WASHINGTON, D.C. — When pressed Tuesday during the second day of her Supreme Court confirmation hearing, Judge Amy Coney Barrett declined to comment on whether she believed the high court had wrongly decided two key cases guaranteeing a right to abortion, despite her past public comments and writings condemning them.
“It would actually be wrong — a violation of the canons — for me to do that as a sitting judge,” Barrett said. “So if I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another on a pending case.”
Sen. Dianne Feinstein of California, the ranking Democrat, repeatedly pressed Barrett to give her opinion of the 1973 case, Roe v. Wade, and the 1992 case, Planned Parenthood v. Casey, which combined are the bedrock of Americans’ right to access abortion.
“I completely understand why you are asking the question, but again, I can’t pre-commit or say yes I’m going in with some agenda because I’m not,” Barrett said. “I don’t have an agenda. I have no agenda to try to overrule Casey.”
Judicial nominees have long refused to answer questions about their opinions on contentious cases. Barrett’s response to Feinstein was remarkably similar to what her mentor, the late Justice Antonin Scalia, told the Judiciary Committee in 1986.
But Barrett, unlike most recent high court nominees, has made several public statements about such issues in the past, including how the Supreme Court might change the parameters of abortion access.
As a Notre Dame law professor in 2013, Barrett signed a public letter criticizing the Roe decision and calling for “the unborn to be protected in law.” In 2006, she signed on to an ad that called for an “end to the barbaric legacy of Roe vs. Wade.”
Barrett said she signed onto the ad on the “way out of church,” and that it was “consistent” with the church’s views.
On Tuesday, Barrett stopped short of referring to Roe v. Wade as “settled precedent,” something past nominees have done, including Brett M. Kavanaugh.
Barrett would also not commit to recuse herself if disputes arose out of the election. President Donald Trump has said the Senate needed to move quickly to confirm his Supreme Court pick before the election because she could decide the outcome of a challenged 2020 election. Multiple Democrats have demanded that she recuse as a result.
“I can’t offer an opinion on recusal without short-circuiting that entire process,” she said.
Barrett said she did not commit to anyone about how she would vote on an election dispute, the Affordable Care Act or any other case.
“I have made no commitment to anyone — not in this Senate, not over at the White House — about how I would decide any case,” she said.
Democrats repeatedly raised the future of the Affordable Care Act, and how she might rule on a case scheduled to come before the court a week after the election. Barrett previously has criticized Chief Justice John G. Roberts Jr.’s reasoning in upholding the law. But she said Tuesday her past critiques were regarding aspects of the law that are not at issue in the November case and shouldn’t be seen as an indication of her opinion on the pending case.
“My personal views don’t have anything to do with how I would decide cases, and I don’t want anybody to be unclear about that,” Barrett said. “I assure you I am not hostile to the ACA. I am not hostile to any statute that you pass.”
Barrett also spoke about her frustration over how she had been portrayed in the media, saying she’s avoided coverage of her nomination for her mental health.
“You know you can’t keep yourself walled off from everything,” Barrett said, “and I’m aware of a lot of the caricatures that are floating around.”
Multiple news outlets have examined Barrett’s conservative Catholic faith and her membership in a controversial charismatic Christian group that former members and liberal critics have likened to a cult. The group has become a flashpoint in the nomination because of its teaching that men are the head of the family household.
Barrett said she and her husband didn’t have much time to consider the nomination but decided what would likely be an “excruciating” process was worth it.
“We knew that our faith would be caricatured; we knew our family would be attacked,” she said. “So we had to decide whether those difficulties would be worth it because what same person would go through that if there wasn’t a benefit on the other side. And the benefit, I think, is that I’m committed to the rule of law and the role of the Supreme Court and dispensing equal justice for all.”
One of the most memorable moments of the hearing came when Barrett was asked if she watched the video showing the death of George Floyd, a handcuffed Black man who died May 25 after a white police officer pressed a knee into his neck for several minutes.
“As you can imagine, given that I have two Black children, that was very, very personal for my family,” Barrett said.
Barrett said her 16-year-old daughter, Vivian, whom she adopted from Haiti, took the death hard because she realized she and her brother, John Peter, who was also adopted from Haiti, might be exposed to such brutality. “It was very difficult for her, and we wept together in my room,” Barrett said.
“I had to explain some of this to them,” she added. “I mean, my children to this point in their lives have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence. ... It’s a difficult one for us, like it is for Americans all over the country.”
There is very little Democrats can do to stop Barrett’s confirmation since Republicans appear to have the votes needed. So Democrats are hoping to use the hearings to highlight the possible threat her appointment would mean to the Affordable Care Act, which Republicans are asking the Supreme Court — for the third time — to invalidate. Democrats continued to use their hearing time to tell the stories of individual Americans who have benefitted from the 2010 law, also known as Obamacare.
“We have no magic panacea in terms of some kind of procedural tool,” Sen. Richard Blumenthal, D-Conn., told reporters. “We are going to fight like hell. We’ll use every tool that we have. But ultimately, we’re making our case to the American people through those real lives that are brought into the hearing room, and shown to be impacted.”