• Sat. Apr 17th, 2021


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Barrett, Revealing Little, Suggests She Might Preserve Health Law

Judge Amy Coney Barrett, President Trump’s Supreme Court nominee, pushed back on Wednesday against Democrats’ charge that she would be a certain vote to overturn the Affordable Care Act, suggesting that she had no “animus to or agenda for” the law.

On the final day of questioning at her confirmation hearings, Judge Barrett stopped short of directly indicating how she might rule when the court hears a challenge to the health care law next month. But she strongly suggested that she might be inclined to leave portions of it intact, despite Mr. Trump’s outspoken desire for the court to strike it down.

The pushback stood out as a rare window of potential insight into Judge Barrett’s thinking in hearings that otherwise consisted mostly of evasions and nonresponses to Democrats seeking to portray her as a conservative extremist bent on catering to Mr. Trump’s legal whims.

It came as Republicans and Democrats began making what amounted to their closing arguments in the highly politicized fight over elevating Judge Barrett, 48. Members of both parties conceded that her confirmation, and the establishment of a 6-to-3 conservative majority on the Supreme Court, was now all but inevitable.

After days of downplaying Judge Barrett’s lifestyle and legal views as irrelevant, Republicans openly lauded the ascension of the type of unquestioningly conservative figure they have dreamed of since the death of Justice Antonin Scalia in 2016. It promised a lasting legacy for Mr. Trump and held out the potential for a badly needed boost to their political campaigns and chances of holding the Senate majority.

“This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology, and she is going to the court,” said Senator Lindsey Graham, Republican of South Carolina and the committee’s chairman. “A seat at the table is waiting on you, and it will be a great signal to all young women who want to share your view of the world that there is a seat at the table for them.”

Democrats took a far more sinister view. They rejected Judge Barrett’s comments on the Affordable Care Act as misleading, but indicated they were beside the point anyway. By replacing Justice Ruth Bader Ginsburg, the leader of the court’s liberal wing, with a textualist and originalist in the vein of Justice Scalia, the court’s direction would be clear and swift on health care access, abortion rights, gay marriage and questions of corporate power.

“My core concern here, your honor, is that your confirmation may launch a new chapter of conservative judicial activism unlike anything we’ve seen in decades,” said Senator Chris Coons, Democrat of Delaware. “We’ve mostly been talking about the Affordable Care Act and privacy-related cases, but if that’s true, it could touch virtually every aspect of modern American life.”

“I pray that I’m wrong,” he continued. “I hope that I am.”

In a sign that the nomination was already churning ahead, Mr. Coons and others began to state how they planned to vote. The split was predictably partisan, and Judge Barrett’s was destined to be among the most narrow confirmation votes in the court’s history.

Republicans planned to move quickly on Thursday to begin advancing her nomination, a process expected to culminate as soon as Oct. 26 with a vote to confirm her just about a week before Election Day — and two weeks before the court hears the case on Affordable Care Act.

Democrats struggled again on Wednesday to move Judge Barrett, an appeals court judge and Notre Dame law professor, off carefully stated generalities. She batted away questions about Mr. Trump’s ability to pardon himself, about voting by mail and about her views of politically charged Supreme Court precedent in cases involving abortion, gay marriage and voting rights.

She would not share her views about climate change, calling it “a very contentious matter of public debate” — a position starkly at odds with the established scientific consensus — nor say whether she thought it was wrong to separate immigrant children from their parents at the border to deter unauthorized entries.

Each time, she cited a policy adopted by previous Supreme Court nominees not to comment in their confirmation hearings in any way that would tip their hand on future cases that might come before the court.

“Judges do not have campaign platforms,” she said. “As I’ve said number of times through the hearing, judges should stay out of politics. Their jurisprudential philosophies are not designed to yield particular results.”

Credit…Anna Moneymaker for The New York Times

Democrats were visibly frustrated.

“It’s OK for a judge not to close his or her eyes to reality,” an exasperated Senator Patrick J. Leahy, Democrat of Vermont, said amid a terse exchange over the impact of the Supreme Court’s 2013 ruling gutting the Voting Rights Act.

Senator Amy Klobuchar, Democrat of Minnesota, let out an audible sigh when Judge Barrett refused to take a position on whether mail-in voting was “an essential way to vote for millions of Americans right now” amid a deadly pandemic.

Judge Barrett called it a “matter of policy on which I can’t express a view.”

“To me that just feels like a fundamental part of our democracy,” Ms. Klobuchar shot back, before moving on.

Senator Richard Blumenthal, Democrat of Connecticut, pushed hard to solicit Judge Barrett’s legal assessment of Obergefell v. Hodges, the 2015 decision that granted same-sex couples the right to marry. Justices Clarence Thomas and Samuel A. Alito Jr., who like Justice Scalia dissented from the decision, urged the court this month to reconsider the ruling.

“Your honor,” Mr. Blumenthal continued, “think of how you would feel as a gay or lesbian American to hear that you can’t answer whether the government can make it a crime for them to have that relationship, whether the government can enable people who are happily married to continue.”

Judge Barrett was not pleased.

“You’re implying that I’m poised to say that I want to cast a vote to overrule Obergefell, and I assure you I don’t have any agenda,” she said. “I’m not even expressing a view in disagreement with Obergefell. You’re pushing me to try to violate the judicial canons of ethics.”

She made similar arguments around the Affordable Care Act, but in friendly exchanges with Republicans that appeared intended to allay voters’ fears about the fate of the law, she was a bit more forthcoming.

The case coming before the court next month has to do with a single provision of the sprawling law that requires individuals to purchase insurance. Republicans who brought the suit have argued that because Congress zeroed out a penalty for violating the mandate, it is now unconstitutional and so is the whole law.

But Judge Barrett implied on Wednesday that she might be inclined to preserve the broader law because of the legal doctrine of severability, which generally allows the court to strike down a single provision of a law and retain the balance of it.

“The presumption,” Judge Barrett said, “is always in favor of severability.”

Prodded by Mr. Graham, she also agreed that the court’s preference would always be to preserve a statute enacted by Congress and signed by the president.

“If you can preserve a statute, you try to, to the extent possible,” he asked.

“That is true,” she responded.

Credit…Hilary Swift for The New York Times

Democrats remained unimpressed. They spent the day citing academic articles and legal commentary by Judge Barrett, including a 2017 article in which she criticized Chief Justice John G. Roberts Jr. for his 2012 opinion upholding the mandate and the health law. And they once again pointed to repeated statements by Mr. Trump, who has explicitly said he would choose a nominee, in part, to take down the law.

“There is a political agenda here, and whether you are privy to it — part of it — notwithstanding, it has to do with the Affordable Care Act,” said Senator Richard J. Durbin, Democrat of Illinois. “Unfortunately, that is the orange cloud over your nomination.”

Republicans repeatedly came to her defense.

When Democrats, in the face of Judge Barrett’s evasive answers, began drawing parallels to Justice Scalia, her mentor, Senator Josh Hawley of Missouri accused them of trying to “Bork” her by tying her to “the worst readings and most draconian misinterpretations” of Justice Scalia’s views. The reference was to Robert H. Bork, whose 1987 nomination to the Supreme Court was brought down by Senate Democrats.

“I was under the impression that you were a different person than Justice Scalia and that you have, in your own words, ‘your own mind,’” he said ironically. “Is that fair to say?”

“That is fair to say,” Judge Barrett replied.

For all the partisan wrangling, there were human moments as well.

As the hearing wound toward a conclusion, Senator Joni Ernst, Republican of Iowa, asked Judge Barrett if she had advice for young women.

“One thing I have often told my own daughters is that you should not let life just happen to you or sweep you along,” Judge Barrett said. “Make decisions. Be confident. Know what you want,” she said. “And go get it.”

Luke Broadwater and Adam Liptak contributed reporting.