Amy Coney Barrett sidesteps Democratic probing in combative second confirmation hearing
Judge Amy Coney Barrett steered clear Tuesday of pointed questions on abortion, health care and the potential that President Trump could sabotage next month’s election, insisting in a marathon confirmation hearing that she can’t entertain any hypothetical scenarios as a Supreme Court nominee.
Barrett, a staunchly conservative federal judge picked by Trump to replace the late Justice Ruth Bader Ginsburg, justified the stone-walling by citing codes of conduct against locking herself to any particular opinion on issues she may have to weigh in on if confirmed to the top court.
“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," Barrett told the Senate Judiciary Committee after she was asked if Trump has the constitutional power to delay an election. “If I give off the cuff answers, then I would be basically a legal pundit, and I don’t think we want judges to be legal pundits."
Despite Barrett’s dodge, the Constitution explicitly states that only Congress has the power to postpone a presidential election.
Senate Judiciary Ranking Member Dianne Feinstein (D-Calif.), who asked the question about election delays, had her staff push back against Barrett’s non-answer in real-time.
“The answer should have been simple: He does not,” Feinstein’s staff tweeted.
Even Senate Judiciary Chairman Lindsey Graham (R-S.C.), one of Trump’s most loyal congressional allies, gave a more forthcoming answer than Barrett.
“We’re not going to delay the election. We didn’t delay it in World War II, we didn’t delay it during the Spanish flu," Graham told reporters outside the hearing room during a pause, contradicting Trump, who threatened over the summer to delay the election.
The hot button election delay topic wasn’t the only issue Barrett, 48, waffled on, as Republicans kept up their self-contradictory rush to confirm her nomination before Election Day.
She wouldn’t commit one way or the other to recusing herself from any potential disputes over the results of the Nov. 3 election because she claimed it’s “inappropriate” to pre-judge that issue.
“I can’t offer an opinion on recusal without short-circuiting that entire process," she said.
Trump has repeatedly said he expects the results of the election to end up before the Supreme Court because he falsely insists they will be “rigged” for Joe Biden because of expanded mail-in voting.
He has also said it’s critical to have Barrett confirmed by Nov. 3 so that she can be a deciding vote in his favor in any election-related challenges he may bring before the Supreme Court.
Beyond the election, Barrett similarly dodged when asked if she would recuse herself from the Supreme Court case brought by the Trump administration seeking to deem the Affordable Care Act unconstitutional.
“That’s not a question that I could answer in the abstract," she said.
The Supreme Court is slated to hear arguments on the Obamacare case on Nov. 10, likely making it the first one Barrett will weigh in on if she’s confirmed.
If the Supreme Court strikes down the law, millions of people would lose their health care coverage in the middle of a pandemic that’s already killed more than 215,000 Americans.
Sen. Kamala Harris (D-Calif.), Biden’s running mate, reached for Barrett’s sense of empathy by asking if she would take that “horrifying truth” into account if she’s given the chance to rule in the Obamacare case.
Barrett demurred.
“I can’t really give you that kind of commitment,” she said.
Barrett has previously criticized the constitutionality of Obamacare, making Democrats read between the lines of her stalling.
“(Trump) wants to make sure she’s gonna eliminate the Affordable Care Act and wants to make sure she’s there if there’s an election contest," Illinois Sen. Dick Durbin, a senior Democrat on the judiciary committee, told reporters outside the hearing room. "There’s no subtlety there.”
Trump stayed mum for most of the hearing.
But after Sen. Cory Booker (D-N.J.) got Barrett to acknowledge that there is “implicit” racial bias in the U.S. criminal justice system — something Trump’s long denied — he couldn’t hold back anymore.
“How dare ... @CoryBooker make false charges and statements about me in addressing Judge Barrett,” Trump tweeted while en route to Pennsylvania for a campaign rally. “Guy is a total loser!”
Barrett, a devout Catholic who has been vocally opposed to abortion, wouldn’t also say how she would handle any challenges to landmark reproductive rights precedents, like Roe v. Wade, which legalized abortion on a federal level.
“It’s distressing not to get a good answer,” a visibly frustrated Feinstein told Barrett.
Barrett countered that she essentially can’t answer any hypothetical questions because that’d be a “gross violation” of judicial independence.
“Judges can’t just wake up one day and say, ‘I have an agenda,’” she said.
But when Sen. Richard Blumenthal (D-Conn.) pressed her on advertisements she signed in 2006 and 2013 that called Roe v. Wade “barbaric” and “infamous" respectively, Barrett provided some insight into her personal views.
“While I was free to express my private views at that time, I don’t feel like it is appropriate for me anymore, because of the canons of conduct,” she said.
Apparently seeking to appease some of the concerns raised by his Democratic colleagues, Graham asked Barrett if she would be able to shelve her personal beliefs to adhere to the law.
“I can. I have done that,” she said. “I will do that still.”
Senators were expected to keep grilling Barrett on Wednesday, but, barring a major development, Republican leaders are confident they have the votes to confirm her nomination in a floor vote before Election Day. Barrett’s appointment would cement a 6-3 right-wing majority on the top court that’d reverberate for decades.
The GOP push for pre-election confirmation comes even though Republican senators spent the better part of 2016 blocking President Barack Obama’s Supreme Court nominee because they claimed that the Senate shouldn’t conduct such business in an election year.
Sen. Sheldon Whitehouse (D-R.I.) said the “hypocrisy” of the Republicans is explained by the fact that they know Barrett would deliver the goods they never managed to accomplish through legislation, including repealing Obamacare.
“When you find hypocrisy in the daylight, look for power in the shadows,” Whitehouse said.
