Barrett parries tough questions on Day Two of confirmation hearings

Barrett, 48, a former law professor and a judge of the 7th U.S. Circuit Court of Appeals, was deft in sparring with Democrats on the Senate Judiciary Committee, who repeatedly queried her about cases involving abortion rights or health care.

Despite the election-year atmosphere, and safety requirements due to the coronavirus, the hearing had a confrontational tone but never veered into the ugly displays that have marred previous Supreme Court confirmation hearings.

“Bottom line, I feel like it’s been a very good hearing,” said Sen. Lindsey Graham, R-S.C., the chairman of the committee.

Graham told reporters that the senators asked good questions and the nominee responded well.

“She’s done a good job,” Graham said. “So far, so good.”

No legal punditry

Barrett repeatedly said she had not discussed cases with President Donald Trump or anyone at the White House, and said that doing so would be a violation of judicial ethics. She also declined to wade into discussion of cases that may spring from the 2020 election or a pending challenge to the Affordable Care Act that will be heard in November.

“If I give off-the-cuff answers then I would be basically a legal pundit and I do not think we want judges to be legal pundits,” Barrett said. “I think we want judges to approach cases thoughtfully and with an open mind.”

Barrett told Graham that she, like the late Justice Antonin Scalia, for whom she once served as a clerk, was an “originalist.”

“I interpret the Constitution as a law, it’s not up to me to update it or infuse my own policy views into it,” she said.

But Democrats cited numerous writings and analysis to challenge that claim, although Barrett was largely successful in batting away Democrats’ charges that she would come to the court with an agenda.

She said she would consider recusing herself from any case arising from the Nov. 3 election, but would not commit to do so, as Democrats asked. Trump has said he wants all nine seats on the high court filled because the court may have to decide a case about the upcoming election.

Frustrating answers

A mother of seven, Barrett said the landmark 1973 Roe v. Wade case that legalized abortion was precedent, but would not say, as Scalia did, that it was wrongly decided. Barrett declined to give the ruling a thumbs up or down, saying any answer from a nominee might signal a judge “might tilt one way or another in a pending case.”

Her answers roiled Democrats.

“It’s distressing not to get a direct answer,” said Sen. Dianne Feinstein, D-Calif.

Democrats noted that Trump has explicitly said he would pick jurists for the high court who would overturn the right to abortion and the Affordable Care Act.

Barrett was nominated to fill the seat vacated by the late Justice Ruth Bader Ginsburg, and referenced Ginsburg’s confirmation hearing years ago to establish that she would not speak about specific cases or forecast how she might rule.

Barrett also said it was Supreme Court precedent that established the right to same-sex marriage, but refused to state a view on LGBTQ rights or Scalia’s dissent in the seminal 2015 case of Obergefell v. Hodges.

On an emotional topic about race, Sen. Richard Durbin, D-Ill., asked how she reacted to the protests that erupted when George Floyd was killed May 25 at the hands of a white policeman.

“As you can imagine, given I have two Black children, that was very, very personal for my family,” Barrett said.

Two of the judges’ seven children are from Haiti, and are adopted. She said her children realized that they could be exposed to similar brutality.

“I had to explain some of this to them,” Barrett said. “It’s a different one for us, like it is for Americans all over this country.”

Durbin later told reporters that he was moved by the judge’s answer to the question.

Aiming at Trump

Democrats did not attack Barrett personally, but instead attacked Trump for selecting a conservative jurist to do what Republicans have failed to accomplish in Congress: abolish abortion rights and the Affordable Care Act, commonly called Obamacare.

The ACA was passed in 2010 without a single Republican vote, and it has been subject to legal challenges and scores of repeal votes in Congress ever since.

As a law professor at Notre Dame, Barrett was critical of a 2012 Supreme Court decision and Chief Justice John Roberts’ reasoning to uphold the 2010 health care law.

Democrats cited that criticism to imply that Barrett was selected by Trump to consolidate a solid conservative majority on the court, one that could overturn the law, even if Roberts votes with the liberal wing of the court to uphold it, as he did in 2012.

Barrett said the constitutional challenges in 2012 are different than those that will come before the court in November. She said the case now before the court asks if the law can survive once its tax-penalty provision for those who refuse to purchase insurance is severed from the rest of the act. Congress in 2017 cut the penalty to zero.

Graham said South Carolina has been shortchanged by Obamacare, saying 35 percent of the federal funding goes to three states: California, New York and Massachusetts.

During the hearing, Trump tweeted that “Republicans will be providing far better Health care than Democrats, at far lower cost … And will always protect people with pre-existing conditions!!!!”

But the Trump administration and Republicans have yet to reveal their plan to replace Obamacare. And Democrats have made health care and the president’s handling of the pandemic the central focus of their campaign to win back the White House and control of the U.S. Senate.

“That’s the fight going into 2020,” Graham said of the election.

Slim majority

Republicans hold a slim majority on the committee, 53-47, and 51 GOP lawmakers have indicated they will vote for Barrett’s confirmation before the Nov. 3 election.

Several Republicans on the committee face competitive re-election campaigns, such as John Cornyn of Texas, Thom Tillis of North Carolina and Joni Ernst of Iowa.

Sen. Kamala Harris, D-Calif., who sits on the committee, is the nominee for vice president on the Democratic ticket. She used her time to lodge her opposition to Barrett’s confirmation and Trump’s pledge to pick a jurist to overturn Obamacare.

Harris said she is fighting for Felicia Perez, a lecturer at the University of Nevada, Reno, who suffers from ailments and disease that cost $460,000 a year, and would lose her coverage if the ACA is eliminated.

At times, the hearing devolved into campaign mudslinging.

Cornyn called politically motivated the implications by Democrats that Barrett would violate the oath of her judicial office and speak to the president about cases before the court, or how she would vote.

“I find that insulting,” Cornyn said. While senators had binders and notebooks in front of them, Cornyn asked Barrett to show the cameras what she had before her at the witness table. She held up a U.S. Senate notepad, the pages of which were blank.

He later told reporters he expected his opponent in Texas to raise campaign funds off the hearing. And Graham complained about the fundraising milestones of his South Carolina opponent.

Senators will resume their questioning of Barrett on Wednesday.

Contact Gary Martin at gmartin@reviewjournal.com or 202-662-7390. Follow @garymartindc on Twitter.