Senators Question Barrett on Her Views and Qualifications


Judge Amy Coney Barrett arriving in the Capitol on Tuesday.
Credit…Anna Moneymaker for The New York Times

As questioning got underway, Judge Barrett described her judicial philosophy, calling herself a strict textualist and originalist in the tradition of her mentor, the late Justice Antonin Scalia.

“In English, that means I interpret the Constitution as a law,” said Judge Barrett. “The text is text, and I understand it to have the meaning that it had at the time people ratified it. It does not change over time, and it is not up to me to update it or infuse my own views into it.”

Asked by Senator Lindsey Graham, Republican of South Carolina and the Judiciary Committee chairman, if it would be accurate to call her a “female Scalia,” Judge Barrett said that he had been a mentor. But she added: “I want to be careful to say if I am confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett, and that is because not all originalists agree.”

The exchange came as Mr. Graham and Judge Barrett sought to push back on Democrats’ portrayal of the nominee as a right-wing activist chosen to undermine civil rights, the Affordable Care Act and environmental law. Republicans have instead worked to focus on her qualifications and emphasize her status as an accomplished working mother of seven.

Justices do not set an agenda, Judge Barrett said, they respond to the cases that come before them. The description of the process was accurate, but also largely irrelevant in today’s legal world, where interest groups seek out and advance cases to come to the Supreme Court for the express purpose of getting justices to rule on policies to match their political beliefs.

“Judges cannot 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,” Judge Barrett said.

When Senator Dianne Feinstein of California, the committee’s top Democrat, reminded Judge Barrett that Justice Scalia had famously written that the Roe v. Wade decision establishing abortion rights was wrongly decided and should be overturned, Judge Barrett refused to clarify her own views on the issue.

Citing the line other nominees have used, she said she could not comment on legal issues that might come back before the court, beyond simply discussing the role of precedent generally in the law.

Ms. Feinstein was not pleased. “On something that is a major cause with major effects on over half of the population of this country who are women, it is distressing not to get a straight answer,” she said.

Judge Barrett would not budge.

“I have no agenda to try and overrule Casey,” she said, referring to another abortion rights case. “I have an agenda to stick to the rule of law and decide cases as they come.”

In his questioning, Senator Patrick J. Leahy, Democrat of Vermont, presented Judge Barrett with a 2006 advertisement she had signed in support of overturning Roe v. Wade and its “barbaric legacy.” He asked if she agreed with the group behind it which had argued elsewhere that in vitro fertilization ought to be criminalized.

“I signed it on the way out of church,” Judge Barrett said. “It was consistent with the views of my church, and it simply said we support the right to life from conception to natural death. It took no position on I.V.F.”

Judge Barrett took pains to keep her distance from any discussion of which precedents she might reconsider.
Credit…Hilary Swift for The New York Times

Judge Barrett invoked her predecessors in refusing to say how she would rule in potential cases on abortion, the election and same-sex marriage — and a pending case on the Affordable Care Act.

Justice Ruth Bader Ginsburg, who died last month and whose seat Judge Barrett hopes to take, had distilled nominees’ responsibilities into a pithy phrase: “no hints, no forecasts, no previews.” Judge Barrett said she would adopt the same stance.

“That has been the practice before her, but everybody calls it the Ginsburg rule because she stated it concisely and it has been the practice of every nominee since,” Judge Barrett said.

As it happened, though, and as Senator Dianne Feinstein, Democrat of California noted, Justice Ginsburg herself, at her own 1993 confirmation hearing, was quite forthcoming about her views on abortion.

“This is something central to a woman’s life, to her dignity,” Justice Ginsburg said at her hearing. “It’s a decision that she must make for herself. And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.”

Judge Barrett’s approach was, though, in line with the approach of most nominees since Judge Robert H. Bork’s expansive answers at his 1987 confirmation hearings helped doom his nomination.

Judge Barrett took pains to keep her distance from any discussion of which precedents she might reconsider, making an exception only for Brown v. Board of Education, the landmark 1954 school desegregation case. That was, she said, a “super-precedent” — “one that is so well-established it would be unthinkable it would be overruled.”

Otherwise, she said, she would reserve judgment, citing Justice Elena Kagan, one of President Obama’s appointees.

“I’m going to invoke Justice Kagan’s description which I think is perfectly put,” Judge Barrett said. “She said she was not going to grade precedent or give it a thumbs-up or -down.”

“It would be wrong of me to do that as a sitting judge,” Judge Barrett said. “Whether I say I love it or I hate it, it signals that I might tilt one way or another in a pending case.”

She also said that she had not, and never would, promise to rule a certain way on specific cases.

“I’m not willing to make a deal — not with the committee, not with the president,” she said. “I’m independent.”

Supporters of Judge Barrett praying and singing near the Capitol on Tuesday.
Credit…Hilary Swift for The New York Times

As Republicans spent some of the second day emphasizing Judge Barrett’s Catholic faith as part of their strategy to paint Democrats’ opposition to her as anti-religion, Judge Barrett insisted on Tuesday that she could separate her personal religious beliefs from her judicial work.

While acknowledging the importance of Catholicism to her and her family, Judge Barrett assured Mr. Graham that she would not apply the tenets of her religion to matters before the court.

“I have a life brimming with people who have made different choices, and I have never tried, in my personal life, to impose my choices on them,” said Judge Barrett, who teaches at Notre Dame, a Catholic university. “The same is true professionally.”

Though Democrats have not mentioned or alluded to her faith, Republicans have repeatedly accused Democrats of targeting her for her beliefs. (Of the eight seated justices, five were raised Catholic, though Justice Neil Gorsuch is now a member of an Episcopal church.)

During confirmation hearings for her current seat on an appeals court in 2017, Judge Barrett faced probing questions over her ability to separate her beliefs from her legal rulings, and her involvement in People of Praise, a tight knit Christian community, has also been scrutinized.

The group has fewer than 2,000 members and is inspired by the traditions of charismatic Christianity, including speaking in tongues.

On Tuesday, Judge Barrett told senators that when President Trump offered her the nomination, she and her husband, Jesse, “knew that our faith would be caricatured, we knew our family would be attacked” as part of the confirmation process, and had discussed whether to submit to that level of scrutiny before she accepted.

“What sane person would go through that if there was not a benefit on the other side?” Judge Barrett told the committee. “The benefit, I think, is that I am committed to the rule of law and the role of the Supreme Court and dispensing equal justice for all.”

“I am not the only person who could do this job, but I was asked,” Judge Barrett added. “I should serve my country, and my family is all in on that because they share my belief in the rule of law.”

In her introductory statement on Monday, Judge Barrett spoke at length about her family life as a mother of seven and her years of work at Notre Dame.

In questioning Judge Barrett over the coming days, Republicans are likely to continue building a profile of the nominee as an accomplished legal scholar inappropriately scrutinized by Democrats for her personal values.

In doing so, they are expected to invite Judge Barrett to speak about her role as a mentor and a teacher, and as a mother to a large family that includes two adopted children. The approach will allow Senate Republicans, whose majority is at risk, to appeal to women and independent voters whose support their candidates need to win re-election.

Judge Barrett speaking during the hearing on Tuesday.
Credit…Erin Schaff/The New York Times

Judge Barrett refused on Tuesday to say whether she would recuse herself, if confirmed, from considering an upcoming case in which Republican states are trying again to get the Supreme Court to strike down the Affordable Care Act — or from any case that may arise if there is a legal dispute over the outcome of next month’s presidential election.

Under questioning from Mr. Graham about whether she would participate in the pending health care case, the nominee, who has criticized a past Supreme Court decision that declined to strike down a key part of the health care law, said whether a justice should recuse herself is a “legal issue” and “not a question that I could answer in the abstract.”

She also cited a statute that says, among other things, that judges should recuse themselves “whenever their impartiality might reasonably be questioned.” However, Judge Barrett also acknowledged that whether that standard has been met is up to each individual justice to decide for herself.

Later, under questioning from Senator Patrick Leahy, Democrat of Vermont — who noted that President Trump has said he needs his nominee confirmed because he thinks Democrats will try to steal the election from him and it will end up in court — Judge Barrett also did not answer, instead saying she would faithfully work through the process of deciding what to do.

Mr. Leahy observed that she had merely offered a “sort of boilerplate response on recusal.”

Supreme Court justices do not like to recuse themselves, in part because, unlike at the district and appeals court levels, there is no one to replace them if they step aside. If a justice decides to stay on a case despite accusations of a conflict of interest, there is no appeal.

Asked about other issues — notably abortion rights — Judge Barrett spoke about the doctrine of “stare decisis,” which says the Supreme Court should be reluctant to revisit issues it has previously decided.

But she noted that the legal question at issue in the upcoming Affordable Care Act case — whether the entire law must be struck down because one part of it has been deemed flawed, or whether the flawed part is “severable” from the rest — was not addressed in the earlier case, meaning there was no precedent to respect. And she signaled that she did not think she had said or written anything that expressed a view on the current matter.

“Really, the issue in the case is this doctrine of severability and that’s not something that I have ever talked about with respect to the Affordable Care Act,” she said. “Honestly, I haven’t written anything about severability that I know of at all.”

“All of you over there who want to impose Obamacare on South Carolina? We do not want it,” said Senator Lindsey Graham. “We want something better. You know what we want? South Carolina care.”
Credit…Erin Schaff/The New York Times

Facing a difficult re-election battle, Senator Lindsey Graham of South Carolina, the chairman of the Judiciary Committee, opened the second day of Supreme Court confirmation hearings with a prolonged political speech on health care, which he justified as a demonstration of “the difference between politics and judging.”

Mr. Graham framed his remarks as a rebuttal to Democrats on the panel, who on Monday narrowly focused their opening remarks on how Judge Barrett’s confirmation could affect Americans’ access to health care, a theme that helped them win the House majority in the 2018 midterm elections.

But his remarks also functioned as a televised stump speech from the dais of the Judiciary Committee for South Carolina voters considering whether to support his Democratic challenger, Jaime Harrison.

“All of you over there who want to impose Obamacare on South Carolina? We do not want it,” he said. “We want something better. We want something different. You know what we want? South Carolina care.”

Mr. Graham practically boasted: “That’s got nothing to do with this hearing. It’s got everything to do with politics.”

The South Carolina Republican is still favored to win re-election in a state that almost certainly will back President. Trump, but he is fighting a flood of Democratic money. Mr. Harrison raised a stunning $57 million in the third quarter of 2020, the highest quarterly fund-raising total for any Senate candidate in United States history.

Mr. Graham gave a sardonic nod to Mr. Harrison’s campaign coffers later in the hearing as he questioned Judge Barrett on the Citizens United decision that removed virtually any restrictions on corporate money in politics.

“You and I are going to come closer and closer about regulating money, because I do not know what is going on out there,” Mr. Graham said to a Democratic senator on the panel. “There is a lot of money being raised in this campaign. I would like to know where the hell some of it is coming from, but that is not your problem.”

Senator Dianne Feinstein, the ranking member on the Judiciary Committee, during Tuesday’s hearing.
Credit…Erin Schaff/The New York Times

Democrats are expected to focus more on the implications of confirming Judge Barrett than on criticizing her directly.

In opening statements on Monday, Democrats denounced the hearing as an attempt by Republicans to rush through a nominee who would shift the ideological balance of the Supreme Court to the right, jeopardizing the health care law. Many came equipped with photographs and back stories of constituents who have depended on the law during the pandemic, questioning what future they would face if a conservative majority overturned the statute when it goes before the court the week after Election Day.

Democrats want to avoid attacking Judge Barrett’s character, which happened during the confirmation hearings for Justice Brett M. Kavanaugh in 2018. They are also steering clear of talking about the nominee’s Catholic faith, which some Democrats made an issue during her confirmation hearing for an appeals court seat in 2017.

Republicans spent the first day of the proceeding charging that Democrats’ opposition to Judge Barrett reflected anti-religious bias, although no Democrat mentioned or alluded to her faith.

Supporters of Judge Barrett marching past Senate office buildings on Tuesday.
Credit…Hilary Swift for The New York Times

With Democrats all but conceding that Judge Barrett’s confirmation is inevitable, much of the questioning has been colored by the broader political climate in which the confirmation process is taking place.

Mr. Graham opened the hearing with a political speech on the Affordable Care Act, and Democrats were using their time to ask Judge Barrett about her views on access to health care, a theme that helped them win the House majority in the 2018 midterm elections, and abortion rights, in an effort to emphasize the stakes of her confirmation for independent voters and women

The pandemic’s impact was felt inside the hearing room, which was equipped with hand sanitizer and arranged to allow senators and attendees to sit far from each other. Senator Thom Tillis, Republican of North Carolina, who tested positive for the virus less than two weeks ago, was expected to make his return to the hearing room to question Judge Barrett in person after he said he was cleared by his personal doctor on Tuesday to resume in-person activities. Senator Mike Lee, Republican of Utah, who had also tested positive, returned on Monday.

Some Democrats planned to stay away to underscore their concerns about holding the hearing during the pandemic. Senator Patrick Leahy, Democrat of Vermont, questioned Judge Barrett over videoconference, and for several minutes, audio problems prevented the nominee and others in the room from hearing him. At one point, Judge Barrett asked for the volume to be raised so she could understand what the senator was asking.

“As you know, I stayed away,” Mr. Leahy said, “simply because I don’t think it is safe for you or anybody else to be there.”

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Amy Coney Barrett Hearing: Day 1 Highlights

The Senate began four days of what are likely to be contentious Supreme Court confirmation hearings for Judge Amy Coney Barrett.

“This is probably not about persuading each other. Unless something really dramatic happens, all Republicans will vote ‘yes’ and all Democrats will vote ‘no.’” “Do you solemnly swear that the testimony you’re about to give this committee is the truth, the whole truth and nothing but the truth, so help you God?” “I do.” “Voting is underway in 40 states. Senate Republicans are pressing forward, full speed ahead, to consolidate a court that will carry their policies forward with, I hope, some review for the will of the American people.” “Democrats and their leftist allies have also shown that there is no low that they won’t stoop to in their crusade to tarnish a nominee. And I saw it all as chairman of this committee when Kavanaugh came up.” “With one stroke of a pen, one judge can decide if millions of Americans, including their family, would lose their insurance. One judge can decide if millions of Americans can lose their right to keep their kids on their insurance till they’re 26 years old. One judge can decide that if seniors’ prescription drugs, which already are too high, could soar even higher.” “Senator Klobuchar said a number of things about Covid that I agree with. She cited a bunch of really painful stories in Minnesota, and similar stories could be told from across the country. I even agree with parts of her criticism of the mismanagement of Covid by Washington D.C. I don’t know what any of that has to do with what we’re here to do today. Huge parts of what we’re doing in this hearing would be really confusing to eighth graders, if civics classes across the country tuned into this hearing and tried to figure out what we’re here to do.” “I’m not special or unique. Serious illness can hit anyone unexpectedly. It did for me. And when it does, no one should have to worry about whether they can afford care that might save their life.” “Your participation — let me be very blunt — in any case involving Donald Trump’s election would immediately do explosive, enduring harm to the court’s legitimacy and to your own credibility. You must recuse yourself. The American people are afraid, and they’re angry.” “But what your political opponents want to paint you as is a TV or cartoon version of a religious radical, a so-called handmaid, that feeds into all of the ridiculous stereotypes they have set out to lambaste people of faith in America. And that’s wrong.” “Senate Republicans have made it crystal clear that rushing a Supreme Court nomination is more important than helping and supporting the American people, who are suffering from a deadly pandemic and a devastating economic crisis. Their priorities are not the American people’s priorities.” “I look forward to answering the committee’s questions over the coming days. I try to remain mindful that while my court decides thousands of cases a year, each case is the most important one to the litigants involved. After all, cases are not like statutes which are often named for their authors. Cases are named for the parties who stand to gain or lose in the real world, often through their liberty or livelihood. When I write an opinion resolving a case, I read every word from the perspective of the losing party. I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place. I will be forever grateful for the path she marked and the life she led.”

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The Senate began four days of what are likely to be contentious Supreme Court confirmation hearings for Judge Amy Coney Barrett.CreditCredit…Erin Schaff/The New York Times

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