Senators give Barrett a promotion
As the hearings began on Monday, Democrats publicly argued that Barrett’s confirmation could be stopped or at least postponed if Americans flooded Capitol Hill with calls demanding they be put off.
But that prospect seemed to have evaporated by Wednesday, with Democrats all but conceding her confirmation is a done deal.
In one exchange about ethics, Sen. Sheldon Whitehouse (D-R.I.) informed Barrett that Supreme Court justices have fewer disclosure requirements about stock trades and travel paid for by outside groups, as compared to other federal judges and members to Congress.
After Barrett said she was unaware of the lower standard for justices, Whitehouse said: “Take a look at that when you’re up there.”
Senate Minority Leader Chuck Schumer’s office contributed to the air of inevitability surrounding Barrett by issuing a press release declaring that “Justice Barrett” had refused to say whether Medicare is constitutional.
“It seems that the fix is in,” Sen. Cory Booker (D-N.J.) said resignedly later in the day.
Barrett gets feisty
As she did Tuesday, Barrett spent most of the day Wednesday parrying senators’ questions rather than answering them, but in her second day being grilled she was feistier in her responses to Democrats seeking to put her on the spot.
Barrett tangled with Sen. Dick Durbin (D-Ill.) over a dissenting opinion she authored last year arguing that non-violent felons should not automatically lose their right to own a gun.
Durbin said that the 7th Circuit judge’s opinion adopted a framework that would have made it easier to take away a felon’s right to vote than his or her right to own a firearm. Barrett responded by accusing the Illinois Democrat of twisting her words.
“With respect, that is distorting my position,” Barrett said sharply. “It is a distortion of the case to say that I ever said that voting is a second-class right. That is not what it means. … I don’t have an opinion and have never expressed one on the scope of a legislature’s authority to take away felon voting rights.”
The judge and would-be justice then backed off a bit, saying it was possible the opinion wasn’t clearly phrased. “I did not intend and if my words communicated that, it was a miscommunication. I have never denigrated the right to vote,” Barrett said.
“I think it was, at best, a serious miscommunication,” Durbin replied.
Later, Barrett tried to turn the tables on Sen. Chris Coons (D-Del.) after he said her writings indicated she’d be too eager to overturn precedent.
“Bowers v. Hardwick held that certain sexual conduct between same-sex partners was illegal. It was criminalized and then Lawrence v. Texas overruled that,” Barrett said. “My guess is that you think Lawrence v. Texas was correctly decided, so I don’t think, Senator Coons, that your position would be that no precedent should ever be revisited.”
“Correct,” Coons replied. “I do think in grievously wrong cases it is appropriate to reach back.”
Grappling over Griswold
For a second day, Democrats pressed Barrett — without success — to share her views on a key, 55-year-old precedent critical to the Supreme Court’s privacy jurisprudence and to the legal underpinnings for abortion rights.
But the appeals court judge flatly refused to say whether she agreed with the high court’s 1965 decision in Griswold v. Connecticut, which guaranteed married couples the right to purchase contraceptives.
Coons noted that after joining the court Barrett’s mentor, Justice Antonin Scalia, said in an interview that he believed Griswold was mistaken. “Do you agree with him that Griswold was wrongly decided?” the Delaware Democrat asked.
Though her refusal to answer appeared to suggest the justice she clerked for and revered had acted unethically by weighing in on the subject, Barrett stood firm in refusing to say whether she agreed with the case’s holding or rationale. She did suggest emphatically, though, that Americans had little reason to worry about the availability of birth control.
“I think that Griswold is very, very, very, very, very, very unlikely to go anywhere,” the nominee said. “I think that it’s an academic question that wouldn’t arise, but it’s something that I can’t opine on.”
Democrats said that Barrett’s refusal to discuss the case was at odds with the approach of a string of nominees in recent decades including Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Elena Kagan, as well as Chief Justice John Roberts.
Roberts said at his hearings in 2005: “I agree with the Griswold court’s conclusion that marital privacy extends to contraception and availability of that.”
In addition to the birth control case, Barrett declined to say whether she agrees with the landmark 1973 abortion rights ruling that built on the Griswold precedent, Roe v. Wade, or the court’s 2015 decision legalizing same-sex marriage nationwide. She was willing to endorse the Supreme Court’s 1954 decision desegregating public schools, Brown v. Board of Education, and the 1967 case in which the court struck down laws against interracial marriage, Loving v. Virginia.
Barrett said she could endorse the interracial marriage case because it is “indistinguishable from Brown,” although some scholars have disputed that.
“I am stunned that you’re not willing to say an unequivocal, ‘Yes. It was correctly decided. I would’ve been in the majority,’” Sen. Richard Blumenthal (D-Conn.) said of her stance on Griswold.
Despite Barrett’s evasions on a slew of Supreme Court precedents, after the hearing concluded, Senate Judiciary Committee Chairman Lindsey Graham took issue with a reporter who suggested the nominee has been harder to pin down than past contenders.
“I couldn’t disagree with you more. I thought she was the most forthcoming of anybody I’ve seen,” Graham said. “I thought she really did explain what makes her tick as a judge. I don’t see how you could get much more out of her — appropriately.”
Where was Lochner?
With the Democrats’ nearly relentless focus on the Affordable Care Act, some other critical matters the Supreme Court could take up in the coming years got short shrift. Among them was the court’s approach to regulatory issues and hurdles that a conservative court could throw in the way of environmental and safety regulations likely to be priorities if Democrat Joe Biden wins the White House and Democrats control Congress.
The biggest fear among some liberals is that the court could declare a wide swath of federal regulations invalid by declaring them beyond the authority of the federal government to regulate — decisions that would be all but impossible for Congress to overrule.
That’s the scenario that played out early last century when the court began invalidating work and economic regulations, including limits on workers’ hours that the justices threw out in 1905 in Lochner v. New York.
Barrett briefly touched on that case Wednesday during friendly questioning by Sen. Josh Hawley (R-Mo.), although she soon found herself in territory she desired to avoid.
“The court was standing in the way I guess in Lochner itself in the way of reforms for workers,” she said, sounding skeptical about efforts by the justices in that era to rein in progressive legislation.
As she discussed that period, Barrett alluded to the fact that the Supreme Court’s resistance to those moves led a frustrated President Franklin Roosevelt to propose expanding the number of justices. That threat, which critics dubbed “court-packing,” seems to have prompted a retreat by the court in 1937 that cleared the way for federal wage, hour and worker-safety rules.
Barrett also briefly referred to that reversal, known as “the switch in time that saved nine.”
At that point, she looked up at Hawley and smiled meekly, evidently aware that some Democrats have proposed a similar plan to increase the size of the court in retaliation for the GOP’s hardball tactics. Democratic presidential nominee Joe Biden has been cagey about the idea, and Barrett seemed eager not to comment on it during her hearings.
A fifth freedom goes missing
Hawley was not the only Republican to lead Barrett to an awkward place during Wednesday’s questioning.
Although Barrett has been a law professor for nearly two decades and has spent more than three years on the federal bench, Sen. Ben Sasse (R-Neb.) managed to trip her up Wednesday with a rather basic question about the First Amendment. In a wind-up to what he called a “public catechism” about the Bill of Rights, he asked her to name the “five freedoms” protected by the first key passage in that document.
“Speech, religion, press, assembly … speech, press, religion, assembly,” she said, counting them off on her right hand. “I don’t know. What am I missing?”
“Redress or protest,” Sasse quickly chimed in, describing what the Constitution calls the right to “petition” the government.
“Sometimes softballs turn out not to be softballs,” Barrett said with a laugh near the end of the day Wednesday.
“You can have two glasses of wine tonight,” Graham said as he gaveled the session to a close, alluding to Barrett’s revelation that she enjoyed a glass of wine after the 12-hour-long day Tuesday.
“I plan on it,” the nominee replied, as she donned her face mask and exited to a closed-door committee session to discuss her FBI background check.