Senators on Wednesday had one more chance to press Supreme Court nominee Amy Coney Barrett on a range of issues including voting rights, health care, and executive power — questions she, once again, broadly declined to answer.
The second and final day of questions during Barrett’s confirmation hearing before the Senate Judiciary Committee went much like the first. On subjects such as the president’s ability to pardon himself, mail-in voting, and climate change, Barrett — like other judicial nominees before her — said she couldn’t provide a viewpoint because she needed to maintain impartiality in case she was asked to consider a related challenge if confirmed.
While Barrett’s approach is one that other nominees have taken in the past, she’s been more reluctant to comment compared to Justices John Roberts and Elena Kagan on Griswold v. Connecticut, a landmark case concerning the right to contraception.
“I think that Griswold is very, very, very, very, very, very unlikely to go anywhere,” Barrett said in lieu of providing her stance on the decision.
Here are some of the key moments from the third of four days of Barrett’s confirmation hearing.
Barrett says she hasn’t spoken out in support of the Affordable Care Act, though she’s criticized past decisions upholding it
During an exchange with Sen. Patrick Leahy (D-VT), Barrett said she’s never publicly supported President Barack Obama’s landmark health care law, but she acknowledged that, in her capacity as a law professor, she’s been critical of previous Supreme Court decisions upholding the ACA.
After the 2012 NFIB v. Sebelius decision, which preserved the ACA, she argued in a journal article that Justice John Roberts’s conclusion “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” Following the 2015 King v. Burwell case, which reaffirmed provisions of the ACA, she also noted that she agreed with Justice Antonin Scalia’s dissent.
When Leahy asked if she’d ever commented in favor of the ACA, Barrett said she had not. “No, I’ve never had a chance to weigh in on the policy question,” she said.
Barrett, during her hearing, has emphasized that she does not have an “agenda” against the ACA, which Democrats have highlighted as a law she could overturn if she is confirmed for the high court. “I am not here on a mission to destroy the Affordable Care Act,” Barrett has said.
Leahy’s question sought to draw attention to the existing record she has on the subject.
Barrett wouldn’t say whether Griswold v. Connecticut was rightly decided, which other nominees have commented on in the past
Griswold v. Connecticut, a 1965 Supreme Court case that guaranteed couples the right to contraception in the privacy of their own homes, was among the decisions that Barrett would not take a position on, signaling a break from past nominees who have affirmed that it was rightly decided.
“In my other capacity, I get to grade, but not in this particular capacity with respect to precedent,” she said when asked by Sen. Chris Coons (D-DE) if she thought Griswold was wrongly decided. “I think that Griswold is very, very, very, very, very, very unlikely to go anywhere.”
Although it’s common for nominees to withhold their opinions on various cases because they aren’t trying to signal how they’d rule on a potential challenge, Roberts and Kagan both commented on Griswold during their confirmations.
“I agree with the Griswold court’s conclusion that marital privacy extends to contraception,” Roberts said at his 2005 confirmation hearing.
Barrett wouldn’t take a position on climate change
Barrett on Wednesday, once again, declined to take a position on climate change, after saying she didn’t have “firm views” on the topic on Tuesday.
“I don’t think I’m competent to opine on what causes global warming or not,” Barrett said in response to a question from Sen. Richard Blumenthal, who asked if she thought humans contributed to 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 think I have views that are informed enough.”
Barrett’s answer spoke to a seeming unwillingness to break with Republicans’ approach to climate change, which some GOP lawmakers have repeatedly shied away from tying to human activity. Later in the hearing, she went on to describe climate change as a “very contentious matter of public debate.”
Barrett declined to comment on whether Trump could pardon himself
Barrett says she agrees that "no one is above the law," but does not say whether a president can pardon himself, as Trump has suggested: "So far as I know, that question has never been litigated.” https://t.co/eOGI4nbPU4 pic.twitter.com/3tOmXj5TwA— KPIX 5 (@KPIXtv) October 14, 2020
President Donald Trump has previously claimed that he could pardon himself — an act that no president before him has ever done. Barrett was asked, for a second time, on Wednesday about whether he’d legally be able to do this, an issue she declined to comment on because it’s something that could potentially come before the Supreme Court.
“That question may or may not arise, but that is one that calls for legal analysis of what the scope of the pardon power is,” she said. “Because it would be opining on an open question when I haven’t gone through the judicial process to decide it, it’s not one on which I can offer a view.”
According to NPR, there is currently no “legal consensus” about whether Trump has the ability to take such action. (Previously, a Justice Department memo had concluded in 1974 that President Richard Nixon could not pardon himself, and he was later pardoned by President Gerald Ford after he had already stepped down.)
Barrett agreed Wednesday that “no one is above the law.”
Lindsey Graham tried to appeal to Republican women
Graham, the head of the Senate Judiciary Committee, is currently locked in a contentious reelection fight in South Carolina, and he used the hearing this week to appeal to Republican women — a crucial contingent of voters he’ll need to win.
On both Tuesday and Wednesday, Graham emphasized repeatedly that Barrett’s nomination showed conservative women that there was a place for them on the country’s highest court — and called out the challenges he saw them facing.
“There’s one group in America that, I think, has had a hard time of it, and that’s conservatives of color and women conservatives,” he said. “This hearing to me is an opportunity to not punch through a glass ceiling but a reinforced concrete barrier around conservative women.” Barrett — whom Graham described as “unashamedly pro-life” — would only be the fifth woman to ascend to the high court if she’s confirmed.
According to a September Quinnipiac poll, Graham is trailing Democratic opponent Jaime Harrison by 10 points among likely women voters overall.