Judge Amy Coney Barrett, Donald Trump’s nominee to the US supreme court, promised to keep an “open mind” when considering cases before the court during a final round of questioning on Wednesday, as Republicans declared her confirmation all but assured despite Democrats’ forceful opposition.
Members of the Senate judiciary committee on Wednesday attempted to dig deeper into the conservative judge’s views on the Affordable Care Act, which expanded healthcare cover to millions more Americans under Barack Obama’s signature piece of legislation, and abortion rights.
Also on the agenda in this week’s hearings are same-sex marriage, gun control and any potential cases related to the result of the looming 2020 election.
But Barrett, in the tradition of recent supreme court nominees, avoided answering directly about how she would rule on some of the most important issues that the court may be asked to address.
Playing down the conservative positions she expressed in legal writings as an academic and in personal commitments she made as a private citizen, the 48-year-old appellate court judge she had no political agenda and would approach every case with “an open mind”.
Barrett has been nominated to replace Ruth Bader Ginsburg, a liberal icon who died last month. The confirmation hearings have halted all other business on Capitol Hill as Republicans, eager to cement a conservative majority on the court for at least a generation, rush to confirm Barrett before the November election.
Opening the session on Wednesday, after nearly 12 hours of questioning the day before, Senator Lindsey Graham, a Republican of South Carolina and the chairman of the committee, celebrated Barrett’s almost inevitable confirmation as a momentous victory for conservatives, and particularly for conservative women, who he said have faced “concrete” social and cultural barriers in public life that do not exist for liberal women.
“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,” Graham said. “She is going to the court.”
In moments of personal reflection during the hearings, Barrett suggested that mockery of her association with People of Praise, the insular Catholic community inspired by charismatic Christianity, as well as commentary about her large family, which includes two adopted children from Haiti, has been painful. But she said while faith was important to her personally, it would not influence her decisions on the supreme court bench.
But she repeatedly declined to say how she would rule on a challenge to Roe v Wade, the landmark 1973 supreme court decision that established a woman’s right to an abortion. But she declined again on Wednesday to characterize the decision as a “super-precedent” that must not be overturned.
Democrats continued to press their case that her confirmation would imperil the Affordable Care Act, also known as Obamacare, arguing that Donald Trump and Republicans were rushing to confirm her before the court hears arguments that could decide the fate of the healthcare law next month.
The line of questioning did little to elicit a response from Barrett, who maintained that she was not “hostile” to the law. But it did force Republicans on the defensive on healthcare, an issue central to the race for control of the White House and the Senate.
Republican state officials and the Trump administration are effectively seeking to invalidate the ACA based on a flaw with part of it. The supreme court will hear arguments in the case on 10 November, just one week after the election.
Though she did not say how she would rule, Barrett expressed skepticism of this view in an extended exchange with Graham. In such cases, the judge said “the presumption is always in favor of severability” – a legal doctrine applied to congressional litigation that she said requires a court to strike down one element while preserving the rest of the law.
Democrats have urged Barrett to recuse herself from the case next month – as well as potential challenges to the result of the election – because Trump has repeatedly said that his judicial nominees will dutifully advance his agenda. In a vague reference to the president’s tan, Senator Dick Durbin, a Democrat from Illinois, suggested that Trump’s words cast an “orange cloud” over Barrett’s nomination.
Barrett declined to say whether she would recuse herself in either instance, only that she would consider the matter. Again, she maintained her independence from the executive branch and the president who nominated her, first to a seat on the US court of appeals for the seventh circuit, and then to the supreme court.
Pressed by Senator Patrick Leahy, a Democrat of Vermont, Barrett would not say whether the president was allowed to pardon himself. She stated unequivocally that that “no one is above the law”, though cautioned that the supreme court has no real recourse to ensure that Americans, including the president, followed its orders.
In an exchange with Senator Kamala Harris, the Democratic vice presidential nominee, Barrett accepted that the coronavirus was infectious, smoking caused cancers but would not say whether climate change was real, stating that it remained a “very contentious matter of public policy”. There is overwhelming scientific consensus that human activity is driving climate change. In the same line of questioning, Barrett declined to say whether voting discrimination exists.
Republicans rushed to the judge’s defense, accusing Democrats of impugning her integrity as a judge.
Recalling the 1987 nomination of Robert Bork, which was derailed amid deep opposition from liberal groups and Democrats who warned that his confirmation would tilt the court to the right on key issues such as religion and abortion, senator Josh Hawley, a Republican from Missouri, decried the “attempted Borking of Amy Barrett”.
Republicans touted her adherence to “originalism”, an approach championed by Barrett’s mentor, the late justice Antonin Scalia, that aims to interpret the constitution as it was written centuries ago. Confronted by Senator Chris Coons, a Democrat of Delaware, with several of Scalia’s more controversial opinions, including a scathing dissent in a landmark case establishing the right for same-sex couples to marry, Barrett said that they shared a philosophy but would not always reach the same conclusions.
“I hope you’re not suggesting I don’t have my own mind,” she said.
But Coons was not persuaded, and announced that he would not vote to confirm her.
“Nothing has alleviated my grave concerns that rather than building on Justice Ginsburg’s legacy of advancing privacy and equality and justice, … in fact, you will take the court in a very different direction,” he said.
Owing to the proximity of the election, and the near-certainty of the outcome, many senators have used the nationally televised hearings as an opportunity to amplify their campaign messages. Graham, locked in a tight race for re-election in South Carolina, was effusive in his praise of the conservative judge, who Republicans hope will energize their base while appealing to suburban women leaving the party over Trump.
“I have never been more proud of the nominee than I am of you,” Graham said to Barrett. “This is history being made, folks.”
Away from the hearing room, the Democratic presidential nominee Joe Biden told donors that Barrett “seems like a decent person” but said it was “an abuse of power” to confirm her to the supreme court before the November election.
The committee is expected to vote on 22 October, as Trump pressures the Senate to confirm Barrett before the November election.