Amy Coney Barrett ended her third and final day of her Senate confirmation hearings by fending off questions about the impact she’ll have on a court she’s all but certain to join, shifting the jurisprudence to the right with a conservative 6-3 majority.
Barrett parried Democrats’ queries about her views on a looming case that could strike down the Affordable Care Act, a potential litigation over the election, climate change, the civil rights voting act and the Supreme Court’s power over the president.
The Senate Judiciary Committee, which held the hearings, will meet Thursday morning in executive session, where Democrats will force a week’s postponement of debating and voting on Barrett’s nomination and will complain about what they call a rushed, illegitimate process.
Sen. Lindsey Graham (R-South Carolina), the committee chairman, assured Barrett she would be confirmed and on the court soon — likely before the Nov. 3 election, putting her in place in case of an election dispute and in time for the Nov. 10 oral arguments on the Affordable Care Act.
Democrats portrayed Barrett as a justice would reverse the cases broadening the rights of women, workers, black, Latino, immigrants and others that the justice she would replace, the late Ruth Bader Ginsburg, who died Sept. 18, had built over 27 years.
Republicans held Barrett up as a model of a devout Catholic conservativism for girls and young women, hailing her intelligence, her poise and her devotion to her family of seven children.
And the two sides offered deeply divergent views of her impact as opened the hearing Wednesday.
"This is history being made, folks," said Graham. "This is the first time in American history that we've nominated a woman who's unashamedly pro-life and embraces her faith without apology, and she's going to the court. A seat at the table is waiting on you."
Sen. Dick Durbin (D-Ill.), referring to President Donald Trump, told Barrett that "an orange cloud" hangs over her rushed nomination.
"You are making history," Durbin said. "You are the first nominee for a vacancy on the Supreme Court to be considered after July One of the election year. In fact, you are the first nominee to ever be considered in the midst of an election."
Here are some take-aways of the third day of the hearings.
President’s self-pardon an "open question"
Barrett declined to answer a question spurred by Trump's declaration in a 2018 tweet that "I have the absolute right to PARDON myself." That claim led Sen. Patrick Leahy (D-Vt.) to ask Barrett two questions. Is anybody above the law? "I agree no one is above the law," she said. Leahy then asked, "And does a president have an absolute right to pardon himself for a crime?" Barrett said, "That question has never arisen," Barrett said. "So, because it would be opining on an open question when I haven't gone through the judicial process to decide, it’s not one in which I can offer a view." Leahy said, "I find your answers somewhat incompatible."
ACA case like a "Jenga game"
Barrett’s first oral argument as a justice would come a week after the election in a case that seeks to strike down the Affordable Care Act because Congress zeroed out the tax penalty for not buying health insurance. She could be the deciding vote when the Supreme Court rules whether the entire law is unconstitutional or just the mandate to buy health insurance. Barrett called the key issue severability. "So if you picture severability being like a Jenga game, it's, kind of, if you pull one out, can you pull it out while it all stands, or if you pull two out, will it still stand?" Barrett said. "Severability is designed to say, ‘Well, would Congress still want the statute to stand even with this provision gone?" Still, Barrett gave no clue how she would rule.
Barrett mum on key privacy case
In 1965, the Supreme Court ruled in Griswold v. Connecticut that married couples have the right to use contraceptives in the privacy of their own homes. That privacy right anchors the legality of abortions, unmarried couples, same-sex couple intimacy and same-sex marriages. Most current justices said in their confirmation hearings that Griswold was correctly decided. But Scalia said it was wrong under originalist philosophy and he voted against same-sex rights based on it. Barrett declined to take a position on Griswold. "Griswold is very, very, very, very, very, very unlikely to go anywhere," she said, because it's "shockingly unlikely" a state would outlaw birth control. Does she agree with Scalia? "I do share Justice Scalia's approach to text, originalism and textualism," she said. "But everything that he said is not necessarily what I would agree with or what I would do if I were Justice Barrett. That was Justice Scalia."
A forgotten freedom
In a surprising fumble, Barrett came up short when Sen. Ben Sasse (R-Neb.) asked her what should have be an easy question for a noted former law professor: "What are the five freedoms of the First Amendment?" She paused. "Speech, press, religion, assembly," Barrett said, then trailed off. "I don’t know, what am I missing?" Sasse finished the list: "Redress or protest." He then asked why those five freedoms were put in one amendment. She didn’t at first grasp why he was asking her that question. "I just wanted to hear you reflect a little bit on the glories of the First Amendment," Sasse said.
"Open mind" on courtroom cameras
Sen. Charles Grassley (R-Iowa) has pushed for cameras to be allowed for media coverage of court proceedings, to no avail, as the justices have resisted. But he noted that the 7th Circuit Court of Appeals, where Barret now serves, adopted procedures to allow requests for video recording of oral arguments, as well as public release of the recordings. "If confirmed, would you keep an open mind about allowing cameras in the Supreme Court?" he asked. Barret said, "I would certainly keep an open mind about allowing cameras in the Supreme Court."