Democrats on the Senate Judiciary Committee rarely strayed from their focus on what Amy Coney Barrett’s confirmation to the Supreme Court would mean for health care and abortion — although it became clear they wouldn’t get many illuminating answers from her anyway.
The Democrats’ strategy in the hearing, mainly aimed at voters in the ongoing presidential and Senate races, meant that Barrett’s views on a swath of legal issues went unexamined or unchallenged during the most widely watched part of the confirmation process.
There were a few quick questions Tuesday about her views on immigration policy, but none on major executive actions about so-called Dreamers, who were brought to the U.S. illegally as children. That issue has reached the high court twice in the past four years and could again in the next presidential administration no matter who is elected.
When New Jersey Democratic Sen. Cory Booker asked if Barrett thought it was wrong to separate children from parents to deter immigrants from coming to the United States, she replied: “That’s been a matter of policy debate and obviously that’s a matter of hot political debate in which I can’t express a view or be drawn into as a judge.”
When Booker asked again, she said: “I’m not expressing assent or dissent with the morality of that position; I just can’t be drawn into a debate about the administration’s immigration policy.”
Barrett was asked only a few times about her views on race and policing. But she faced no questions about her view on qualified immunity, a court-created doctrine that protects police officers from lawsuits for misconduct, which Democrats sought to end in their policing legislation this summer.
And Democrats asked about global warming, an issue that Barrett told California Sen. Kamala Harris, the Democratic vice presidential nominee, was too contentious a policy issue for her to weigh in on.
But Democrats passed on a chance to probe Barrett’s thoughts on areas of administrative law that could affect how the government agencies implement sweeping environmental laws such as the Clean Air Act.
Delaware Democratic Sen. Chris Coons, at the end of his second round of questioning, hinted at those unexplored areas. He told Barrett that he feared her expected confirmation would bring in “a new chapter of conservative judicial activism unlike anything we’ve seen in decades.”
“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,” Coons said.
The narrower focus helped Democrats sharpen their message in the weeks before an election to determine the president and control of the Senate. Health care and abortion are more visceral to voters than the contours of regulatory law.
Minnesota Democratic Sen. Amy Klobuchar even broke the fourth wall of the televised hearings several times, asking the American people to vote if they didn’t like what they were hearing — a nod to the seeming understanding in the Senate that Republicans had the votes to confirm Barrett as long as the members of their caucus avoided hospitalization or death from COVID-19.
But that small range of topics also helped Barrett avoid the kind of misstep that might lead to a big viral moment on social media or otherwise derail her confirmation. And the federal appeals court judge over the course of the two days of questions seemed to gain momentum when it came to not giving an answer to Democratic senators.
Barrett had voiced approval during the hearing of the Supreme Court’s decision in Brown v. Board of Education that ended segregation, saying that it was not in danger of being at issue before her as a justice because of the unlikelihood that a state or Congress would pass a law to return to segregation.
But she declined to answer when Coons pressed her about the Supreme Court’s decision in Griswold v. Connecticut, that married couples had a right to privacy in the use of contraceptives. Other nominees to the Supreme Court discussed that case, Coons said, which forms a basis for later decisions on abortion rights and LGBT rights.
Barrett did not answer even though she said that “Griswold is very, very, very, very, very, very unlikely to go anywhere” because “a state legislature would have to pass a law prohibiting the use of birth control, which seems, you know, shockingly unlikely.”
“So I think that it’s an academic question that wouldn’t arise, but it’s something that I can’t opine on, particularly because it does lie at the base of substantive due process doctrine, which is something that continues to be litigated in courts today,” Barrett said.
California Democratic Sen. Dianne Feinstein asked Barrett if she agrees with originalists who say that the Medicare program is unconstitutional.
“I can’t answer that question in the abstract, you know, because as we’ve talked about, the no hints, no forecasts, no previews rule. I also don’t know what the arguments would be,” Barrett said. “But, if I did consider it, it would be in the context of an actual case or controversy.”
Connecticut Democratic Sen. Richard Blumenthal asked Barrett if she believes that human beings cause global warming.
“I don’t think that my views on global warming or climate change are relevant to the job I would do as a judge, nor do I feel like I have views that are informed enough and I haven’t studied scientific data,” Barrett replied.
When Harris asked about voting discrimination, Barrett replied: “I’m not going to express an opinion because these are very charged issues. They have been litigated in the courts and so I will not engage on that question.”
And Vermont Democratic Sen. Patrick J. Leahy got Barrett to agree that nobody is above the law in America, then asked her if a president has “an absolute right to pardon himself for a crime.”
Barrett didn’t answer. “That question may or may not arise, but it is one that calls for a legal analysis of what the scope of the pardon power is. So because it would be opining on an open question when I haven’t gone through the judicial process to decide, it’s not one in which I can offer a view,” Barrett said.
Democrats pressed Barrett on her evasions, but not too aggressively. President Donald Trump’s nominee remained unflappable for the two-day stretch before the committee. Republicans plan a committee vote Oct. 22, followed quickly by a confirmation vote on the Senate floor before the Nov. 3 election.
Speaking to reporters after the hearing, Judiciary Chairman Lindsey Graham of South Carolina said Barrett “was the most forthcoming of anybody I’ve seen,” compared with four previous Supreme Court confirmations he attended as a committee member.
“She talked about originalism, and always said when a case in controversy is still under litigation I can’t go there, but I thought she really did explain what makes her tick as a judge, and I don’t see how I could get much more out of her appropriately,” Graham said.
“I think you saw somebody, whether you agree with or not, was very capable in terms of her intellect and had a good disposition,” Graham said. “That doesn’t mean you’ll vote for her, but I was proud of the performance she gave in terms of showcasing who she is under very difficult circumstances.”
Michael Macagnone contributed to this story.