Court Battles

Key moments from Barrett’s marathon question-and-answer session

Judge Amy Coney Barrett emerged largely unscathed from three days of testimony before the Senate Judiciary Committee that will frame the Supreme Court debate between now and her confirmation vote.

Barrett emerged as disciplined and articulate while managing to sidestep many of the traps laid out by Democratic senators, displaying her deep knowledge of the law and legal theory — all without notes — and earning compliments even from senators such as Cory Booker (D-N.J.).

But Barrett refused to say whether she agreed with several of the landmark Supreme Court decisions that established the right to have an abortion or marry someone of the same sex, something Democrats are sure to feature prominently in the fall campaign.

The most riveting moments came when Barrett squared off against the Democratic women on the committee: Sen. Dianne Feinstein (Calif.), who was present for Justice Ruth Bader Ginsburg’s 1993 confirmation process; Sen. Kamala Harris (Calif.), the Democratic nominee for vice president; and Amy Klobuchar (Minn.), a former prosecutor who also ran for president this year.

Here are the key moments from this week’s hearing.

Feinstein questions Barrett on Roe v. Wade and abortion rights 

A pivotal moment came early on the first day of questioning when Barrett refused to tell Feinstein, the ranking Democrat on the Judiciary Committee, whether she agreed with her former mentor, the late Justice Antonin Scalia, that Roe v. Wade, the 1973 case that established abortion rights, was wrongly decided.

“I’m going to invoke Justice Kagan’s description, which I think is perfectly put,” Judge Barrett said, referring to the Senate’s confirmation of Obama nominee Elena Kagan in 2010. “She said that she was not going to grade precedent or give it a thumbs-up or a thumbs-down.”

The answer disappointed Feinstein, who said it was “distressing not to get a straight answer.”

It set the tone for hours of subsequent questioning, as Barrett again and again refused to provide her views on prominent past court decisions or legal hypotheticals because she said it might undermine her appearance of impartiality.

Harris also raises the alarm over a woman’s right to choose

A dramatic moment came late on the first day of questioning when Harris raised a full-throated alarm about the threat Barrett’s nomination posed to abortion rights. 

Without asking the nominee a question, Harris painted a picture of what she called a concerted campaign by “anti-choice activists and politicians” to “pass laws and file lawsuits designed to overturn Roe and the precedents that followed.”

She contrasted Barrett’s refusal to comment on Roe v. Wade and Planned Parenthood v. Casey, a landmark case that upheld Roe v. Wade, with what she called Ginsburg’s “more forthcoming” answers in her 1993 confirmation hearing “about the essential rights of women.”

She pointed to Barrett’s signing of an advertisement published in South Bend Tribune that called for “an end to the barbaric legacy of Roe v. Wade” and a law journal article Barrett wrote in 2013 that excluded Roe v. Wade from a list of well-settled cases. 

Barrett dodges questions about recusing herself from Trump-related cases

Barrett repeatedly declined to say whether she would recuse herself from a variety of potential cases involving President Trump or on which Trump has expressed a strong opinion, such as a pending challenge to the Affordable Care Act that will come before the Supreme Court on Nov. 10.

When Judiciary Committee Chairman Lindsey Graham (R-S.C.) asked the nominee if she would recuse herself from California v. Texas, in which 20 Republican-led states are trying to strike down the Affordable Care Act, Barrett said she would follow the court’s rules for recusal and consult with colleagues. 

“That’s not a question that I could answer in the abstract,” she said.

She also declined to promise to recuse herself from any litigation over the results of the Nov. 3 election — like the nation saw during the Florida recount after the 2000 presidential election — when pressed by Sen. Patrick Leahy (D-Vt.).  

Barrett said decisions to recuse always happen “after consultation with the full court, so I can’t offer an opinion on recusal without short-circuiting that entire process.”

Yet Barrett bristled at any implication that she would be any party’s “pawn” in determining the outcome of a disputed election.

“I certainly hope that all members of the committee have more confidence in my integrity to think I would allow myself to be used as a pawn to decide this election for the American people,” Barrett told Sen. Chris Coons (D-Del.).

Barrett also declines to say if Trump can unilaterally delay election

Barrett said she wouldn’t make any pronouncements in the Senate hearing room about whether Trump has the authority in the Constitution or federal law to unilaterally delay the election.

“Well, senator, if that question ever came before me, I would need to hear arguments from the litigants and read the briefs and consult with my law clerks and talk to my colleagues and go through the opinion writing process,” Barrett responded.  

Trump floated the idea in July of delaying the election “until people can properly, securely and safely vote” because of the pandemic, something that GOP leaders in Congress immediately shot down. 

Barrett’s answer left some Democratic senators dumbfounded.

“I’m trying to buy this notion that she can’t talk about a president unilaterally deciding to delay an election. She thinks that goes too far, asking her to be a pundit. I think an originalist can see language in the Constitution that is very explicit on that,” said Senate Minority Whip Dick Durbin (D-Ill.), a member of the committee.

Barrett clashes with Booker on hostile work environments and racial slurs

Booker, one of two African American members of the Judiciary panel, challenged Barrett over her decision in Smith v. Illinois Department of Transportation, in which she upheld the dismissal of a workplace discrimination suit by an employee who said he was called a racial slur by his supervisor.

Barrett wrote that the employee, Terry Smith, couldn’t win the case “simply by proving the [n-word] was uttered. He must also demonstrate that [his supervisor’s] use of the word altered the conditions of his employment and created a hostile working environment.” 

Booker said he was “very surprised” by having to remark on Barrett’s decision. He noted that when he questioned then-Supreme Court nominee Brett Kavanaugh in 2018, the conservative nominee spoke to “the obvious harm” of a racial slur and had written in another case that “being called the n-word by a supervisor suffices by itself to establish a racially hostile work environment.”

Barrett responded that her opinion did not differ in substance from Kavanaugh’s view, arguing “it was written very carefully to leave open the possibility that one use of that word would be sufficient to make a hostile work environment claim.”

She said “the n-word was used after his termination had already begun” and that the plaintiff didn’t argue that the slur altered the terms of his employment and noted “it was a unanimous panel decision.”  

Barrett hints she may rule to uphold Affordable Care Act 

The nominee dropped the subtlest of hints at the start of her second day of answering questions that she could very well rule that the Affordable Care Act is constitutional while striking down the law’s controversial individual mandate, for which Congress zeroed out the tax penalty in the 2017 Tax Cuts and Jobs Act. 

Barrett gave supporters of the health care law hope by laying out her views on severability, the legal doctrine allows for distinct parts of a law to be struck down without wiping all of it.  

“The presumption is always in favor of severability,” Barrett said in response to a question from Graham.

Graham sought to downplay the expectation that the Supreme Court will strike down all of ObamaCare because of Congress’s decision to get rid of the individual mandate’s tax penalty three years ago.

“I want every conservative in the nation to listen to what she just said. The doctrine of severability presumes, and its goal is to preserve the statue if that is possible,” Graham said.  

Barrett declines to comment on legal challenges to Trump’s business dealings

Barrett steered clear of commenting on whether Trump’s business interactions with foreign patrons and governments conflicted with the Constitution’s emoluments clauses when pressed by Leahy.  

Leahy prefaced his question by asserting that “200 companies and foreign governments have patronized Trump properties, and at the same time they were getting benefits from him and his administration.”

Barrett didn’t take the bait, though, citing recent litigation in the 2nd Circuit and 4th Circuit appeals courts.

“As a matter that’s being litigated, it’s very clear that that would be one I can’t express an opinion on because it could come before me,” she said, citing a case in which Maryland and the District of Columbia have filed suit invoking the emoluments clause, claiming the Trump International Hotel on Pennsylvania Avenue has impacted local businesses.

Harris presses Barrett on climate change

Other key moments came Tuesday evening and Wednesday afternoon when senators asked Barrett about her views on climate change.

When Sen. John Kennedy (R-La.) asked the nominee about her opinions on climate change and whether she had thought about the subject, Barrett demurred.

“I’m certainly not a scientist,” she answered, using a talking point that has been popular in the past among some GOP lawmakers.

“I’ve read things about climate change. I would not say that I have firm views on it,” she added.

That answer did not sit well with Harris when she got a chance to ask her second round of questions on Wednesday afternoon.

Harris cited massive wildfires that raged in California this summer, which experts have linked to drier conditions, heatwaves and more frequent lightning storms associated with climate change.  

She also pointed to the Trump administration’s effort to roll back “environmental protections” and removal of “the term climate change from government agencies’ websites” and the 2007 Supreme Court decision in Massachusetts v. EPA in which five justices ruled a state could sue the Environmental Protection Agency for not combating climate change.  

“I certainly do believe your views are relevant,” Harris said and added she was “very concerned” about Barrett’s statement that she was not competent to opine on climate change as a nonscientist.

Harris then asked Barrett pointedly if she would “defer to scientists and those with expertise” before rendering a judgment if a climate-related case comes before the Supreme Court.

Barrett answered, “If a case comes before me involving environmental regulation, I will certainly apply all applicable law, deferring when the law requires me to.” 

Tags Amy Coney Barrett Amy Klobuchar Brett Kavanaugh Chris Coons Cory Booker Dianne Feinstein Dick Durbin Donald Trump Elena Kagan John Kennedy Lindsey Graham Patrick Leahy Ruth Bader Ginsburg

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