WASHINGTON — Again and again, Judge Amy Coney Barrett insisted to senators Tuesday that she has no “agenda” on issues such as the Affordable Care Act, the future of abortion rights or same-sex marriage, and that she would be nobody’s “pawn” if confirmed to the Supreme Court.
“Do you think we should take the president at his word when he says his nominee will do the right thing and overturn the Affordable Care Act?” Sen. Amy Klobuchar, D-Minn., asked, displaying a poster of a President Donald Trump tweet criticizing the Supreme Court’s 2012 ACA decision.
“I can’t really speak to what the president has said on Twitter,” Barrett responded. “He hasn’t said any of that to me.” She added, “I am 100 percent committed to judicial independence from political pressure.”
The exchange captured the central tension of the Supreme Court hearing: Barrett insisted she will continue to be open-minded, but Trump had already told Americans his judicial picks will faithfully advance his agenda before he put her in the hot seat.
With only 21 days until the election, politics was infused in every piece of the second day of confirmation hearings, but Barrett held to the time-honored tradition of Supreme Court nominees by declining to weigh in on legal issues that could come before the court.
But unlike previous nominees, like the late Justice Ruth Bader Ginsburg who famously explicated the “no hints” standard in 1993, Barrett is the product of a movement and court selection process that makes those conservative causes a prerequisite for being nominated to the high court.
As a presidential candidate, Trump criticized Chief Justice John Roberts for upholding the ACA twice and said he’d pick judges who would rule otherwise. He said he’d nominate “pro-life” justices who would overturn Roe v. Wade. The GOP platform said Trump’s Supreme Court appointments would “enable courts to begin to reverse the long line of activist decisions including Roe, Obergefell, and the Obamacare cases.”
“So when we react to that, don’t act as if we’re making this stuff up,” Sen. Sheldon Whitehouse, D-R.I., said. “That is their stated objective and plan. Why not take them at their word?”
Further fueling Democratic criticisms, Barrett declined to say if she believes the Constitution or federal law allow a president to unilaterally delay a general election, which Trump has mused about openly. Barrett said rendering an opinion on such a matter would make her a “legal pundit.” Some scholars said in response that it is clear the Constitution gives Congress that power.
Sen. Ted Cruz, R-Texas, defended Barrett’s approach and noted that it was in line with prior Supreme Court nominees of both parties.
“You have declined to give an opinion on a matter that might be pending before the court,” he said. “That is of course the same answer every sitting justice has given when he or she was sitting in the same chair you are.”
He proceeded to ask her about her ability to speak a foreign language, play the piano and handle her young children during the pandemic lockdown.
Sen. Mazie Hirono, D-Hawaii, mentioned that Sen. Josh Hawley, R-Mo., has said he’d only vote for a court nominee who clearly believes Roe was wrongly decided and that he has indicated Barrett meets that standard. Barrett responded that she has made no promises to anyone.
Sen. Ben Sasse, R-Neb., expressed his frustration with Democrats’ tactics to “demonize” Republican-picked judges to the high court and appeals courts in recent years.
“I’ve been amazed at how many times the argument is: ‘American people, be really, really scared, the person sitting before us, obviously hates people and wants sick people to die and not have health care coverage.’ That’s sort of an argument that’s routine around here,” he said. “It’s been focus-grouped obviously.”
Sasse sarcastically suggested Barrett would not be the “queen of all health care” if confirmed to the court.
Barrett repeatedly said she has no “hostility” to the ACA and said that her past criticisms of the 2012 and 2015 rulings that upheld the ACA were irrelevant to the case headed to the Supreme Court on Nov. 10, which she said turns on the different legal question of “severability.”
She said those critiques have led some to believe that, if confirmed to the high court, she would “approach a case involving the ACA with hostility and look for a way to take it down to deprive people of their coverage under the ACA because I didn’t like it.”
“I’m not here on a mission to destroy the Affordable Care Act,” she told Sen. Chris Coons, D-Del. “I’m just here to apply the law and adhere to the rule of law.”
Sen. Kamala Harris, the Democrat’s vice presidential nominee, begged to differ, telling Barrett: “You’ve already opined on the constitutionality of the Affordable Care Act. And that position satisfied the president’s promise to only nominate judges who would tear down the Affordable Care Act.”
Barrett declined to commit to recusing herself from a potential lawsuit contesting the result of the 2020 election, given Trump’s remarks linking his desire to fill this vacancy to such a scenario, but she said she would consider the questions surrounding recusal seriously.
“I certainly hope that all members of the committee have more confidence in my integrity than to think I would allow myself to be used as a pawn to decide this election for the American people,” she told Coons.
It came shortly after Klobuchar told Barrett that she may not have made any commitments about possible election disputes, but “that is on the mind of the man who nominated you for this job.”