President Trump’s third nominee to the Supreme Court declined to answer some questions that seemed steeped in basic facts, such as whether a president has the power under the Constitution to unilaterally delay an election. Barrett also declined to say whether she would recuse herself from a potential 2020 election case as Senate Democrats demanded, saying she would not be “used as a pawn to decide the election for the American people.”
Like high court nominees who preceded her, Barrett repeatedly avoided weighing in on her personal views of landmark decisions and declined to say whether she endorsed opinions from her mentor, former Justice Antonin Scalia, on abortion and same-sex marriage. At the same time, under hours of questioning from members of the Senate Judiciary Committee, she reinforced perceptions that she would help solidify a 6-to-3 conservative majority on the Supreme Court.
On the Affordable Care Act, whose constitutionality will come before the Supreme Court in oral arguments on Nov. 10, Barrett on multiple occasions said she was not “hostile” to the 2010 law that has been the core of the Democratic Party’s argument against her confirmation.
“I am not here on a mission to destroy the Affordable Care Act,” Barrett said under questioning from Democrats who tried to shed light on how she may rule on California v. Texas, a case brought by nearly 20 Republican attorneys general and backed by the Trump administration that challenges the constitutionality of former president Barack Obama’s signature health-care law.
Barrett, who would succeed the late Justice Ruth Bader Ginsburg if confirmed, testified that judges should not be swayed by their personal views on policy.
“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, you know, their will on the world,” Barrett told the committee.
Health care — from the ACA to abortion — permeated much of the Democratic questioning of Barrett, prompting Republicans to ensure that the judge declared on the record that she has never spoken about potential outcomes of cases with Trump or other White House officials.
“I was never asked” about the ACA, Barrett said under questioning from Sen. Charles E. Grassley (R-Iowa). “And if I had been, that would have been a short conversation.”
But her legal critiques of opinions upholding the ACA have been well-publicized. One piece of writing that has gotten a close look is a 2017 essay that Barrett penned for a Notre Dame Law School journal in which she argued that Chief Justice John G. Roberts Jr., who wrote the majority opinion when the Supreme Court upheld the constitutionality of the health-care law in 2012, “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
In the hearing, Barrett — who serves as a judge on the U.S. Court of Appeals for the 7th Circuit — disagreed with the assertion that her writings amounted to an attack on Roberts, who would be among a small circle of colleagues for Barrett if she is confirmed as expected by the Republican-controlled Senate in coming weeks.
“For those to be fighting words, I think you would have to assume that my critique of the reasoning reflects a hostility to the act that would cause me to approach a case involving the ACA with hostility and looking for a way to take it down,” Barrett said. “I can promise you that that is not my view.”
Barrett also disclosed that she participated in a moot court mimicking California v. Texas — the Affordable Care Act case that is before the Supreme Court next month. In the mock arguments, meant primarily as an educational exercise, Barrett said she voted to say the health-care law’s requirement that every person carry health insurance was unconstitutional but that it could be severed from the rest of the Affordable Care Act, which would effectively leave the rest of the law intact.
The law’s so-called individual mandate was zeroed out by the GOP tax law in 2017. Under questioning from Sen. Mike Crapo (R-Ind.), however, Barrett stressed that where she landed in the exercise did not necessarily reflect how she would rule on the Supreme Court.
Among the Democrats who pressed Barrett on health care was Sen. Kamala D. Harris (Calif.), the party’s vice-presidential nominee who mostly reiterated earlier questions about the judge’s views on the ACA. Refraining from taking an aggressive, prosecutorial tone that had become her trademark in Senate hearings, Harris asked Barrett whether, before she was nominated by the president, she had seen Trump’s statements about his preference for jurists who oppose the health-care law.
Barrett said she didn’t recall seeing them and added: “I hope the committee would trust in my integrity.”
Democrats also repeatedly questioned Barrett about her views on abortion rights. She appeared to espouse a more conservative perspective than that of Trump’s other Supreme Court nominees, saying that Roe v. Wade was not in a small category of “super precedents” because there are still legal challenges and disagreements about the 1973 decision.
Her predecessors, Justices Neil M. Gorsuch and Brett M. Kavanaugh, have co-authored a book titled “The Law of Judicial Precedent” that says Roe has been called a “super precedent” because it has survived dozens of attempts to overturn it and it has been used to underpin Supreme Court decisions that protected gay rights and the right to die, according to a copy of the book.
“Roe is not a super precedent because calls for its overruling have never ceased,” Barrett said. “But that doesn’t mean that Roe should be overruled.”
As with the Affordable Care Act, Barrett said she has no specific motive to strike down key abortion decisions, despite her personal beliefs. She declined to say whether Roe was wrongly decided, saying it would be “wrong” for her to weigh in on matters that are entangled in active litigation.
“I have no agenda to try to overrule Casey,” Barrett later said, referring to the 1992 Planned Parenthood v. Casey decision that affirmed the basic constitutional right to an abortion laid out in Roe. “I have an agenda to stick to the rule of law and decide cases as they come.”
Her personal views on abortion have been well-documented. Barrett was a member of Faculty for Life at the University of Notre Dame and signed her name to a newspaper advertisement in the South Bend Tribune that denounced the “barbaric legacy” of Roe v. Wade. Of the 2006 ad, Barrett said Tuesday that “it simply said we support the right to life from conception to natural death” and that it was a perspective “consistent with the views of my church.”
On rights not explicitly laid out in the Constitution, such as the right to privacy that has grounded landmark decisions such as Roe and Griswold v. Connecticut, a case on contraceptives, Barrett said “there’s certainly a debate about how to define these rights and how far it should go.”
Barrett was given a preemptive opportunity to declare that her Catholic faith would not play any role in her judicial decision-making, even as Democrats continued to avoid the issue of her religious beliefs after questioning her about them in her 2017 confirmation hearing for the federal appeals court.
Sen. Lindsey O. Graham (R-S.C.), the committee’s chairman, asked Barrett whether she can set aside her religious beliefs to fairly decide legal cases, and she responded in the affirmative.
“I can. I have done that in my time on the 7th Circuit,” Barrett told Graham. “If I stay on the 7th Circuit, I’ll continue to do that. If I’m confirmed to the Supreme Court, I will do that.”
Although she has adopted the judicial philosophy of Scalia, for whom she clerked, Barrett took pains to distinguish herself. Barrett declined to say whether she agreed with Scalia’s dissent in the 2015 decision that legalized same-sex marriage or whether she, too, believed Roe v. Wade was wrongly decided.
“If I’m confirmed, you would not be getting Justice Scalia,” Barrett said in the confirmation hearing’s first full day of questioning. “You would be getting Justice Barrett.”
She did signal in her testimony that she believed challenges to Obergefell v. Hodges, the decision on same-sex marriage, would probably never reach the Supreme Court.
When asked whether Trump had the power to delay an election, Barrett said she would have to consult colleagues and listen to arguments on both sides — a non-answer that drew criticism from Senate Minority Leader Charles E. Schumer (D-N.Y.), who said Barrett needs to recuse herself from any election-related cases.
“Her refusal to stand up to the president on this obvious legal question is alarming,” Schumer said, adding that her response “indicates that she is more interested in pleasing President Trump than she would be in stopping his illegal behavior.”
Barrett also declined to say later whether voter intimidation is unconstitutional, and she declined to commit to recusing herself from election-related cases.
“I do assure you of my integrity, and I do assure you that I would take that question very seriously,” Barrett said.
In repeated instances, Democrats attempted to tie Barrett to the president who nominated her and who is never subtle about the decisions he wants the Supreme Court to make. When he was a candidate in 2016, Trump promised to nominate Supreme Court nominees who would nullify Roe v. Wade and more recently has explicitly declared his desire to have a full complement of nine justices to hear any election-related disputes.
One day after he announced Barrett as his pick, Trump tweeted that the Affordable Care Act would be replaced with a “MUCH better, and FAR cheaper, alternative” if the Supreme Court struck it down.
“I can’t really speak to what the president has said on Twitter,” Barrett said under questioning from Sen. Amy Klobuchar (D-Minn.). “He hasn’t said any of that to me.”
Her conservative views on the Second Amendment — which go beyond Scalia’s perspective — also came under scrutiny Tuesday by Democrats, who pressed Barrett about her dissent in a gun-rights case that she has cited as among her most important legal opinions.
In Kanter v. Barr, Barrett wrote that the Constitution did not give the government the power to ban all felons from owning guns; rather, only those deemed dangerous should lose their right to possess firearms.
Sen. Richard J. Durbin (D-Ill.) argued that Barrett’s approach ignored studies that show higher recidivism rates among those convicted of even nonviolent felonies and that courts are not equipped to predict which nonviolent felons pose a risk and which do not. Durbin contrasted Barrett’s suggestion to the notion that the government may take away certain civic rights, such as voting.
“The conclusion of this is hard to swallow — the notion that Kanter should not be slowed down to buy a firearm” but that “when it comes to taking away a person’s right to vote, that’s a civic duty,” Durbin said, referring to the plaintiff in the case.
In response, Barrett said, “I expressed no view on whether that was a good idea” and said that the voting rights of felons were not at issue in the case. Barrett also said that her family owns a gun but that she could objectively rule on Second Amendment cases.
At some moments, Barrett’s testimony was intertwined with revelations about her personal life, including a time when Barrett said she and her 17-year-old daughter, Vivian, wept together after viewing the video of George Floyd, the Minneapolis man whose police killing sparked nationwide protests over racial injustice.
Vivian is one of two children whom Barrett and her husband, Jesse, adopted from Haiti. Up to that point, the Barrett children had “had the benefit of growing up in a cocoon where they had not experienced yet hatred or violence.”
“I think it is an entirely uncontroversial and obvious statement, given as we talked about the George Floyd video, that racism persists in our country,” Barrett said. But she declined to wade further into the issue of systemic racism in society, saying that “giving broader statements or making broader diagnoses about the problem of racism is kind of beyond what I’m capable of doing as a judge.”
Barrett said she also has tried to be on a “media blackout” since her nomination but that she was aware of “caricatures” that have surfaced about her, her family and her Catholic faith.
The specter of the coronavirus pandemic was unavoidable, as two senators — Harris and Sen. Patrick J. Leahy (D-Vt.) — continued to appear remotely. Two senators on the committee who were diagnosed with covid-19 this month — Mike Lee (R-Utah) and Thom Tillis (R-N.C.) — have both disclosed letters from their doctors saying they are cleared to resume in-person activities.
Barrett got an unintended break from talking with a handful of senators, including Ted Cruz (R-Tex.) and Sheldon Whitehouse (D-R.I.), who used their time to deliver speeches on their own policy preferences rather than questioning the nominee.
Derek Hawkins, Rachael Bade and Karoun Demirjian contributed to this report.