Barrett Confirms Principled Stand on Law

News: Campaign 2020US News
by Christine Niles  •  •  October 13, 2020   

Senators avoid questions on Barrett's faith

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WASHINGTON ( - The second morning of confirmation hearings for Judge Amy Coney Barrett saw questions on abortion, LGBT rights and Obamacare, while Democrat senators were careful to avoid questions touching on the Catholic judge's faith.


Judge Barrett holds up a blank pad after

Sen. John Cornyn (R-TX) asks to see her note

Senate Republican Lindsey Graham, chairman of the Senate Judiciary Committee, kicked off questioning on a wide range of topics before giving Barrett a chance to respond to media reaction to her nomination.

"I've tried to be on a media blackout for the sake of my mental health," said Barrett. "I'm aware of a lot of the caricatures that are floating around."

"Look, I've made distinct choices," she explained. "I've 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 have a life brimming with people who've made different choices," she continued, "and I've never tried in my personal life to impose my choices on them, and the same is true professionally. I apply the law."

We knew that our faith would be caricatured; we knew that our family would be attacked.

Explaining why she decided to accept the nomination to the High Court, she said: "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 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; we knew that our faith would be caricatured; we knew that our family would be attacked," she said. "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," she clarified.

Abortion, Gay Marriage

Justice Antonin Scalia

California's Sen. Dianne Feinstein — who came under fire in 2017 when she told Barrett that "the dogma lives loudly within you" — went straight to the abortion issue, quoting Barrett's mentor, the late Justice Antonin Scalia, in his dissent in Planned Parenthood v. Casey (1992): "We believe that Roe was wrongly decided and that it can and should be overruled, consistent with our traditional approach to stare decisis and constitutional cases.

"Do you agree with Justice Scalia's view that Roe was wrongly decided?" Feinstein asked.

Invoking Elena Kagan during her Supreme Court confirmation hearings, in which Kagan said she was not going to "grade precedent or give it a thumbs up or a thumbs down," Barrett answered, "I think in an area where precedent continues to be pressed and litigated, as is true of Casey, it would actually be wrong and a violation of the canons for me to do that as a sitting judge."

"So if I express a view on a precedent one way or another, whether I say I love it or I hate it," she explained, "it signals to litigants that I might tilt one way or another in a pending case."

Dissatisfied with the response, Feinstein pressed again: "On something that is really a major cause with major effect on over half of the population of this country, who are women, after all, it's distressing not to get a straight answer. So let me try again. Do you believe with Justice Scalia's view that Roe was wrongly decided?"

"Senator, I completely understand why you are asking the question," said Barrett. "But again, I can't precommit or say, yes, I'm going in with some agenda, because I'm not. I don't have any agenda. I have no agenda to overrule Casey. I have an agenda to stick to the rule of law and decide cases as they come."

Trying a third time, Feinstein asked, "Do you agree with Justice Scalia's view can and should be overturned by the Supreme Court?

"I think my answer is the same, because that's a case that's litigated," Barrett said. "Its contours could come up again, in fact, do come up; they came up last term before the Court."

I don't have any agenda.

"I think what the Casey standard is, that's just a contentious issue, which is, I know, one reason why it would be comforting to you to have an answer," she added, "but I can't express views on cases or precommit to approaching a case any particular way."

Similar questions by other senators seeking Barrett's opinion on specific cases, whether NFIB v. Sebelius (2012) — the case upholding the Affordable Care Act (ACA) — or Obergefell v. Hodges (2015) — the case legalizing same-sex marriage in all 50 states — received similar responses from Barrett, who cited the canons of judicial conduct to explain that expressing her personal or professional opinion on such cases would be inappropriate.

"Obergefell clearly says that there is a constitutional right to same-sex marriage," Barrett said in response to Vermont Democrat Patrick Leahy's questioning. "For the reasons I've already said, I'm not going to — as Justice Kagan said — give a thumbs up or a thumbs down on any Supreme Court precedent."

Republican Texan Sen. Ted Cruz reminded his colleagues that Barrett's responses are the same given by all Supreme Court nominees before the Senate panel: "It is mandated by the judicial canon of ethics. That has been the answer that has been given to this committee for decades."

While Democrats focused almost exclusively on the ACA in Monday's proceedings, their attempts to question Barrett on Tuesday fell flat, Barrett explaining that the issue they are raising the alarm about — the potential overruling of Obamacare — is not on the docket.

"[T]he issue in this case is the doctrine of severability," she clarified in reference to a case scheduled to be heard before the High Court bench on Nov. 10, "and that's not something I've ever talked about with respect to the ACA."

Not the Law of Amy

Throughout the morning's questioning, Barrett reiterated her principled stand that, as an originalist, she does not believe judges should impose their personal preferences but instead follow and apply the law as written.

"It's not the law of Amy, it's the law of the American people," she said to Republican Sen. Mike Lee. Elsewhere, she remarked that she is not "queen of the world" with the power to impose her will as she pleases.

Asked by Senate Judiciary Chairman Lindsey Graham how she would respond "if people said you're a female Scalia," Barrett said, "He was obviously a mentor. His philosophy was mine, too. He was a very eloquent defender of originalism."

"If I'm confirmed," she clarified, "you would not be getting Justice Scalia; you would be getting Justice Barrett. Originalists don't always agree, and neither do textualists." She raised the example of Scalia and Justice Clarence Thomas, who did not always see eye to eye on a number of issues.

During Texas Republican John Cornyn's questioning, she affirmed that she is not "queen of the world" — "I just don't have the power by fiat to choose my preferences. ... [N]obody wants to live in accord with the law of Amy. I'm sure even my children don't want that."

I just don't have the power by fiat to choose my preferences.

A poignant moment came when Illinois Democrat Dick Durbin (slammed in 2017 when he asked her what it means to be an "orthodox Catholic") asked Barrett whether she saw the video of George Floyd, and what her reaction was.

"Given that I have two black children, that was very, very personal for my family," she said. "Jesse was with the boys on a camping trip out in South Dakota, so I was there, and 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 in my room."

"My children to this point in their lives have had the benefit of growing up in a cocoon where they have not experienced hatred or violence," she said.

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