Supreme Court nominee Amy Coney Barrett presented herself Wednesday in her final round of Senate confirmation questioning as a judge with a traditional approach, holding deep personal and religious beliefs but committed to keeping an open mind on what would become a 6-3 conservative majority court.
Senate Republicans are championing President Donald Trump’s pick, who adheres to a strict reading of the Constitution. Doubtful Democrats are digging deeper into the judge’s approach to health care, abortion, racial equity and voting rights, but they are running out of time to stop her quick confirmation.
Conservative late Justice Antonin Scalia was a mentor, but Barrett, a judge on the 7th Circuit Court of Appeals and a University of Notre Dame law professor, said when confronted with his rulings and outspoken comments that she is her own judge.
“When I said that Justice Scalia’s philosophy is mine, too, I certainly didn’t mean to say that every sentence that came out of Justice Scalia’s mouth or every sentence that he wrote is one that I would agree with,” Barrett told the Senate Judiciary Committee.
The judge was being asked about several of Scalia’s decisions, some controversial. She did not respond directly to Sen. Dianne Feinstein, the top Democrat on the panel, who asked whether Barrett agreed with Scalia’s view that the civil rights era Voting Rights Act was a “perpetuation of racial entitlement.” Barrett said Scalia’s approach — “originalism and textualism” — is hers as well. But without discussing the specifics of that case, she called the Voting Rights Act a “triumph in the civil rights movement.”
When Democratic Sen. Chris Coons of Delaware ran through several of Scalia’s opinions, including his dissent in the landmark 2015 Obergefell v. Hodges gay marriage case, he wanted to know just “how closely” she stood by his views.
“I hope you’re not suggesting I don’t have my own mind,” Barrett said.
Sen. Lindsey Graham, R-S.C., opened the final day of her testimony praising Trump’s nominee as an “unashamedly pro-life” conservative who is making history as a role model for other women.
Her nomination to replace the late Justice Ruth Bader Ginsburg has ground other legislative business to a halt as Republicans excited by the prospect of locking in a 6-3 conservative court majority race to confirm her over Democratic objections before Election Day.
“She’s going to the court,” Graham said. “This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology.”
Democratic Sen. Dick Durbin of Illinois agreed Barrett is making history — but as the first nominee considered so close to a presidential election, tapped to fulfill the president’s public quest to install a ninth justice in time to undo the Affordable Care Act in a case heading to the court Nov. 10.
Durbin called Trump’s intent to dismantle the health care law a cloud — “an orange cloud” — over her nomination, a political slam at the president’s tan.
“They need that ninth justice, that’s why it has to be hurried,” Durbin said.
Barrett’s nomination has been the focus at a Capitol mostly shut down by COVID-19 protocols. The health care debate has been central to the week’s hearings, as Americans struggle during the pandemic, drawing a sharp exchange among senators at one point.
Sen. Ted Cruz, R-Texas, scoffed that few Democratic senators attended the hearing. Durbin retorted that health risks left many senators monitoring from their offices rather than convening as a group. Two GOP senators who tested positive for COVID-19 after attending Barrett’s nomination at the White House now say they are symptom-free and attending in person.
As Democrats probed Barrett’s views, Durbin asked if her strict adherence to originalism means a president could not “unilaterally deny the right to vote” based on race, noting restrictions on mail-in ballots being erected in several states before Nov. 3.
She agreed there are “many laws” that protect the right to vote, including the 14th and 15th Amendments to the Constitution, but stopped short of a blanket statement: “I really can’t say anything more.”
Sen. Patrick Leahy, D-Vt., asked what she thinks of Trump’s view that he can pardon himself.
Barrett said a president’s ability to pardon himself has never been tested in court and the question calls out for “legal analysis.” She said, “It’s not one that I can offer a view.”
During Tuesday’s long and lively session, she declined to say whether she would recuse herself from any election-related cases involving the heated race between Trump and Democratic nominee Joe Biden.
Along with trying to undo the health care law, Trump has publicly stated he wants a justice seated for any disputes arising from the election, and particularly the surge of mail-in ballots expected during the pandemic, as voters prefer to vote by mail.
Barrett testified she has not spoken to Trump or his team about election cases, but skipped past Democrats’ pressing 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 post-election cases without first consulting the other justices.
“I can’t offer an opinion on recusal without short-circuiting that entire process,” she said during the nearly 12-hour session.
On health care, she has repeatedly said her past criticisms of Chief Justice John Roberts’ ruling allowing health care law to stand was an academic pursuit, and does not delve into the specific legal issues involved in the case coming before the court.
“I’m not hostile to the ACA,” Barrett told the senators.
The 48-year-old appellate court judge declared her conservative views in often colloquial language, aligned with Scalia, for whom she also clerked after law school.
“I would of course keep an open mind,” she told Leahy as he pressed on voting access for Black Americans.
On Tuesday, Barrett declined to characterize the Roe v. Wade decision that legalized abortion as a “super-precedent” that must not be overturned.
Democrats had no such reticence.
“Let’s not make any mistake about it,” said California Sen. Kamala Harris, the Democratic vice presidential nominee, appearing remotely due to COVID concerns. Allowing Trump to fill the seat with Barrett “poses a threat to safe and legal abortion in our country,” Harris said.
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.