Barrett to Tell Senate That Making Policy Isn’t Court’s Role

(Bloomberg) -- Supreme Court nominee Amy Coney Barrett will cast herself as a jurist committed to avoiding policy making and keeping her personal views out of rulings as she opens her Senate confirmation hearing on Monday.

In prepared remarks released by the White House, Barrett said she tries to reach the result required by the law, “whatever my own preferences might be.”

Barrett’s four-page remarks seem designed to appeal to Republicans who’ve warned about “activist” judges making policy from the federal bench, while also calming Democrats who fear she’ll rule against abortion rights if confirmed to the Supreme Court. The draft was first reported by the Washington Post.

Reflecting on her roughly three years as a judge on the 7th Circuit Court of Appeals, Barrett will stress that she has carefully considered whether she would believe “the decision was fairly reasoned and grounded in the law,” even if “I would not like the result.”

“That is the standard I set for myself in every case, and it is the standard I will follow as long as I am a judge on any court,” Barrett is set to say.

The 22-member Senate Judiciary Committee is set to begin Barrett’s confirmation hearing on Monday. Democrats argue the entire process should be put aside until after the Nov. 3 election, based on Republicans’ decision to block President Barack Obama’s 2016 nomination of Judge Merrick Garland to fill a seat that came open in February of that year.

`Not Outcome-Based’

Barrett will argue that her role is to referee disputes, not set policy.

“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” Barrett plans to say. “The public should not expect courts to do so, and courts should not try.”

Barrett is also set to pay tribute to the court’s first two female justices -- Sandra Day O’Connor and the late Ruth Bader Ginsburg, the woman whose seat she’s been nominated to fill.

Republicans have praised Barrett’s temperament, with Senator Ben Sasse of Nebraska saying on Sunday that her approach is “not outcome-based.”

“The reason I think that Amy Barrett is a rock star and should be on the court is that she’s very clear about her jurisprudence,” Sasse, a member of the Judiciary Committee, said on “Fox News Sunday.” “She’s an originalist and she’s a textualist, which means when she puts on her black robe in the morning, she knows what it means to be a judge, which is to cloak your personal preferences.”

Approach to Precedent

Democratic Senator Chris Coons of Delaware, another member of the Judiciary Committee, said he was concerned Barrett would be willing to overturn earlier court rulings.

Coons said on “Fox News Sunday” that Barrett has made it “very clear” she would vote to restrict abortion rights and toss out the Affordable Care Act, the 2010 health care law enacted under former President Barack Obama. Barrett’s views on “overturning long-settled precedent are not just extreme, they’re disqualifying,” he said.

If seated, Barrett would hear a case challenging the constitutionality of the Affordable Care Act the week after the election.

The top Democrat in the Senate, Minority Leader Chuck Schumer, on Sunday called on Barrett to commit to recusing herself from that case as well as any election-related disputes that come before the high court after Nov. 3 balloting. In making the request, he basically conceded that Democrats can’t stop Barrett’s confirmation.

Senator Mazie Hirono, a Democrat from Hawaii, said on CNN’s “State of the Union” that Republicans’ commitment to confirming Barrett before the election is driven by the health-care case and the years-long GOP effort to end Obamacare.

“They want her on that court to hear the Affordable Care Act case on Nov. 10, one week after the election, so that she can strike it down,” Hirono said. “This nominee poses a clear and present danger.”

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