Art of the dodge: Amy Coney Barrett’s 11 hours in the Senate hot seat
Supporters circulated a photo to highlight her agile intelligence and to show, as the Republican National Committee put it, that she offered senators “a master class on the Constitution.”
But that empty notepad also provided a metaphor for how Barrett came ready to give away nothing of her legal thinking and offered a master class of a different sort.
As Barrett declined to answer substantive questions from Senate Judiciary Committee members, she deftly gave little material for any probing follow-up. She offered short, minimal answers and, unlike past nominees, avoided elaborating on some general legal principles.
Her pattern — in a confirmation ritual known for bobbing and weaving — was reinforced by the pattern of many senators. Republicans and Democrats engaged in lengthy speeches designed more for the election season and their political agendas, than true scrutiny of the nominee who would succeed liberal Justice Ruth Bader Ginsburg and possibly transform the Supreme Court for a generation.
Texas Republican Sen. Ted Cruz spent nearly his entire 30-minute allotted time expounding on his own legal views and then said, “Judge Barrett, I’m not going to ask you to respond to any of that. But I do want to shift to a different topic, which is a bit more about you personally, your background.”
His question: “Do you speak any foreign languages?” She said the French she studied in school was rusty.
“How about music, do you play any instruments?” Cruz then asked.
Piano, Barrett said, quipping with Cruz about their children’s piano lessons.
Barrett, who is on her way to a swift confirmation by the Republican-dominated Senate, was nothing if not patient throughout. Her expression barely shifted, with eyes focused, lips pursed, a portrait of seriousness. She kept her hands in her lap and rarely gestured.
Only in a few instances did she sound defensive, as when Connecticut Democrat Sen. Richard Blumenthal tried to pin her down on her legal position on Roe v. Wade, in light of personal statements she had made against abortion.
As Blumenthal pressed her to say whether she believed the 1973 milestone that gave women nationwide a right to abortion was correctly decided, she said, “What I said was that Roe held that the Constitution protects a woman’s right to terminate a pregnancy, that (the 1992) Casey reaffirmed that holding and indeed many cases after Casey have affirmed that holding again … So I think we might be talking past each other because the statements that I signed were statements of my personal beliefs.” The Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, affirming Roe, said government may not put an “undue burden” on a woman seeking an abortion.
She told senators she sets aside her personal beliefs and preferences as she decides cases.
Barrett also declined to give her views on the 2015 gay rights landmark, Obergefell v. Hodges, that declared same-sex couples have a constitutional right to marry. She declined to comment on the Trump administration’s current litigation to eviscerate the 2010 Affordable Care Act, which brought new health coverage to more than 20 million Americans. She minimized her past criticism of Supreme Court rulings, from 2012 and 2015, upholding Obamacare.
“I have no hostility to the ACA or any other law,” she said.
At several points she invoked a mantra from Ginsburg’s 1993 Senate hearings when she vowed not to give any hints about her possible rulings once on the high court. But Ginsburg had notably commented on abortion rights in 1993, saying the constitutional right to end a pregnancy was “central to a woman’s life, to her dignity.”
“It’s a decision that she must make for herself,” Ginsburg told senators in her 1993 hearing. “And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.”
The replacement of Ginsburg with Barrett will transform the bench into a 6-3 conservative majority and offer the potential to return America’s high court to another era, rolling back guarantees for individual rights, such as abortion, and reversing government regulatory efforts, such as over the environment, labor and public safety.
Barrett, who would be Trump’s third appointee to the court, told senators that she would bring “no agenda” to the bench.
“I have an agenda to stick to the rule of law and decide cases as they come,” she said.
Umpires and stare decisis
Senators have long faced frustration in drawing out answers from Supreme Court candidates. And nominees have long struggled with how to answer without saying anything that would breach judicial independence or, more immediately, cost them votes toward confirmation.
“The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court,” Chief Justice John Roberts wrote in 1981 as a Reagan administration lawyer assisting with the nomination of Justice Sandra Day O’Connor, “but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments.”
When Roberts himself was before senators in 2005, he addressed legal principles at length without revealing specific positions — with memorable assertions such as, “Judges are like umpires. Umpires don’t make the rules, they apply them … Nobody ever went to a ball game to see the umpire.”
Roberts was more willing to expound on his view of the legal concept of “stare decisis,” under which the justices adhere to their precedents. He said some cases could be reversed over time as justices chipped away at the cornerstones of a case, weakening its principle. Yet Roberts added, “I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness.”
In her past writings, Barrett has suggested traditional adherence to precedent should not tightly bind justices in situations when a justice might regard a precedent as inconsistent with his or her interpretation of the Constitution.
“If a question comes up before me about whether Casey or any other case should be overruled,” Barrett told California Democratic Sen. Dianne Feinstein Tuesday morning, “I will follow the law of stare decisis … applying it as the court has articulated it, applying all of the factors: reliance, workability, being undermined by later facts in law. … I will follow the law.”
Barrett was elusive on whether she would recuse herself from cases involving the 2020 election — an area of inquiry because Trump has suggested he might need her vote.
“I think this will end up at the Supreme Court,” Trump said last month about the possibility of a presidential ballot controversy. “And I think it’s very important that we have nine justices.”
To Vermont Democratic Sen. Patrick Leahy, Barrett said she would weigh the circumstances of individual cases as she decided the recusal issue. “I can’t offer a legal conclusion right now about the outcome of the decision I would reach,” she said.
Barrett then added, “I have had no conversation with the President or any of his staff on how I might rule in that case. It would be a gross violation of judicial independence for me to make any such commitment or for me to be asked about that case and how I would rule. I also think it would be a complete violation of the independence of the judiciary for anyone to put a justice on the court as a means of obtaining a particular result.”