Election night could provide a quick White House winner, or a flood of mail-in ballots and social division could delay results for weeks
During then-Judge Brett Kavanaugh’s confirmation hearing in 2018, Sen. Mike Lee, R-Utah, at one point lobbed the Supreme Court nominee a softball question about his choice of writing utensil. Lee said, “I noticed you take a lot of notes, and I respect that—because I can tell you’re paying close attention.”
Kavanaugh, a smattering of papers in front of him, explained he used a thick black Sharpie pen “so I can see.”
But no one could accuse Judge Amy Coney Barrett, who answered lawmakers’ questions on Tuesday without any such notes, of paying insufficient attention.
“Most of us have multiple notebooks and notes and books and things like that in front us,” Sen. John Cornyn, R-Texas, remarked at one point. “Can you hold up what you’ve been referring to to answer our questions?”
Barrett smiled. She held up a blank notepad that had been provided as a courtesy.
She read aloud the only words on the paper—the letterhead saying, “United States Senate.”
The exchange provided a lighthearted reprieve in a marathon of questioning Tuesday that stretched into the evening and then continued again on Wednesday. Lawmakers grilled Barrett in an attempt to discover how, if confirmed to the Supreme Court, she might rule on cases involving hot-button issues like abortion, healthcare, gun control, voting rights, and the presidential election. Barrett remained tight-lipped on hypothetical future rulings, though. She invoked a long-standing precedent articulated by former Justice Ruth Bader Ginsburg, whose seat President Donald Trump nominated Barrett to fill.
“No hints, no previews, no forecasts,” Barrett said. “That has been the practice of nominees before her, but everybody calls it the Ginsburg rule because she stated it so concisely, and it’s been the practice of every nominee since.”
Barrett also noted that Justice Elena Kagan, during her own confirmation hearing, said she would not grade past judicial rulings or give them a thumbs-up or thumbs-down. Barrett added, “It would actually be wrong and in violation of the [judicial] canons for me to do that as a sitting judge.”
Democrats called Barrett’s lack of concrete answers evasive. When Barrett refused to answer how she might rule on a case involving abortion, Sen. Dianne Feinstein, D-Calif., responded, “On something that is really a major cause with major effect on half of the population of this country, it’s distressing not to get a straight answer.”
In keeping with their strategy on the opening day of the hearing, Democratic lawmakers largely stayed away from questions about Barrett’s Roman Catholic faith. During Barrett’s 2017 confirmation hearing for her current position as a judge on the U.S. Court of Appeals for the 7th Circuit, some questioned whether her religious beliefs would allow the 48-year-old mother of seven to fairly decide cases.
This time around, Democratic lawmakers asked Barrett about the Affordable Care Act. Some questioned whether President Trump nominated her to give the court the conservative majority needed to repeal the healthcare law and overturn the landmark Roe v. Wade decision that made abortion legal nationwide.
Democrats hope that emphasizing healthcare and Americans with preexisting health conditions will be a compelling message during an election year. It is compelling for another reason, too: A week after the election, the Supreme Court is set to hear arguments for California v. Texas, a case that challenges the constitutionality of the healthcare law, also known as Obamacare.
“Were you aware of President Trump’s statements committing to nominate judges who will strike down the Affordable Care Act?” asked Sen. Kamala Harris, D-Calif. (Harris is the Democratic nominee for vice president.)
Barrett told Harris she did not recall hearing or seeing any such statements from the president prior to her nomination. She also said she’d had no conversations with the president or his advisers about the healthcare law, and said she’d made no commitments about how she would rule on the issue.
Harris argued Republicans, having failed to repeal President Barack Obama’s signature healthcare law in Congress, are attempting to use the courts to accomplish the same goal. “The Affordable Care Act and all its protection hinge on this seat and the outcome of this hearing,” she said.
Barrett did explain that a main legal issue facing the healthcare law had to do with the concept of “severability”—when a court finds part of a law to be unconstitutional and must decide whether to strike down the entire law. She did not, however, say whether she thought the Affordable Care Act would stand even with the individual mandate—the requirement that people buy health insurance or pay a fine—struck down.
Republicans questioned the nominee at length on her judicial philosophy: Barrett identifies as an originalist and textualist. At one point, Sen. Ben Sasse, R-Neb., asked her to clarify the difference. Barrett explained that an “originalist” philosophy means interpreting the Constitution according to the original meaning of the text, while “textualism” refers to interpreting the plain meaning of the text of other statutes.
Barrett pushed back against the notion that all originalists rule alike, or that she would always rule like the late Justice Antonin Scalia, the prominent court conservative for whom she once clerked. “You would not be getting Justice Scalia, you would be getting Justice Barrett,” she said.
Repeatedly during the hearing, Barrett said she was bringing no agenda to the court. “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 said Tuesday. “It’s not the law of Amy. It’s the law of the American people.”
On Wednesday she added, in reference to the Affordable Care Act: “I’m not on a mission. I’m not hostile to the ACA at all.”
Meanwhile, Republicans remain optimistic Barrett will become the president’s third appointed justice on the high court. Senate Judiciary Chairman Lindsey Graham, R-S.C., scheduled a committee vote on her nomination for Oct. 22. If all 12 of the Republicans on the committee vote yes, her nomination will then move to the full Senate.
“This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology, and she is going to the court,” Graham said Wednesday.
—This story has been updated to correct the date of the scheduled committee vote.