Barrett’s contentious confirmation hearing
Supreme Court nominee Amy Coney Barrett told the Senate Judiciary Committee this week that her personal views wouldn’t influence her judicial rulings, as Democrats attempted to cast her as an ideologue who would vote to strike down the Affordable Care Act and overturn Roe v. Wade. On the second day of Barrett’s confirmation hearing, the conservative appeals court judge declined to answer Democrats’ questions about her views on cases regarding gun control, abortion rights, same-sex marriage, and the Affordable Care Act. She presented herself as a textualist and originalist in the mold of her mentor, Justice Antonin Scalia, for whom she clerked in 1998. “A judge must apply the law as written, not as the judge wishes it were,” she said. In their questioning, Democratic senators particularly focused on a legal challenge to the health-care law that will be heard before the Supreme Court on Nov. 10. In a 2017 law article, Barrett sharply criticized Chief Justice John Roberts’ legal reasoning in upholding the law, which provides insurance to more than 20 million Americans and guarantees coverage to those with pre-existing conditions. Sen. Sheldon Whitehouse of Rhode Island said his constituents see Barrett “as a judicial torpedo aimed at their essential protections.” Barrett countered that she was “not hostile to the ACA.”
Democrats also zeroed in on Barrett’s views on abortion rights. The judge, a devout Catholic who personally opposes abortion, asserted she had no anti-abortion “agenda.” But she conceded she does not consider the 1973 Roe decision a “super precedent” that could not be overturned. She declined to say whether she would recuse herself from any case related to the presidential election.
Republicans focused on Barrett’s strong legal credentials and her experience as a working mother of seven. They painted opposition to Barrett—a member of the insular Christian group People of Praise (see Talking Points)—as based in religious bigotry. The Republicans made no pretense of doubt about the outcome of a confirmation that would cement a 6-3 conservative majority on the court. “This is probably not about persuading each other,” said Judiciary Committee Chairman Sen. Lindsey Graham of South Carolina. “All the Republicans will vote yes, all the Democrats will vote no.”
What the editorials said
The hearings “are revealing deep fault lines over the Supreme Court,” said The Wall Street Journal. Instead of querying Barrett about her legal views, Democrats have treated the hearings “like a campaign rally,” focusing on “a parade of policy horribles if she is confirmed.” It “distorts the role of a judge,” whose job is to interpret the law, not bend it to her will.
As Graham admitted from the outset, these hearings were “a charade,” said the San Francisco Chronicle. Republicans refused even a hearing to Judge Merrick Garland, President Obama’s well-qualified nominee, eight months before the 2016 election, but in “a raw exercise of power” are now ramming Barrett through even as voters are already choosing the next president. If Barrett enables the court’s right wing to overcome Roberts’ reluctance to render radical rulings, “she will do more harm to the institution than her tainted nomination already has.”
What the columnists said
Barrett is a “strong, capable, admirable woman,” said Monica Hesse in The Washington Post, but she’s no “feminist hero.” Ruth Bader Ginsburg was an icon because she opened doors for other women. It’s reasonable to fear that Barrett—nominated because of her social conservatism and what Graham called her “unabashedly pro-life” views—“might shut them behind her.”
The Democrats didn’t lay a glove on Barrett, said Michael Goodwin in the New York Post. They’d have “trashed” her like they did Brett Kavanaugh if they could. But faced with “an appealing Superwoman” who gave “flawless” answers, they were reduced to “finger-wagging scolds.” If they’d listened to Barrett instead of lecturing her, they would have gotten an education in the constitutional reality that “the court and the entire judiciary were designed to be different from the executive and legislative branches.”
Barrett’s supposed neutrality is a transparent “fiction,” said Eric Levitz in NYMag.com. Her claims to originalism amount to a “parlor trick”—one that recasts “the conservative movement’s unpopular agenda” as constitutionally mandated. Republicans are all for judicial activism, said Paul Waldman in The Washington Post, as long as it serves “to move American law in a radically more conservative direction.” Supreme Court conservatives gutted the Voting Rights Act passed by Congress, and now they’re targeting the highly popular ACA.
The Republicans have made a “trade-off” they now have to live with, said Emma Green in TheAtlantic.com. They accepted Trump’s “erosion of democratic norms,” and in return, he delivered conservative judges. The glittering prize of a 6-3 conservative Supreme Court majority “makes some of the damage worth it.” But with Trump heading for defeat and control of the Senate in jeopardy, the party may pay a heavy price.
Don’t believe the Democratic hysteria: Obamacare won’t be overturned, said Andrew McCarthy in NationalReview.com. The pending lawsuit presents “a weak challenge,” and the key issue is “severability”—whether the law can stand without the individual mandate now that Congress has reduced penalties to zero. Since the ACA is already operating without the mandate, it’s an “easy” case, with at least five or six votes for severability. The Democrats know this, but with Election Day at hand they decided to “use the high-profile hearings to campaign” and drive home Republican opposition to the popular act. The ACA may survive, said Ruth Marcus in WashingtonPost.com, but marriage equality, LGBTQ rights, and race-based admission policies could all be in peril. The best predictor of how Barrett might rule is to examine the record of her stated role model, Antonin Scalia—who in dissents argued forcefully against all these rulings. As a member of a dominant conservative majority, “his former clerk could translate his angry dissents into controlling law.”
Cover illustration by Howard McWilliam.
Cover photos from AP, KRT, Getty ■