Barrett vows to enter court free of agenda

Nominee faces questions on health law, election cases

Supreme Court nominee Amy Coney Barrett testifies in the second day of her Senate Judiciary Committee hearing on Tuesday, Oct. 13, 2020. MUST CREDIT: Washington Post photo by Demetrius Freeman
Supreme Court nominee Amy Coney Barrett testifies in the second day of her Senate Judiciary Committee hearing on Tuesday, Oct. 13, 2020. MUST CREDIT: Washington Post photo by Demetrius Freeman

WASHINGTON -- Supreme Court nominee Amy Coney Barrett on Tuesday disputed assertions by Democrats that she would be a reliable vote to restrict health care access and abortion rights, pledging during the second day of her confirmation hearing that she has no policy agenda.

"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 their will on the world," Barrett told the Senate Judiciary Committee.

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"It's not the law of Amy," she said. "It's the law of the American people."

Pressed by panel Democrats, she skipped past questions about ensuring the date of the election or preventing voter intimidation, both set in federal law, and the peaceful transfer of presidential power. She declined to commit to recusing herself from any postelection cases without first consulting the other justices.

"I can't offer an opinion on recusal without short-circuiting that entire process," she said.

On the issue of the peaceful transfer of power, Barrett told Sen. Cory Booker, D-N.J., that "One of the beauties of America from the beginning of the republic is that we have had peaceful transfers of power and that disappointed voters have accepted the new leaders that come into office, and that's not true in every country, and I think it is part of the genius of our Constitution."

President Donald Trump's third nominee to the Supreme Court declined to answer about any possible post-election cases, saying she would not be "used as a pawn to decide the election for the American people."

In one of the lighter moments in the hearing, Sen. John Cornyn, R-Texas, asked Barrett what notes she was referring to during the hearing, and she held up a blank pad of paper, apparently showing she had been fielding questions without aid.

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.

On the Patient Protection and Affordable Care Act, whose constitutionality will go before the Supreme Court in oral arguments 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 will succeed the late Justice Ruth Bader Ginsburg if confirmed, testified that judges should not be swayed by their personal views on policy.

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Health care 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 Affordable Care Act, Barrett said under questioning from Sen. Charles Grassley, R-Iowa. "And if I had been, that would have been a short conversation."

HEALTH CARE, ABORTION

But her legal critiques of opinions upholding the law have been well publicized. One piece of writing that has gotten a close look is a 2017 essay that Barrett wrote for a Notre Dame Law School journal in which she argued that Chief Justice John Roberts, 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. 7th Circuit Court of Appeals -- disagreed with the assertion that her writings amounted to an attack on Roberts, who will be among a small circle of colleagues for Barrett if she is confirmed by the Republican-controlled Senate in the 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."

Democrats repeatedly questioned Barrett about her views on abortion rights. She said 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.

Justices Neil Gorsuch and Brett 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. 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.

Sen. Dianne Feinstein, the top Democrat on the panel, all but implored the nominee to be more specific about how she would handle landmark abortion cases, including Roe v. Wade and the follow-up Pennsylvania case Planned Parenthood v. Casey, which confirmed it in large part.

"It's distressing not to get a good answer," Feinstein told the judge.

Barrett was unmoved. "I don't have an agenda to try to overrule Casey," she said. "I have an agenda to stick to the rule of law and decide cases as they come."

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."

OTHER ISSUES

Sen. Lindsey Graham, R-S.C., the committee's chairman, asked Barrett whether she can set aside her religious beliefs to fairly decide legal cases.

"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 was wrongly decided.

"If I'm confirmed, you would not be getting Justice Scalia," Barrett said. "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, an answer that drew criticism from Senate Minority Leader Charles Schumer, D-N.Y., who said Barrett needs to recuse herself from any election-related cases. Barrett also declined to say whether voter intimidation is unconstitutional.

"Her refusal to stand up to the president on this obvious legal question is alarming," Schumer, who is not on the committee, said, adding that her response "indicates that she is more interested in pleasing President Trump than she would be in stopping his illegal behavior."

In repeated instances, Democrats attempted to tie Barrett to the president who nominated her and the decisions he wants the Supreme Court to make.

A 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."

SECOND AMENDMENT

Her views on the Second Amendment also came under scrutiny by Democrats on Tuesday, 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 rights to possess firearms.

Sen. Dick 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," adding that the voting rights of felons were not at issue in the case. Barrett also said her family owns a gun but that she could objectively rule on Second Amendment cases.

PERSONAL MOMENTS

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 death at the hands of a police officer sparked a nationwide uprising over racial justice.

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 -- Patrick Leahy, D-Vt., and Kamala Harris, D-Calif. -- continued to appear remotely because of the virus. Two senators on the committee who were diagnosed with covid-19 earlier this month -- Sens. 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.

Barring a dramatic development, Republicans appear to have the votes to confirm Barrett to a lifetime seat on the Supreme Court, and they spent their time portraying her as a thoughtful judge with impeccable credentials.

Underscoring the Republicans' confidence, Graham set an initial committee vote on the nomination for Thursday, the last day of hearings, which would allow final approval by the full Senate by the end of the month.

He said: "I will do everything I can to make sure that you have a seat at the table. And that table is the Supreme Court."

Information for this article was contributed by Seung Min Kim and Ann E. Marimow of The Washington Post; and by Lisa Mascaro, Mark Sherman, Laurie Kellman, Mary Clare Jalonick, Matthew Daly, Jessica Gresko and Elana Schor of The Associated Press.

Senate Judiciary Chairman Lindsey Graham, R-SC., questions Supreme Court nominee Amy Coney Barrett in the second day of her Senate Judiciary Committee hearing on Tuesday, Oct. 13, 2020. MUST CREDIT: Washington Post photo by Demetrius Freeman
Senate Judiciary Chairman Lindsey Graham, R-SC., questions Supreme Court nominee Amy Coney Barrett in the second day of her Senate Judiciary Committee hearing on Tuesday, Oct. 13, 2020. MUST CREDIT: Washington Post photo by Demetrius Freeman
Sen. Mike Lee, R-Utah, recently diagnosed with the novel coronavirus, asks Judge Amy Coney Barrett a question in the second day of her Senate Judiciary Committee hearing on Tuesday, Oct. 13, 2020. MUST CREDIT: Washington Post photo by Demetrius Freeman
Sen. Mike Lee, R-Utah, recently diagnosed with the novel coronavirus, asks Judge Amy Coney Barrett a question in the second day of her Senate Judiciary Committee hearing on Tuesday, Oct. 13, 2020. MUST CREDIT: Washington Post photo by Demetrius Freeman

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