WASHINGTON – Democrats warned Wednesday that Supreme Court nominee Amy Coney Barrett's almost certain confirmation could launch a new chapter of conservative judicial activism, though the federal appeals court judge sought to portray herself as a mainstream jurist without any agenda.
As the Senate Judiciary Committee hearing drew toward a close Wednesday, several Democrats acknowledged Barrett would be confirmed to succeed the late liberal Associate Justice Ruth Bader Ginsburg, most likely by a party-line vote before Election Day.
"It seems that the fix is in," Sen. Cory Booker, D-N.J., said.
That would be in time to hear the latest legal challenge to the Affordable Care Act, which Democrats used as their leading argument against Barrett, 48, of Indiana. The Trump administration and states governed by Republicans seek to topple the law after Congress eliminated its tax penalty for those who lack insurance.
"They are bringing this case to the court, and you are going to be sitting on the court," said Sen. Amy Klobuchar, D-Minn.
“Your confirmation may launch a new chapter of conservative judicial activism," said Sen. Chris Coons, D-Del. "It could touch virtually every aspect of modern American life.”
Barrett, a popular Notre Dame Law School professor and prolific scholar, sailed through another day of questioning with the same blank notepad before her. With the help of Republicans on the panel, she tried to allay fears that she might upend settled law on issues ranging from health care and abortion to gun control and voting rights.
After Sen. Sheldon Whitehouse, D-R.I., walked her through what he described as the Supreme Court's six-year campaign to crimp the power of public employee unions, she said, “I think that judges should not have projects, and they should not have campaigns. They should decide cases.”
Sen. Lindsey Graham, R-S.C., the committee chairman, opened the day by trying to show that Barrett is unlikely to favor overturning the Affordable Care Act. He and others elicited responses from her indicating that a Supreme Court showdown Nov. 10 over the law may erase the mandate that people buy insurance but not the rest of the law.
Severing an unconstitutional provision rather than striking down the law itself “serves a valuable function of trying not to undo your work,” Barrett told Sen. Dianne Feinstein, D-Calif., the ranking Democrat on the panel.
Graham asked leading questions about issues dear to Democrats, including preserving Roe v. Wade's abortion right and the high court ruling allowing same-sex marriage in 2015. If those precedents came back to the court, he said, Barrett would take into account the degree to which Americans rely on the Supreme Court's earlier judgment.
"I hope it's OK that you can be pro-life and adhere to your faith and still be considered by your fellow citizens worthy of this job," Graham said at the end of the day.
That still left plenty to argue about. Sen. Dick Durbin, D-Ill., suggested that Barrett rates gun rights as more important than voting rights, based on her appeals court dissent favoring a nonviolent felon's right to gun ownership. In many states, felons cannot vote or face restrictions on that right.
“I have never denigrated the right to vote,” Barrett said, accusing Durbin of distorting her record. “I think voting is a fundamental right.”
But when Democratic vice presidential nominee Kamala Harris, a committee member, asked Barrett to comment on the Supreme Court's 2013 ruling that weakened the Voting Rights Act or its ruling in April blocking expanded mail balloting in Wisconsin during the COVID-19 pandemic, she refused.
"These are very charged issues," Barrett said. "They have been litigated in the courts. And so I will not engage on that question."
Democrats had only limited success with an age-old tactic: seeking to put the nominee on record in favor of established rights and prior rulings. She endorsed the high court's decisions on school integration and interracial marriage but would not say the same about the right to birth control, gay and lesbian privacy rights or same-sex marriage.
"You are pushing me to try to violate the judicial canons to offer advisory opinions, and I won't do that," Barrett told Sen. Richard Blumenthal, D-Conn.
"I think a lot of Americans will be scared by the idea that people who want to simply marry or have a relationship with the person they love could find it criminalized, could find marriage equality cut back," Blumenthal responded.
The Democrats' tactics prompted Sen. Marsha Blackburn, R-Tenn., to complain that they "have really tried to paint you as a monster with an agenda" and "verbally pound you into submission." But in reality, Democrats went easier on Barrett than they did on Trump's two prior nominees, Associate Justices Neil Gorsuch and Brett Kavanaugh.
As the day wore on, Democrats and Republicans used their time to expound on various pet peeves, ranging from judicial ethics and transparency to expanding the size of the court.
Noting senators' propensity for giving speeches, Graham quipped, "I want to thank Judge Barrett for not interrupting us during your hearing."
Barrett, the customarily composed mother of seven, admitted indulging in a glass of wine after 12 hours answering questions Tuesday.
"I'll tell you that I needed that at the end of the day,” she said.
Contributing: Nicholas Wu and Christal Hayes
This article originally appeared on USA TODAY: Democrats warn Amy Coney Barrett will usher in 'conservative activism'