During day three of her confirmation hearings, Supreme Court nominee Amy Coney Barrett was asked by Sen. Dianne Feinstein about her statement on Justice Antonin Scalia’s philosophy with regard to the Voting Rights Act.
DIANNE FEINSTEIN: After President Trump announced your nomination to the Supreme Court, you discussed the judicial philosophy of the late justice Antonin Scalia. Specifically, you stated, his judicial philosophy is mine. During oral arguments, in the 2013 case Shelby County v. Holder, Justice Scalia questioned the strong congressional support for reenactment of the Voting Rights Act. He argued that this support was not attributable to the fact that we need the Voting Rights Act. Rather, he stated that he believed Congress reenacted the bill due to a, quote, "phenomenon that's called perpetuation of racial entitlement," end quote. What is your history-- your reading of this and your understanding of the history of the Voting Rights Act?
AMY CONEY BARRETT: Well, when I said that Justice Scalia's philosophy is mine too, I certainly didn't mean to say that every sentence that came out of Justice Scalia's mouth or every sentence that he wrote is one that I would agree with. When I said Justice Scalia's philosophy is mine too, what I meant is that his jurisprudential approach to text, as we've talked about originalism and textualism, is the same that I would take. And I think, as for the Voting Rights Act, I think that it was obviously a triumph in the Civil Rights Movement.
DIANNE FEINSTEIN: Well, the question arises, in my mind. Of course, my view is that we always need this. This is a bulwark of our democracy. So need, I think, is something that may be somewhat subjective. Do you agree with that?
AMY CONEY BARRETT: That need is subjective?
DIANNE FEINSTEIN: Yes, that I think we do need a Voting Rights Act, and it's subjective in that sense.
AMY CONEY BARRETT: Um, well, I think, Senator Feinstein, the question of how the coverage formula is calculated in the Voting Rights Act and the contours of the Voting Rights Act and whether Shelby County was rightly decided or not are all questions on which I can't give an answer because Shelby County has obviously been controversial. It's likely to be relitigated. It could come up before me on the court.
DIANNE FEINSTEIN: Um, well, let me give you a-- because I think this is really important because it shows the basic philosophical bent of an individual. For me, the Voting Rights Act is extremely important, and it defines our election system, to a great extent. It's hard for me to understand that anyone would want to do away with it. What is your position in that regard?
AMY CONEY BARRETT: As I understand Shelby County, it said that the coverage formula was outdated from the 1960s for subjecting particular states, requiring them to get preclearance. It's my understanding, and I haven't looked at the case in a while, that everything else about the Voting Rights Act remained intact, including its prohibitions on discrimination in elections. It was just the coverage formula, which decided which states were subject to preclearance.
DIANNE FEINSTEIN: Well, let me ask you this question, and this is a hard one. Do you agree with Justice Scalia's assertion that the Voting Rights Act is a, quote, "perpetuation of racial entitlement, end quote.
AMY CONEY BARRETT: Well, Senator Feinstein, I can't-- I don't, obviously, know what Justice Scalia was thinking when he said that. And any characterization of the Voting Rights Act or a statement like that is simply really not something I can opine on because, you know, that's tied in, I would think, with these Shelby County questions.
DIANNE FEINSTEIN: Well, can you opine-- I'm not asking for a formal opinion. But would you believe that it's a perpetuation of racial entitlement?
AMY CONEY BARRETT: Well, Senator Feinstein, I think that goes to the question of whether the coverage formula was outdated and needed to be updated from the 1960s or not. I take that to be the thrust of the disagreement in Shelby County and the position that Justice Scalia was taking. So again, I can't express a view on Shelby County and whether the majority or dissent had the better of the argument.