Barrett Pressed on Trump as Testimony Ends, Confirmation Nears

(Bloomberg) -- All but powerless to keep Amy Coney Barrett off the Supreme Court, Senate Democrats used their final day of questioning the nominee to grill her over statements made by the person who chose her, President Donald Trump.

Democrats asked the 48-year-old Barrett about Trump’s suggestion that the Nov. 3 election be delayed and his claim that he has “an absolute right to pardon myself” should the need arise. Barrett declined to answer both. Those questions came a day after senators pressed her on potential legal challenges to the election and whether presidents should commit to a peaceful transfer of power, as Trump has declined to do.

Testifying at her confirmation hearings, Barrett also avoided answering direct questions about how she would vote in potential Supreme Court cases. The topics included same-sex marriage, abortion, climate change, voting rights, and the Affordable Care Act.

While saying she wasn’t calling for the court to be more aggressive in overturning its precedents, she declined to include cases involving access to abortion and contraception rights among “super-precedents,” meaning those unthinkable to overturn.

Confirmation Assured

Barrett’s confirmation to replace the late Justice Ruth Bader Ginsburg was nearly assured even before the hearings started as Republicans on the panel outnumber Democrats and have enough support to vote her nomination out of committee. Senate Republican leaders say they have the votes to confirm Barrett in the full Senate.

“You will be confirmed, God willing,” said Senate Judiciary Committee Chairman Lindsey Graham, before gaveling Wednesday’s session closed. “You will have my full support.”

Tensions in the hearing room increased Wednesday, as Barrett’s previously calm demeanor became testy at points during the second round of questioning. Senators also at times appeared agitated -- Democrats over her avoidance of questions they regarded as having obvious answers and Republicans over their colleagues’ continuing attempts to press Barrett for responses.

“My core concern here is your confirmation might launch a new chapter of conservative judicial activism, unlike anything we’ve seen in decades,” Democratic Senator Chris Coons, of Delaware, told Barrett during a discussion about overturning court precedents. He added that “if that’s true, it could touch virtually every aspect of modern American life.”

Testy Exchanges

In one tense exchange, Senator Kamala Harris, the California Democrat who is now the party’s nominee for vice president, posed a series of yes or no questions culminating with one asking Barrett if she believed “climate change is happening.” Barrett pushed back.

“You have asked me a series of questions that are uncontroversial, like if Covid-19 is infectious and whether smoking causes cancer,” Barrett said. “And then trying to analogize that to elicit an opinion from me on a very contentious matter of public debate. And I will not do that.”

The Trump administration has been skeptical of the science behind global warming and pulled out of the international Paris agreement.

Barrett, who a day before had maintained she would not be a “pawn” of the Trump administration and had made no promises to anyone for the nomination, repeated that she had no “hostility” toward the Affordable Care Act, or Obamacare, which the court will consider overturning in a Nov. 10 argument.

‘Cloud Over Nomination’

Senator Dick Durbin, a Democrat from Illinois, told Barrett that Trump had placed a “cloud over your nomination” by declaring his intention to appoint a Supreme Court justice who would vote to overturn the Affordable Care Act. The court will consider throwing out the ACA, also known as Obamacare, in a Nov. 10 argument.

Barrett, who a day before had maintained she would not be a “pawn” of the Trump administration and had made no promises to anyone for the nomination, repeated that she had no “hostility” toward the ACA.

“No matter what somebody’s policy preferences are about the ACA, I completely agree with you they shouldn’t be trying to undermine the policy that Congress enacted,” Barrett said.

Barrett was asked by Durbin whether the president could deny a person the right to vote based on race.

Barrett declined to go further than citing Constitution’s equal protection clause and the 15th Amendment, which protects the right to vote against racial discrimination.

“Well, Senator, you’ve asked a couple different questions about what the president might be able to unilaterally do, and I think that I really can’t say anything more than I’m not going to answer hypotheticals,” Barrett said.

‘Strains Originalism’

Durbin said that it “strains originalism if the clear wording of the Constitution establishes a right and you will not acknowledge it,” referring to Barrett’s approach of interpreting the Constitution according to the original meaning of its words. Barrett quickly replied that the rules of conduct for federal judges “don’t permit me to offer off-the-cuff reactions or any opinions outside the judicial decision-making process.”

Democratic Senator Amy Klobuchar, of Minnesota, intimated that Barrett took a stance against the ACA with an eye toward getting a judicial appointment from Trump. Klobuchar pressed Barrett to say she was aware of Trump’s opposition to the law when the then-professor wrote a 2017 law review article that criticized Chief Justice John Roberts’s opinion upholding the measure. Not long after it was published, Trump nominated Barrett to a federal appellate court and she was confirmed.

Barrett said she probably wrote the article before the 2016 presidential election. “To the extent you are suggesting that this was like an open letter to President Trump, it was not,” she said.

Birth Control

Democratic Senator Richard Blumenthal said he was “stunned” Barrett wouldn’t follow the example of previous nominees and say that the Supreme Court was correct in a 1965 ruling that married couples have a right to privacy that lets them use birth control.

Earlier, Barrett said it was extremely unlikely the Supreme Court would ever overturn the ruling, known as Griswold v. Connecticut. For that to happen, Congress or a state legislature would have to take the “shockingly unlikely” step of banning contraceptives, she said.

Under questioning by Coons about whether she would overturn high-court precedents, Barrett extracted his agreement that precedents should sometimes be revisited. She cited a 2003 Supreme Court ruling that overturned a 1986 decision and said the government can’t outlaw private homosexual activity.

Undoing Precedents

Coons responded that he agreed that “in grievously wrong cases it is appropriate to reach back.” But he added that her embrace of the originalist approach will result in far more extensive changes in precedents.

Democrat Patrick Leahy of Vermont pressed Barrett to say whether the president has a right to pardon himself for a crime. He told her that “for 200 years, the Supreme Court has recognized the common law principle that nobody can be a judge in their own case.”

Barrett said she couldn’t answer, saying that “it would be opining on an open question when I haven’t gone through the judicial process to decide it.”

Senator Ted Cruz, a Texas Republican, said the line of inquiry by Democrats shows “that Judge Barrett is going to be confirmed by this committee and by the full Senate.”

“With two full days of questioning,” Cruz said, “we’ve seen that our Democratic colleagues have very few questions actually to raise about Judge Barrett’s qualifications. Very little of the time we’ve spent in here has concerned her record as a judge, her 20 years as a respected scholar. Instead most of this hearing has focused on political attacks directed at President Trump.”

Kicking off Wednesday’s session, Graham said Barrett represents “the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology.” At the same time, he stressed that Trump’s third high-court pick has pledged to put aside her personal views when making rulings.

Barrett also rejected suggestions that she was pushing to make the court more willing to overturn its precedents. In a 2013 law review article she wrote that a Supreme Court justice should “enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”

Outside Witnesses

But Barrett said she “wasn’t arguing for any alteration” in the rules governing preservation of the court’s precedents. “I was saying this is how it is, this is how the Supreme Court does it, and that’s right,” she said.

The committee’s 12 Republicans and 10 Democrats will hear from outside witnesses on Thursday, and Graham says he will move to set a committee vote to advance her nomination to the full Senate on Oct. 22. Senate Majority Leader Mitch McConnell has signaled he’ll set the stage for a full Senate vote the following week.

Democrats have invited four people to testify, including a mother of 7-year-old twins who rely on the ACA for coverage to address several conditions arising from their premature birth.

They also have invited a woman who fought to obtain an abortion at the age of 16 who will speak about reproductive rights, a doctor who runs a clinic who speak about the ACA and the president of the Lawyers’ Committee for Civil Rights Under the Law.

In advance of that testimony, Graham will take action to set Oct. 22 as the date that the committee will vote to advance Barrett’s nomination to the full Senate floor. Senate Majority Leader Mitch McConnell says he will bring it to the Senate floor for several days of debate and a final vote soon after that.

Republicans on the panel, including Graham, said the 48-year-old Barrett is well qualified for the Supreme Court. She’s served for three years as a federal appeals court judge and has spent years teaching at Notre Dame Law School in South Bend, Indiana.

Democrats worked to avoid attacking the personal views of Barrett, a devout Roman Catholic who personally opposes abortion, during the proceedings, focusing instead on her writings and views on the law.

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