WASHINGTON — Judge Amy Coney Barrett worked hard at redefining her image as an unwavering conservative jurist on her first long day of questioning Tuesday by a deeply divided Senate Judiciary Committee whose minds already are made up about her.
Barrett repeatedly dodged questions about how she viewed or would rule on striking down Roe v. Wade, overturning the Affordable Care Act and challenges to gun safety laws under the Second Amendment, citing what’s called the Ginsburg rule.
When the late Justice Ruth Bader Ginsburg appeared before the committee in her confirmation process, Barrett noted that she "used this to describe how a nominee should comport herself at a hearing: ‘No hints, no previews, no forecast.’ "
But Barrett remained closely identified with her mentor, Justice Antonin Scalia, and his conservatism and judicial philosophy, and that troubled Democrats who pointed out that she would replace the high court’s liberal lion.
"You consider Justice Scalia, one of the most conservative justices in the history of the Supreme Court, as your mentor," Klobuchar said. "You would be the polar opposite of Justice Ginsburg."
Sen. Lindsey Graham (R-S.C.), the committee chairman, agreed, in his own way. "I think it's OK to live your life in a traditional, Catholic fashion and you still be qualified for the Supreme Court," he said. "So all the young conservative women out there, this hearing, to me, is about a place for you."
Barrett: I’m not Scalia
Barrett signaled she will establish her own identity on the Supreme Court, even though she said about Scalia, "His judicial philosophy is mine, too." That means, she said, "that I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it." In contrast, the court’s more liberal bloc interprets the Constitution based on changing circumstances and an understanding of its real world consequences. Yet when asked if she would be a "female Scalia," Barrett noted there’s even disagreement among originalists and textualists in the court’s more conservative bloc. "I want to be careful to say that if I'm confirmed you would not be getting Justice Scalia," she said. "You would be getting Justice Barrett."
No recusal promise, no agenda
Barrett repeatedly tried to fend off Trump’s talk and tweets about for his nominees for the Supreme Court. She refused to promise to recuse herself if a case about the 2020 election came before the Supreme Court. "I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people," she said. Asked about Trump’s post on Twitter saying his nominees would overturn Obamacare, she said, "I can’t really speak to what the president has said on Twitter," later adding, "I’m not on a mission to destroy the Affordable Care Act." Trump also promised his court appointments would overturn Roe v. Wade. When Sen. Dianne Feinstein asked Barrett if she agreed with Scalia that landmark case was wrongly decided, Barrett said, "I can't pre-commit or say yes, ‘I'm going in with some agenda,’ because I’m not. I don’t have any agenda."
Barrett: Roe v. Wade not a ‘super-precedent’
From the start, senators pressed Barrett — one of the most openly anti-abortion nominees to the Supreme Court in years — for her views on whether Roe v. Wade was correctly decided or should be overturned. The former Notre Dame law professor repeatedly refused to answer, but also sought to reassure Senate Democrats that she had no agenda. Sen. Amy Klobuchar (D-Minn.) asked if Roe v. Wade is a super-precedent, like Brown v. Board of Education. Barrett said scholars define a super-precedent as cases "that are so well-settled that no political actors and no people seriously push for their overruling." Barrett added, "And I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category. And scholars across the spectrum say that doesn’t mean that Roe should be overruled."
Gun rights, voting rights
Sen. Dick Durbin (D-Ill.) grilled Barrett over her dissent in Kanter v. Barr that argued only violent felons, not all felons, can be stripped of their Second Amendment rights to own firearms. She said she "used an originalist methodology" and concluded "that one couldn’t take the right away simply because one was a felon. There had to be a showing of dangerousness." Durbin suggested she had legislated from the bench: "The word violent isn't in there, but you found it, or at least found reference to it." Durbin also noted Barrett’s dissent cited history giving greater constitutional protection to owning a gun than to voting, a conclusion he found "hard to swallow." Barrett said, "It’s expressed in the constitutional text. But I expressed no view on whether that was a good idea, whether states should do that, and I didn't explore in that opinion."
Barrett reflected on George Floyd video
The George Floyd video touched her family, Barrett said, especially her adopted daughter from Haiti, 17-year-old Vivian. "It was very difficult for her. We wept together in my room," Barrett said. She said she and Vivian have had a continuing discussion about the risk of brutality facing her brother John Peter, also adopted from Haiti, or the children she may one day have. "It was also difficult for my daughter Juliet, who's 10," Barrett said. "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." But she declined to discuss systemic racism or what to do about it. "I think it is an entirely uncontroversial and obvious statement — given as we just talked about the George Floyd video — that racism persists in our country," Barrett said.