Judge Amy Coney Barrett refused to reveal on her second day of confirmation hearings Tuesday whether she would vote to overturn Roe. v. Wade or a landmark gay marriage decision – or remove herself from cases on Obamacare or a potential presidential election dispute.
Like other nominees before her, Barrett held back on the most controversial cases coming before the ideologically divided court – including an Affordable Care Act case coming up just days after the elections.
Barrett instead relied on well-established language about precedent and the laws of recusal, leaving Senate Democrats grasping for information about how she might operate on the court as they questioned her on culture war issues and Obamacare, which is key to their election campaign.
At the same time, Barrett opened up about her decision to undergo the ‘excruciating process’ of accepting President Trump’s nomination to the Supreme Court – telling senators she strives never to ‘impose’ her own choices on others.
She addressed her Catholic faith saying that she did not bring it to her rulings as a federal appeals judge and would not do so if she is confirmed to the high court, and said she had known that her faith and that of her family would be ‘caricatured’ as a result of being nominated.
‘I have decided to pursue a career and have a large family. I have a multi-racial family. Our faith is important to us.’ hey are my choices. I have never tried in my personal life to impose my choices,’ she said. She also said her family owns a gun.
Barrett resisted attempts by Democrats who pressed her repeatedly on whether she believes Roe v. Wade was wrongly decided – which would be an obvious clue on whether she would vote to strike it down, a key aim of some conservatives but also a rallying cry for liberals.
Questions on contentious issues: Amy Coney Barrett was asked about her positions on Roe v. Wade, same-sex marriage, the Affordable Care Act and whether she would recuse herself from ruling on cases relating to the upcoming election but declibe to spell out any position on them
Family arrival: Six of Amy Coney Barrett’s children arrived just ahead of her for the hearing
‘I want to be careful to say that if I’m confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett,’ she distinguished
‘WE WEPT OVER GEORGE FLOYD VIDEO’
Coney Barrett said the police killing of George Floyd in Minneapolis in May had a ‘very personal’ effect on her family and she and her children wept over his death.
Barrett was asked by Illinois Democratic Sen. Dick Durbin whether she had seen the footage of a police officer pressing a knee to the black man’s neck until he stopped breathing.
Barrett said she had.
‘Given that I have two black children, that was very, very personal for my family,’ she said.
‘My 17-year-old daughter Vivian, who’s adopted from Haiti, all of this was erupting, it was very difficult for her. We wept together.’
Personal: Coney Barrett highlighted how her children, including adopted son John Peter, wept over the George Floyd video
She said Vivian was upset about the potential to happen to ‘her brother or the son she might have,’ and that she had also to explain to her youngest daughter the presence of racism in American society.
‘My children, to this point in their life, have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence,’ she said.
Barrett made a distinction between her feelings as a person and her role as a judge, refusing to give her thoughts on systemic racism as Durbin had requested.
She said commenting on what policies should be used to combat racism would be ‘kind of beyond what I´m capable of doing as a judge.’
‘If I express a view on a precedent one way or another, it signals to litigants that I might tilt one way or another on a pending case,’ she explained as she dodged the question on Roe v. Wade by ranking Democrat Sen. Dianne Feinstein.
The senior lawmaker then asked Barrett if she agreed with the late Justice Antonin Scalia’s view that the case was wrongly decided.
Scalie expressed the view in dissents and in speeches, and Barrett said she sees herself as inspired by his philosophy – but repeatedly declined to answer questions about whether she agreed.
Whether Roe v. Wade is settled law is a key liberal-conservative dispute, with liberals seeing the right to choose as just as settled as the court’s prohibition of segregation in Brown v. Board of Education, while conservatives do not, and say that they would like to see it overturned.
That would eliminate federal abortion rights and return abortion to being potentially outlawed by some states.
For decades confirmation hearings have seen judges asked about Roe v. Wade by both sides, with most nominees giving similar answers to Coney Barrett – although Ruth Bader Ginsburg told senators clearly that she believed in abortion rights at her confirmation hearing.
Coney Barret did not offer any view.
‘Senator I completely understand why you are asking the question,’ she told Feinstein as she was asked if Roe v. Wade was ‘wrongly decided.’
‘I can’t pre-commit or say: yes I’m going in with some agenda because I am not,’ she said.
‘I don’t have any agenda. I have an agenda to stick to the rule of law and decide cases as they come.’
Nor would she say ‘as a person’ whether it should be overturned. Barrett said she understands ‘why it would be comforting to you to have an answer,’ but again refused to do so.
But she said the she would not bring her personal views to court and behave like a ‘royal queen.’
‘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 said.
Feinstein told her: ‘So on something that is really a major cause with major effects on over half of the population of this country – who are women, after all – it’s distressing not to get a straight answer.’
DEMOCRATS PRESS ON OBAMACARE
She refused to get pinned down on whether she would recuse herself from the Affordable Care Act case – even though President Trump has said repeatedly he wants to take down the law.
Democrats have made the alleged threat she represents to Obamacare the center of their strategy for the hearings, seeing her confirmation as inevitable but putting healthcare on the ballot as beneficial to them in November.
Asked if she would step aside from the case she said: ‘That’s not a question that I could answer in the abstract.’
She repeatedly tried to reassure Sen. Richard Durbin that she is not ‘hostile’ to the Affordable Care Act – although she acknowledged that in legal writings she has attacked the reasoning of a Supreme Court decision that upheld most of the law in 2012.
‘And I assure you that I am not. I am not hostile to the ACA I am not hostile to any statute that you pass,’ she said.
Texas Republican John Cornyn described the Democrats’ question as ‘ACB v. ACA.’
Oral arguments regarding the ACA will begin in November – after the election but two months before inauguration.
‘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.
They center on a Republican-led attempt to strike down the whole law on the grounds that the individual mandate is unconstitutional, which the Trump administration supports but which Democrats oppose.
Barrett was questioned about her past writings, including a piece in which she was critical of Chief Justice John Roberts’ previous rulings on the Obama-era law.
The appellate court judge distanced herself from those writings, saying they were not addressing specific aspects of the law which she may have to rule on if confirmed. The court is set to hear a challenge to the law Nov. 10.
Barrett told the senators, ‘I apply the law. I follow the law. You make the policy.’
Still, Barrett appeared stumped when grilled by Democratic Sen. Patrick Leahy of Virginia about particulars of the law, also called Obamacare. Barrett could not recite specifics, including that 23 million people are covered by the law or that more than 2 million people are on their parent´s health insurance.
DEMOCRATS PRESS ON ELECTION RULINGS
Nor would she commit to recusal should the Supreme Court take up a disputed case resulting from the presidential election. Trump handed Democrats the issue when he stated as a reason to fill the court vacancy in part to settle any election disputes on the election, after repeatedly attacking mail-in ballots.
‘I have had no conversations with the president or any of his staff on how I might rule on that case,’ she told Sen. Patrick Leahy (D-Vt.).
‘I can’t offer an opinion on recusal without short-circuiting that entire process,’ she said.
The Republican president has said he expects the Supreme Court to decide the election’s outcome as he faces Democratic challenger Joe Biden.
Barrett said no one at the White House sought a commitment from her on how she would rule on that or any issue.
‘It would be a gross violation of judicial independence for me to make any such commitment or for me to be asked about that case,’ Barrett told the committee of possible election cases.
Leahy connected Trump’s statements about getting a full court to rule on his election with the decision to ‘ram through’ Barrett’s nomination just weeks before Election Day.
All she would allow is that ‘I commit to you to fully and faithfully applying the law of recusal,’ and that she could ‘consider any appearance questions’ – meaning the appearance of a conflict of interest even if none actually existed.
Barrett made the most personal disclosure of her confirmation process on the second day of Senate hearings, after appearing masked and inscrutable for much of Monday as senators either defended her or cast her as a threat to abortion and health care rights.
Her remark seemed designed to assure a skeptical block of outvoted senators and the public that she would not use her powerful lifetime position to foist her religious views or conservative social beliefs on the nation.
On Tuesday, she spoke at length after Judiciary Committee Chairman Sen. Lindsey Graham tossed her a softball question, asking the appeals court judge: ‘How does it feel to be nominated for the Supreme Court of the United States?’
High-profile hearing: The confirmation is being held in the Senate’s largest hearing room to ensure social distancing
WILL CONEY BARRETT OVERTURN GAY MARRIAGE RULING?
Coney Barrett didn’t provide much more information on the landmark Obergefell v. Hodges case, which established a right to same sex marriage when she was asked about it.
It was the subject of a fiery dissent earlier this month by conservative justices Clarence Thomas and Samuel Alito, who said it should be overturned – suggesting that it could in fact be something the high court comes to rule on again.
Barrett was asked because Scalia – her mentor – firmly expressed the view that Obergefell was not constiutional.
But Barrett said that a challenge to the ruling would be about ‘substantive due process’ that was not explicitly spelled out in the Constitution, after explaining her philosophy as a textualist.
She said the Supreme Court has ‘grounded’ rights in the Constitution which ‘are not expressed,’ and that this included same-sex marriage.
But she explained there also was a ‘reliance interest’ in that there are ‘people in the United States who have ordered their affairs around it.’
Barrett explained that any effort by a state to try to take away the rights established by the ruling must go through a multi-phase process.
If [a state] outlawed same-sex marriage, there would have to be a case challenging it. And for the Supreme Court to take it up, you’d have to have lower courts going along and say, ‘We’re going to flout Obergefell,’ she said.
‘And the most likely result would be that lower courts, who are bound by Obergefell, would shut such a lawsuit down and it wouldn’t make its way up to the Supreme Court. But if it did, it would be the same process I’ve described,’ she said.
She also said ‘I do not discriminate on sexual preference,’ a use of language which was different from the more normal term sexual orientation.
‘I KNEW OUR FAMILY WOULD BE PICKED OVER’
Barrett responded with a lengthy answer where she defended her own decisions inlife, vowed not to impose her lifestyle on others – and said it was her belief in the ‘rule of law’ that drove her to accept the nomination – in a remark that hinted at the steep national divides that serve as the backdrop of her confirmation fight.
I have decided to pursue a career and have a large family. I have a multi-racial family. Our faith is important to us. All of those things are true, but they are my choices.
‘Well, senator, I’ve tried to be on a media blackout for the sake of my mental health, but, you know, you can’t keep yourself walled off from everything, Barrett began.
‘And I’m aware of a lot of the caricatures that are floating around, so I think what I would like to say in response to that question is that, look, I have made distinct choices.
‘I have decided to pursue a career and have a large family. I have a multi-racial family. Our faith is important to us.’
‘All of those things are true, but they are my choices and in my personal interactions with people. I mean, I have a life brimming with people who have made different choices and I have never tried in my personal life to impose my choices on them and the same is true professionally,’ said the judge and former law professor.
Her defense of her life choices comes after media outlets have scoured her background in the two weeks since Trump named her for the lifetime appointment. With Obamacare, abortion rights, and a potential Biden agenda on the line, some outlets have mined her biography for clues on whether she would follow the mold of her influence Justice Anthony Scalia and Justice Clarence Thomas.
Barrett brought her seven children, including two who were adopted from Haiti, to the White House for the event celebrating her nomination, effectively putting them on the public stage.
The practicing Catholic had her dean at Notre Dame law school testify on her behalf. Media outlets have also scrutinized her membership of People of Praise, a charismatic religious group. Other details only emerged through the questionnaire process – like her signing on to a newspaper ad blasting Roe. V. Wade that she did not initially disclose.
But as in earlier questioning with Graham – and like many justices before her – Barrett described herself as someone who was bound by precedent and the principle of stare decisis – not as a judge who is driving to strike down Obamacare on her first weeks on the job, or to rip away precedents like Roe v. Wade, even if her allies consider it to have been wrongly decided.
Barrett introduced her husband, children and siblings by pointing to each after Feinstein requested to share who they are with the room
Each of the 22 senators on the Senate Judiciary Committee has 30 minutes to interact and ask questions of Barrett on Tuesday. Pictured are Chairman Lindsey Graham (left) and Democratic Ranking Member Dianne Feinstein (right) speaking with masks on ahead of the second day of the hearing
‘I mean, I apply the law and, senator, I think I should say why I’m sitting in this seat in response to that question, too. Why I have agreed to be here because i don’t think it’s any secret to any of you or to the American people that this is a really difficult, some might say excruciating process and [husband] Jesse and I had a very brief amount of time to make a decision with momentous consequences for our family.
‘We knew that our lives would be combed over for any negative detail, with he knew that our faith would be caricatured. We knew our family would be attacked. We had to decide whether those difficulties would be worth it because what sane person would go through that if there wasn’t a benefit on the other side?
‘The benefit i think is that I’m committed to the rule of law and the role of the Supreme Court in dispensing equal justice for all and I’m not the only person who could do this job– but I was asked and it would be difficult for anyone, so why should I say someone else should do the difficulty if the difficulty is the only reason to say no, I should serve my country and my family is all in on that because they share my belief and the rule of law.’
Barrett spoke about her discussions with family about her high-profile nomination even as she began her second day of hearings seeking to shroud any indications about how she might rule on critical faces facing the nation.
She also revealed another detail of her background during Graham’s questioning about key court principles when he asked if she owned a gun.
‘Ah, we do own a gun,’ Barrett responded. Graham then moved on to other subjects.
‘YOU WON’T GET JUSTICE SCALIA, YOU’LL GET JUSTICE BARRETT’
Barrett embraced her classification as a ‘female Scalia’ on Tuesday as questioning of the Supreme Court nominee commenced on Day 2 of her confirmation hearing – but made sure to distinguish herself from the last Justice.
‘Justice [Antonin] Scalia was obviously a mentor,’ Barrett began of the Supreme Court Justice she clerked for, adding her previous claim that ‘his philosophy is mine too.’
‘He was a very eloquent defender of originalism, and that was also true of textualism’ she said.
‘But I want to be careful to say that if I’m confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett,’ she distinguished. ‘And that’s so because originalists don’t always agree and neither do textualists.’
Barrett arrived with her family in tow for the second day of her confirmation hearing Tuesday morning as she prepares to field questions from all 22 members of the Senate Judiciary Committee – each receiving 30 minutes.
Like Monday, pro-abortion and anti-Trump protesters and healthcare activists immediately gathered outside on Capitol Hill to express their opposition to Barrett’s nomination.
Barrett would not say if she believed the court could overturn Roe v. Wade in the future
Like the first day of the hearing Monday, demonstrators immediately gathered outside on Capitol Hill to protest Barrett’s nomination
The demonstrators were met by pro-life and pro-Trump protesters holding signs with images of Barrett reading ‘Hope’.
Chairman Lindsey Graham started the day off asking Barrett to explain her ‘originalist’ views in plain English.
‘I interpret the Constitution as a law,’ she detailed. ‘I understand it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy view into it.’
Graham, a Republican Senator from South Carolina, kicked off the day by telling Barrett she could relax and remove her white face cover and then launched a monologue claiming he wanted to distinguish between politics and judgeships.
He railed against the Affordable Care Act, which Democrats spent the majority of their time during Monday’s opening remarks claiming was at risk if Barrett were confirmed.
Six of Barrett’s seven children and her husband sat in a row over her right shoulder and White House Counsel Pat Cipollone sat behind her to the left.
Barrett’s youngest child, who has Down Syndrome, remained at home for the hearings – but she assured he was watching her on TV.
The row behind her children and husband were seated all six of Barrett’s siblings.
On Monday, all members of the committee, along with Barrett, made their opening statements.
Democrats argued against Barrett’s nomination, claiming it’s a political move made just weeks before the 2020 election by President Donald Trump to strike down the Affordable Care Act at the Supreme Court level.
They also claim her religion could get in the way of her being a ‘fair’ Justice, and say her devout Catholic beliefs would lead to the dismantling of abortion rights with a 6-3 conservative Supreme Court likely to overturn Roe v. Wade.
Republicans, on the other hand, said Democrats are playing politics and making a judgeship into a campaign issue. The GOP is also accusing the opposition party of creating a religious test for Barrett, which they lament is against the Constitution.