Five takeaways from Barrett's Supreme Court grilling

Supreme Court nominee Amy Coney BarrettAmy Coney BarrettBill would honor Ginsburg, O'Connor with statues at Capitol Supreme Court's approval rating dips to 49 percent  The Hill's Morning Report - Presented by Facebook - Jan. 6 probe, infrastructure to dominate week MORE was grilled by members of the Senate Judiciary Committee for more than 11 hours on the second day of her confirmation hearings.

During the marathon session, senators pressed Barrett on a host of issues, including the Affordable Care Act (ACA), abortion rights, the Nov. 3 election and her broad judicial philosophy.

The committee will have another hours-long Q&A session with Barrett on Wednesday, her final day before the panel. Chairman Lindsey GrahamLindsey Olin GrahamGraham, Cuellar press Biden to name border czar Trump takes two punches from GOP The Hill's 12:30 Report - Presented by Facebook - US gymnast wins all-around gold as Simone Biles cheers from the stands MORE (R-S.C.) is paving the way for a vote in the committee on her nomination next week.


Here are five takeaways from Tuesday’s session.

Barrett elusive on specific issues

Democrats tried — with little success — to pin Barrett down on how she would rule on a host of issues such as Roe v. Wade, the Second Amendment and a case set to go before the court Nov. 10 on the Affordable Care Act.

Barrett sidestepped, saying that like the late Justice Ruth Bader GinsburgRuth Bader GinsburgBill would honor Ginsburg, O'Connor with statues at Capitol Supreme Court's approval rating dips to 49 percent  Anti-abortion movement eyes its holy grail MORE she would not offer “previews” on specific cases or issues that could come before the Supreme Court.

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

Supreme Court nominees typically sidestep specific questions from senators as part of their confirmation process, arguing that they can’t do anything that would appear to bias themselves on issues they could be asked to make decisions on.

But Barrett’s elusiveness appeared to frustrate Democrats, with Sen. Richard Blumenthal (D-Conn.) telling reporters that she had “perfected the art of nonanswers.” 


Barrett did align herself broadly with the judicial philosophy of the late Justice Antonin Scalia but declined to characterize herself as a female version of the late conservative justice.

“I want to be careful to say that if I'm confirmed you would not be getting Justice Scalia. You would be getting Justice Barrett,” she said.

Roe v. Wade draws major spotlight

Barrett said that she did not consider Roe v. Wade, the landmark ruling establishing a woman’s right to an abortion, to be a “superprecedent,” drawing further scrutiny from Democrats about her views.

This scholarly term is generally thought to refer to Supreme Court decisions that are so firmly established in American law as to be virtually invulnerable from being dislodged by a future legal challenge.

Barrett cited the Supreme Court’s 1954 ruling in Brown v. Board of Education, which struck down racial segregation in public schools, as an example of a precedent that cannot be uprooted.

By contrast, she indicated that sustained attacks on Roe since the landmark decision was made in 1973 reflected its more provisional status.

"I’m answering a lot of questions about Roe, which I think indicates Roe doesn’t fall into that category," Barrett told the panel.

Barrett hastened to add that Roe’s relative vulnerability does not necessarily mean it should be struck down.

“Roe is not a superprecedent,” she said, “But that does not mean it should be overruled. It just means that it does not fall on the small handful of cases like Marbury v. Madison and Brown v. Board that no one questions anymore.”

Democrats pointed to Barrett’s reluctance to apply the superprecedent label to Roe as additional evidence that her confirmation could imperil a woman’s right to terminate an unwanted pregnancy. 

Barrett stresses independence from President TrumpDonald TrumpSenators introduce bipartisan infrastructure bill in rare Sunday session Gosar's siblings pen op-ed urging for his resignation: 'You are immune to shame' Sunday shows - Delta variant, infrastructure dominate MORE

Democrats repeatedly sought to tie Barrett to Trump's public predictions on how his Supreme Court picks would rule on key issues, forcing the nominee to stress her independence from the president.

Barrett said that she hasn’t had any conversations with Trump or his staff about a specific case as part of discussions surrounding her potentially succeeding Ginsburg on the bench.


"I have had no conversation with the president or any of his staff on how I might rule in that case. It would be a gross violation of judicial independence," she said.

Sen. Amy KlobucharAmy KlobucharManchin 'can't imagine' supporting change to filibuster for voting rights Hillicon Valley: Democrats urge tech CEOs to combat Spanish disinformation | Amazon fined 6M by EU regulators Democrats urge tech CEOs to combat Spanish disinformation MORE (D-Minn.) later questioned Barrett with a tweet from Trump about his judicial appointments printed on a poster board next to her. Barrett, however, said she could not “speak to” the president’s tweets, adding, “He hasn’t said any of that to me.”

Trump was mentioned by name or in passing more than 100 times on Tuesday, based on a transcript of the hearing. In one example, responding to GOP criticism that Democrats were implying Barrett could be pressured to break her oath of independence, Sen. Dick DurbinDick DurbinCongress should butt out of Supreme Court's business Inmates grapple with uncertainty over Biden prison plan Democrats warn shrinking Biden's spending plan could backfire MORE (D-Ill.) pointed to the president’s tweets. 

“This notion that this whole idea of your being used for political purposes is a Democratic creation, read the tweets and you have plenty to work with. Read the tweets,” Durbin said.

Sen. Patrick LeahyPatrick Joseph LeahyThe Hill's Morning Report - Presented by Facebook - Biden sets new vaccine mandate as COVID-19 cases surge House clears .1 billion Capitol security bill, sending to Biden Senate passes .1 billion Capitol security bill MORE (D-Vt.) said that Trump “has made it crystal clear, and he's promised that his nominees would overturn the ACA,” while Sen. Chris CoonsChris Andrew CoonsBottom line Kavanaugh conspiracy? Demands to reopen investigation ignore both facts and the law Key Biden ally OK with dropping transit from infrastructure package MORE (D-Del.) referenced a previous Trump tweet where the president said his nominees would do the “right thing” on ObamaCare. 

Barrett keeping the president at arm's length comes as she has tried to stress that she would be independent if confirmed to the Supreme Court and wouldn’t come to the court with an “agenda.”

Election disputes hang over court fight


Democrats repeatedly tried to get Barrett to weigh in on various aspects of the upcoming presidential election. She sidestepped each question. 

Asked if she would pledge to recuse herself if election-related cases made it to the Supreme Court, Barrett declined to say but vowed that she would not be “used as a pawn to decide this election.”

Barrett also sidestepped when Sen. Dianne FeinsteinDianne Emiel FeinsteinNearly 140 Democrats urge EPA to 'promptly' allow California to set its own vehicle pollution standards Biden signs bill to bolster crime victims fund Stripping opportunity from DC's children MORE (D-Calif.) asked if the president could unilaterally delay the Nov. 3 election, an idea he floated in a tweet earlier this year. Legal experts have said that Trump could not delay the election.

Later in the hearing, Sen. Cory BookerCory BookerWomen urge tech giants to innovate on office return Human rights can't be a sacrificial lamb for climate action Senate Democrats press administration on human rights abuses in Philippines MORE (D-N.J.) asked Barrett if she believed a president should commit to a peaceful transition of power, something Trump has so far refused to do.

Barrett initially declined to wade into the issue, saying that “to the extent that this is a political controversy right now, as a judge I want to stay out of it.” 

Asked again, Barrett said she believed a peaceful transfer of power was part of the “genius” of the political system but did not say if she believed Trump should pledge to peacefully hand over power if he loses next month.

Senators relish national spotlight — to talk past Barrett


Senators spent hours questioning Barrett. But they also spent plenty of time not speaking to the nominee sitting before them but making broader legal and political points to the TV cameras and national audience tuning in.

Graham, kicking off Tuesday’s hearing, talked about how Republicans view ObamaCare and the 2020 election while giving a hat tip to the record-breaking fundraising by his South Carolina Democratic Senate opponent, Jaime Harrison.

“I don't know what's going on out there, but I can tell you there's a lot of money being raised in this campaign. I'd like to know where the hell some of it’s coming from,” Graham said during the hearing.

Sen. Sheldon WhitehouseSheldon WhitehouseLobbying world Kavanaugh conspiracy? Demands to reopen investigation ignore both facts and the law Christine Blasey Ford's lawyers blast FBI's Kavanaugh investigation as 'sham' MORE (D-R.I.) asked no questions of Barrett, instead spending his time outlining the connections between conservative outside groups that are deeply invested in the outcome of the Supreme Court fight. 

Sen. Ted CruzRafael (Ted) Edward CruzUp next in the culture wars: Adding women to the draft Biden's bipartisan deal faces Senate gauntlet 228 Republican lawmakers urge Supreme Court to overrule Roe v. Wade MORE (R-Texas) asked Barrett brief questions at the top of his time about the Bill of Rights. 

Cruz, viewed as a likely 2024 GOP presidential candidate, then gave a 24-minute speech, lashing out at Democrats on abortion and firing back at Whitehouse over his remarks on campaign spending.

When he turned back to Barrett, he said he wanted to focus on her background. His first question was “Judge Barrett, do you speak any foreign languages?”