Election issues loom large in Senate questioning of Amy Coney Barrett for Supreme Court seat

Nominee spent much of the day dodging questions on abortion, health care and gun rights

Supreme Court justice nominee Amy Coney Barrett prepares to testify on the second day of her Senate Judiciary Committee confirmation hearings on Tuesday. (Tom Williams/CQ Roll Call)
Supreme Court justice nominee Amy Coney Barrett prepares to testify on the second day of her Senate Judiciary Committee confirmation hearings on Tuesday. (Tom Williams/CQ Roll Call)
Posted October 13, 2020 at 11:34am

Health care and abortion dominated the Senate Judiciary Committee’s confirmation hearing Tuesday for Amy Coney Barrett, President Donald Trump’s third pick for the Supreme Court, as senators jockeyed to score political points in the weeks before Election Day.

Barrett, whose nomination to replace the late Justice Ruth Bader Ginsburg is expected to come to the Senate floor for a vote later this month, spent much of the morning dodging questions on contentious issues like gun rights and racial discrimination.

Sen. Dianne Feinstein of California, the top Democrat on the panel, asked Barrett whether she agreed with former Justice Antonin Scalia that the 1973 landmark decision Roe v. Wade establishing a constitutional right to abortion was wrongly decided and should be overruled. Barrett, who once clerked for Scalia, said she wanted to be forthright and answer questions, but repeatedly declined to do so for Feinstein’s question.

Barrett said she would not grade precedents or weigh in on an area where there is active litigation that might be before the Supreme Court.

“It would actually be wrong and a violation of the canons for me to do that as a sitting judge,” Barrett said. “So if I express a view on a precedent one way or another, whether I say I love it or hate it, it signals to litigants that I might tilt one way or another in a pending case.”

Feinstein said Barrett’s response makes it difficult for her to support her confirmation.

“Because this is a very important case, and it affects a lot of people, millions and millions of women. And you could be a very important vote,” Feinstein said.

Barrett also said Roe v. Wade was not a so-called super precedent considered beyond the possibility of being overturned. Later in the hearing, Barrett argued her previous statements on the issue, including an advertisement she signed on to opposing abortion, were distinct from her role as a judge.

“I do see as distinct my personal moral religious views and my task of applying laws as a judge,” she said.

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Barrett sat before the panel for the first of two days of questioning by lawmakers with just a pen and blank pad of paper on the otherwise bare witness table. She spoke and answered questions without notes or reference material, and without taking many notes.

About two hours into the hearing, Texas Republican John Cornyn asked Barrett to hold up the materials she had been using to answer questions from the committee, noting the binders and piles of materials senators had in front of them. She held up the blank pad of paper, with just the Senate letterhead at the top, smiling.

“That’s impressive,” said Cornyn, a former Texas Supreme Court justice.

This drew contrast to Brett M. Kavanaugh’s high court confirmation hearings in 2018, during which he took copious notes with black permanent marker, circling and underlying and crossing out his own notations. His papers blanketed the witness table.

Also a notable difference from the contentious and emotionally charged Kavanaugh hearings: There was no extensive crosstalk, shouting or interruptions.

“Not one time has a senator and the judge talked over each other. I hope the American people understand that this is the way that it should be,” Judiciary Chairman Lindsey Graham, R-S.C., said more than six hours into the hearing.

For Americans watching at home, it could have seemed more like a dig at the most recent presidential debate in which crosstalk and interruptions dominated over real policy discussion.

A small wooden table was set up next to Barrett, housing Purell hand sanitizer, Clorox wipes, tissues and napkins, a sign of the ongoing COVID-19 pandemic that has punctuated the proceedings.

Sen. Thom Tillis, R-N.C., who tested positive for COVID-19 on Oct. 2, joined the hearing in person. He sent out a letter from his personal doctor in North Carolina asserting that he met the Centers for Disease Control and Prevention criteria for ending isolation. It did not say that Tillis had tested negative for the virus.

Senators are slated to continue asking questions through Tuesday evening and again Wednesday.

Health care in focus

Graham brought up his own tough reelection fight against a well-funded Democratic challenger in an opening speech that mostly focused on the effect of the 2010 health care law on South Carolina.

At one point, Graham referenced the Supreme Court’s 2010 Citizens United decision, which found that the First Amendment’s free speech rights meant the government could not limit corporations from spending money on elections.

“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,” he said. “I’d like to know where the hell some of it’s coming from.”

Democrats, meanwhile, stuck largely to core issues such as abortion and the health care law, on which the Supreme Court will hear arguments Nov. 10.

Sen. Charles E. Grassley, R-Iowa, argued Democrats have overblown Barrett’s criticism of the previous Supreme Court case that upheld the 2010 law.

“Apparently having technical concerns with [Chief Justice John G. Roberts Jr.’s] legal reasoning in the Obamacare decision disqualifies her,” Grassley said. “Democrats are painting the judge as heartless and on a mission to scrap the health care law. Frankly, that’s absurd.”

The health care law has surfaced as a major issue in the 2020 presidential campaign as well as in competitive Senate races across the country. Candidates in two of those races, Tillis and Iowa Republican Joni Ernst, along with the Democratic vice presidential nominee Kamala Harris of California, were slated to ask questions later Tuesday.

Barrett also deferred on a question of whether the president has constitutional authority to delay the election. She said she had not had a discussion with the administration about that or any other case.

“I have had no conversation with the president or any of his staff on how I might rule in that case,” she said.

Barrett did give a few hints about how she might approach the court. She said she would only look at the legislative history of a statute if other options had been exhausted, and said she regards herself as an originalist and considers Scalia a model.

“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.

Todd Ruger contributed to this report.