What to Watch for in the Amy Coney Barrett Confirmation Hearings

(Bloomberg) -- Though Republicans appear to have the votes and the unity to confirm Amy Coney Barrett to the Supreme Court -- with the potential to move U.S. law in a conservative direction for decades -- her Senate confirmation hearings still provide opportunities for Democrats to influence public sentiment.

The hearing begins Monday with opening statements by senators. Barrett addresses the committee and starts answering questions on Tuesday. Legal experts and people who know Barrett will also testify as the hearing continues Wednesday and, if needed, Thursday. The committee convenes at 9 a.m. each day. Live video will be available on the committee’s website, https://www.judiciary.senate.gov/.

Here are some lines of inquiry to watch for, and why they might come up:

Abortion, a land mine for both parties

Barrett has the clearest anti-abortion record of any nominee in decades. She signed a 2006 advertisement opposing abortion and wrote in 1998 that the procedure is “always immoral.” As a federal appeals court judge she consistently landed on the side of restricting abortion rights.

Like past nominees, Barrett will surely decline to directly answer whether she would vote to overturn Roe v. Wade, the 1973 ruling that legalized abortion in all 50 states but permitted restrictions in the second and third trimesters. Democratic senators can be expected to press her on whether she considers Roe v. Wade settled law -- a ruling that should stand, regardless of the views of current justices.

Could challenges to 2020 election results

In defending the need to seat a new justice as soon as possible, President Donald Trump has raised the possibility that the Supreme Court will have to decide challenges to the results of the Nov. 3 election. Trump’s comments have raised alarms that he might try to overturn a win by his Democratic challenger, former Vice President Joe Biden, and is counting on loyalty from his appointees should cases reach the high court.

Senator Chris Coons of Delaware, a Democrat who sits on the Judiciary Committee, said he asked Barrett during an introductory phone call whether she “would recuse herself from any election-related case” and that the nominee “made no commitment” to do so. Any answer by Barrett on whether she would participate in such a case may be interpreted as a signal about her level of political independence from the president.

U.S. law requires judges to refrain from participating in cases in which they have a conflict of interest or might be biased. But Supreme Court justices rarely recuse themselves, except when where there is a direct financial conflict or they were involved in a case at the lower-court level.

Obamacare argments one week after election

Most of the 2010 Affordable Care Act, or Obamacare, still exists, despite efforts by Trump and other Republicans to kill it. Key to its survival was a 5-4 Supreme Court decision in 2012 written by Chief Justice John Roberts, who said the law’s so-called individual mandate -- the requirement that all Americans buy health insurance, or face a penalty -- was a legitimate use of Congress’s taxing power.

In a 2017 paper published in the journal of the Notre Dame Law School, Barrett criticized Roberts’s reasoning as having pushed the law’s text “beyond its plausible meaning to save the statute.”

Trump and the Republican-controlled Congress later eliminated the tax penalty, rendering the individual mandate toothless. That prompted Republican-controlled states, with backing of the Trump administration, to challenge anew the constitutionality of Obamacare as a whole.

Barrett may be newly seated on the court when it hears arguments in that case on Nov. 10.

The importance of Supreme Court precedents

During the last confirmation process, of Trump nominee Brett Kavanaugh in 2018, Democrats got Kavanaugh to state that “as a general proposition, I understand the importance of the precedent set forth in Roe v. Wade.” But as some pointed out, that statement means little, since unlike lower federal courts, the Supreme Court can overturn its own own precedents.

Reining in federal agencies especially on the environment

Environmental groups say Barrett’s rulings and writings show she would close the courtroom door to groups challenging environmental harms and public safety dangers, while reining in federal agencies that want to address them. If confirmed, she appears likely to strengthen a conservative bloc of justices that takes a narrow view of the powers of federal agencies.

Especially on the environment, but also on other matters such as immigration, federal regulators have increasingly stepped in when Congress is deadlocked on issues.

In her three years as a judge on the 7th Circuit Court of Appeals, Barrett was considered a textualist -- someone who favors a strict reading of federal statutes -- in the mold of the justice she once clerked for, the late Antonin Scalia. In a 2014 Cornell Law Review article, she argued that Congress can’t delegate some of its constitutionally designated powers to the Executive Branch, a view that could make it harder for federal agencies to maneuver.

Barrett’s views on gun rights -- broader than Scalia’s?

In a 2019 dissent while on the appellate court, Barrett argued against blanket bans on convicted felons possessing firearms. There’s no evidence, she wrote, that those who commit nonviolent felonies are particularly dangerous. (The case before her involved a Wisconsin man convicted of mail fraud.)

Such bans are commonplace, and experts say Barrett’s view is a minority one among judges. Even Scalia, in a 2008 ruling striking down the District of Columbia’s broad prohibition of gun possession, said the case’s outcome “should not be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons.”

Democrats may press Barrett on the breadth of her reading of the Second Amendment to the Constitution.

Her failure to wear a mask at White House ‘super-spreader’ event

An otherwise celebratory event, Barrett’s introduction at the White House as Trump’s nominee is now being labeled “a super-spreader event” for the novel coronavirus. At the Sept. 26 ceremony, few guests wore masks, and attendees mingled and sat in close proximity to one another both indoors and outdoors. Photos showed Barrett, maskless, with Trump and others in the Oval Office.

Within days, Trump and his wife, as well as several top staffers, senators and military officials who were present, tested positive for Covid-19, the disease caused by the virus.

“We had a super-spreader event in the White House,” Anthony Fauci, the U.S.’s top infectious-disease expert, said on Friday. “And it was in a situation where people were crowded together, were not wearing masks. So the data speaks for themselves.”

Personal judgment isn’t necessarily the same as legal judgment. But Barrett, who is said to have had Covid-19 earlier this year, could be asked about her own choices that day. University of Notre Dame President Rev. John I. Jenkins, who was at the event representing Barrett’s alma mater, has apologized to his campus community for not wearing a mask or social distancing during the event, and contracting the virus.

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