Top Takeaways: Day 2 of Amy Coney Barrett Confirmation Hearings

(Get caught up on Day 1 of the Amy Coney Barrett confirmation hearings here.)

Top Takeaways: Day 2 of Amy Coney Barrett Confirmation Hearings
(Screenshot from C-SPAN)

Judge Amy Coney Barrett spent a large part of the Tuesday’s hearings responding to (and, more often, evading) questions on health care (especially the Affordable Care Act), abortion rights, LGBTQ rights, checks and balances on the executive branch (especially as it pertains to President Trump), race relations and more.

Tuesday’s confirmation hearings began a Q&A period, in which each of the 22 senators on the Senate Judiciary Committee had 30 minutes for questions—making for a long day. This format will continue Wednesday. On Thursday, the final day, outside witnesses are expected to testify for and against Barrett’s nomination.

Here’s how Amy Coney Barrett answered on:

Health Care

Overall, Democrats remain squarely focused on health care (a winning topic for the party, as the 2018 midterms made clear). They have relentlessly tied Barrett’s confirmation with the fate of the Affordable Care Act (ACA)—set to go in front of the Supreme Court just a week after Election Day, on Nov. 10.

On Tuesday, Barrett—with the help of Republicans on the committee—sought to poke holes in Democrats’ determination to paint her as a right-wing extremist chosen to undermine civil rights and affordable health care.

“Judges cannot just wake up one day and say, ‘I have an agenda—I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world,” Barrett said.

Some context: In 2017, Barrett condemned Chief Justice John Roberts for having “pushed the Affordable Care Act beyond its plausible meaning to save the statute” in the 2012 case.

On Tuesday, Barrett defended this criticism, yet insisted she has “no hostility” toward the measure.

“I’m not on a mission to destroy the Affordable Care Act,” Barrett told Sen. Christopher Coons (D-Del.).

Barrett also evaded the question of severability—relevant since the Court must decide in the Nov. 10 arguments of the ACA case (California v. Texas) whether or not the individual mandate is inseverable from the entire ACA. (If the Court determines that the mandate is severable, the law will be able to stand.)

Barrett described severability this way:

“There’s a doctrine called severability which sounds like legalese but what it means is: Is it okay with a statute, could you just pluck that part out and let the rest of the statute stand? Or is that provision which has been zeroed out so critical to the statute that the whole statute falls. So really the issue in the case is this issue of severability and it’s not something I’ve ever talked about with respect to the Affordable Care Act. Honestly I haven’t written anything about severability that I know of, at all.”

Abortion Rights

Under questioning by those on both sides of the aisle—from Sen. Lindsey Graham (R-S.C.) to Sen. Dianne Feinstein (D-Calif.)—Barrett repeatedly evaded spelling out her views of Roe v. Wade.

When pressed by Feinstein, Barrett said she would not comment on potential rulings—“I can’t express views on cases. I can’t pre-commit”—ultimately invoking the name of Justice Ruth Bader Ginsburg, who famously said during her confirmation hearings in 1993: “No hints, no forecasts, no previews.”

But Barrett’s invocation of Ginsburg was not quite accurate, as Feinstein noted on Tuesday. In 1993, Justice Ginsburg made clear her views on abortion:

“This is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself. And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.”

Feinstein was visibly displeased by Barrett’s evasion, saying, “On something that is a major cause with major effects on over half of the population of this country who are women, it is distressing not to get a straight answer.”

Barrett responded, “I have no agenda to try and overrule Casey“—referring to a 1992 abortion case in which the Court reaffirmed Roe, but upheld most of the abortion restrictions in question, including informed consent and a 24-hour waiting period. “I have an agenda to stick to the rule of law and decide cases as they come.”

When Sen. Kamala Harris (D-Calif.) got her chance to question Barrett, Harris criticized the nominee’s refusal to share her opinion on abortion rights:

“Several times today, you have quoted Justice [Ruth Bader] Ginsburg’s testimony about not making predictions in future cases. However, she was far more forthcoming about the essential rights of women.”

“If the Senate considers filling the seat of Justice Ruth Bader Ginsburg, who was straightforward enough in her confirmation hearing to say that the right to choose is ‘essential to women’s equality,’ I would suggest that we not pretend that we don’t know how this nominee views a woman’s right to choose to make her own health care decision.”

On Tuesday, Barrett did break down the process of how an abortion case would be heard on the Court—beginning with a trial in a district court. If and when an abortion lawsuit did reach the Supreme Court, Barrett said:

“It would be the full judicial process. It would be briefs, oral argument, conversations with law clerks in chambers, consultation with colleagues, writing an opinion, really digging down into it. It’s not just a vote. You all do that, you all have a policy and cast a vote. The judicial process is different.”

And later, during a tense line of questioning from Sen. Amy Klobuchar (D-Minn.) Barrett said Roe v. Wade was not considered a “super-precedent”—decisions considered so fundamental that they cannot be overturned—calling it “not a case that everyone has accepted,” but adding: “But that does not mean it should be overruled.”

Next, responding to a question from Sen. Richard Blumenthal (D-Conn.), Barrett also evaded illuminating her stance on in vetro fertilization (IVF).

In 2006, Barrett and her husband, Jesse, had signed an ad that ran in the South Bend (Ind.) Tribune from an organization known then as St. Joseph County Right to Life. Now called Right to Life Michiana, the organization supports criminal charges against doctors who perform abortion and those who discard embryos as part of IVF treatmentsexecutive director Jackie Appleman told The Guardian.

Barrett’s stance on IVF has concerned many—such as Sen. Tammy Duckworth (D-Ill.) who used IVF to conceive her two daughters, now 5 and 2. In a letter sent to her colleagues on Oct. 2, Duckworth writes:

“I write to each of you today, and especially to my Republican colleagues who cooed and cuddled Maile when she first visited the Capitol, in hopes that you will fully consider the very real impact your vote on this unprecedented nomination could have on those Americans hoping to start families of their own.”

“I will … always remember how I felt yesterday—the deep knot of dread and anguish in the pit of my stomach—when I learned that President Trump’s Supreme Court nominee likely doesn’t believe my little Maile and my growing Abigail should have ever been born in the first place.

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LGBTQ Rights

When asked by Feinstein about her stance on LGBTQ rights and whether she agreed with the landmark 2015 ruling Obergefell v. Hodges, Barrett attempted to recuse herself and quell concerns, stating, “I have never discriminated on the basis of sexual preference.”

LGBTQ advocates were quick to point out: The correct term is “sexual orientation.” Anti-LGBTQ activists have used the term “preference” to suggest that gender identity and sexual orientation are choices, rather than a matter of biology.

Moreover, Barrett’s judicial record calls into question today’s assertion. Business Insider reports:

From 2015 to 2017, Barrett served on the board of trustees of Trinity Schools Incorporated, a group of Indiana private schools that in 2014 adopted a policy of barring children with unmarried parents from attending the school. … Because same-sex marriage was banned in Indiana at the time, this was clearly designed to bar the children of same-sex couples.

Election Disputes

When asked whether a president has the power to unilaterally delay an election, Barrett did not provide a direct answer, nor did she agree to recuse herself from any related Supreme Court cases:

“Senator, if that question ever came before me, I would need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion writing process. So if I give off-the-cuff answers I would be basically a legal pundit, and I don’t think we want judges to be legal pundits. We want them to look at cases with an open mind.” 

Rest assured: No president has the power to suspend the elections. But President Trump has admitted publicly that he is counting on Barrett’s ruling in his favor should a dispute arise in the November elections—which may explain why Republicans are barreling forward with Barrett’s confirmation process.

“Instead of giving the obvious and straightforward answer that of course the president cannot unilaterally delay the election, she dodged the question,” Senate Minority Leader Chuck Schumer (D-N.Y.) said in a statement. “Her refusal to stand up to the president on this obvious legal question is alarming, and indicates that she is more interested in pleasing President Trump than she would be in stopping his illegal behavior. Judge Barrett should immediately pledge to recuse herself from any cases involving the 2020 elections.”

Similarly, Sen. Klobuchar also brought President Trump’s directive to his supporters to “go into the polls and watch very carefully,” which has magnified anxiety that the election will soon become marred by violence and voter intimidation. Klobuchar asked Barrett if she believes, under federal law, if it is illegal to intimidate voters at the polls.

Barrett evaded, saying: “I can’t characterize the facts in a hypothetical situation, and I can’t apply the law to a hypothetical set of facts.” 

Barrett again evaded a rather simple question from Sen. Cory Booker (D-N.J.): “Should presidents … submit themselves to the peaceful transfer of power?”

He pressed her harder, but Barrett evaded answer, citing the question is a matter of “politics.”

Race Relations

When Sen. Dick Durbin (D-Ill.) asked Barrett if she had seen the George Floyd video, Barrett admitted she had and that it was “personal … given that I have two Black children.” (Note: There are a host of problems associated with adopting a child of a different race than you, which transracial adoptees have spoken on extensively.)

Durbin pressed Barrett more on racism; she responded, “Racism persists in our country.” but wouldn’t say racism is systemic in the U.S.

“Giving broader statements or making broader diagnoses about the problem of racism is beyond what I’m capable of doing as a judge,” she said.

That said, Barrett’s past rulings on race relations give some indication of her stance on racial issues: In 2019, she ruled to uphold the dismissal of a workplace discrimination lawsuit by Terry Smith, a Black Illinois transportation employee who was fired. Smith said he was called the n-word by his supervisor Lloyd Colbert—horrific, but not discrimination, said Barrett.

“The n-word is an egregious racial epithet,” she wrote in Smith v. Illinois Department of Transportation. “That said, Smith can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment.”

Not even Brett Kavanaugh has such extreme views: In 2013, Kavanaugh, then a federal appeals court judge, said just one use of the racial slur was enough to qualify as workplace discrimination: “In my view, being called the n-word by a supervisor … suffices by itself to establish a racially hostile work environment.”

Installing a Supreme Court Justice During an Election Year

When asked by Klobuchar whether it’s wise to confirm a Supreme Court justice so close to an election, Barrett yet again deflected, saying, “That is a question for the political branches.”

Climate Change and the Environment

Towards the end of the day, Barrett said that while she has read up on the climate change, she does not have “firm views” on the issue. 

“I’m certainly not a scientist,” she told Sen. John Kennedy (R-La.). “I mean, I’ve read things about climate change. I would not say I have firm views on it.”

Jamal Raad, campaign director of Evergreen Action, called her response—a boilerplate phrase often used by Republican legislators—“disqualifying.”

“It is a requirement that a Supreme Court Justice be able to review evidence to make a decision,” he said. “The scientific evidence of climate change is beyond reasonable doubt or debate, yet Amy Coney Barrett refused to acknowledge reality.”

Right now, the courts are weighing challenges to the weakening of tailpipe pollution standards for cars and trucks, efforts to eliminate safeguards to prevent oil and gas wells from polluting our air with the deadly climate pollutant methane, a rollback of limits on carbon pollution from dirty coal-fired power plants, and the gutting of protections from mercury and other toxic air pollution.

Our environment and efforts to address climate change are very much at stake with the current Supreme Court vacancy—and Barrett’s evasive non-answer should worry us all.

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Roxanne Szal (or Roxy) is the managing digital editor at Ms. and a producer on the Ms. podcast On the Issues With Michele Goodwin. She is also a mentor editor for The OpEd Project. Before becoming a journalist, she was a Texas public school English teacher. She is based in Austin, Texas. Find her on Twitter @roxyszal.