WASHINGTON — On her first day of questioning by the Senate Judiciary Committee, Supreme Court nominee Amy Coney Barrett gave little sense of how she would rule on crucial cases if she is confirmed to the high court. In doing so, she stuck to the time-honored stance of studied reticence, which has been deployed by progressive and conservative nominees alike.
That leaves many questions about how Barrett would rule on a number of issues, from a potentially contested presidential election to the future of the Affordable Care Act. Senate Democrats contend that Barrett, who is favored by conservative groups like the Federalist Society, will back President Trump on those and other issues, such as gun rights and corporate power.
Barrett, who in 2017 was confirmed to a federal appellate court, promised she would be guided by the U.S. Constitution and would not consider the policy outcomes of her opinions, profoundly consequential as those opinions may be. The fate of the Affordable Care Act will come before the Supreme Court on Nov. 10, in a case known as Texas v. California.
“I interpret the Constitution as a law,” Barrett said at one point, adding that it was not her place as judge to “update it or infuse my own policy views” into the foundational document. That is the role, she has said and written, of legislators.
Democrats tried to push Barrett into disclosing her stances on several key issues. She returned those volleys with assurances about respecting precedent and fealty to the Constitution.
On the question of Roe v. Wade, the 1973 ruling that legalized abortion, Barrett would not say whether she agreed with her mentor, the late Justice Antonin Scalia, that the decision was “plainly wrong.” Barrett said that she could not “pre-commit” to how she would rule in an abortion-related case.
“I don’t have any agenda” on the matter, she said, despite having voiced anti-abortion views in the past. She later did say the case was not “super-precedent,” an opinion that instantly alarmed progressives because it seemed to suggest she did not hold the decision as above being overturned.
She was similarly guarded about her view on whether Trump had the authority to delay the presidential election. “I don’t think we want judges to be legal pundits,” she answered.
Barrett also said she was “not hostile” to the Affordable Care Act, although in 2017 she wrote a book review that criticized Chief Justice John Roberts for overstepping his authority in a decision that upheld a key provision of the law.
Like many Republican-nominated judges, Barrett invoked the so-called Ginsburg rule, a reference to Ruth Bader Ginsburg, the Supreme Court justice who died last month and whose seat Barrett will take if she is confirmed. It has been used as an all-purpose justification for refusing to answer questions about a nominee’s views on issues that might be the subject of future Supreme Court cases. But it is a distortion of Ginsburg’s assertions about judicial comportment during her confirmation hearings in 1993, when she did answer questions on a number of contentious issues. Invoking the rule forecloses any possibility of a discussion of significant issues during confirmation hearings.
“I can’t express a view on precedent or on how I would decide any question that was provoked by the application of that precedent to a later case,” Barrett told Sen. Amy Klobuchar, D-Minn., who asked the nominee about a gerrymandering case in Arizona. Barrett said she was “constrained” by Ginsburg’s position on precedent. She similarly failed to answer a question about voter intimidation, leading Klobuchar to remind Barrett that intimidating voters is unambiguously illegal.
Frustrated with Barrett’s circumspect answers, Democrats took to describing what they confidently thought her views to be. In a protracted monologue on the influence of conservative “dark money” groups, Sen. Sheldon Whitehouse, D-R.I., argued that Barrett and other Trump judicial nominees were puppets of those moneyed interests.
“Something is not right around the court. And dark money has a lot to do with it. Special interests have a lot to do with it,” Whitehouse said. He made clear that, despite her assertions of judicial independence, he believed Barrett would do those special interests’ bidding.
Barrett sat tight-lipped as he spoke, betraying little.
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