Nominee stays silent on views
Feinstein pushes, but Barrett won’t talk abortion, guns, LGBT rights
WASHINGTON — If Sen. Dianne Feinstein was hoping to get Judge Amy Coney Barrett to telegraph her opinions Tuesday on such legal hot buttons as abortion, LGBT rights and guns, she was disappointed.
The Supreme Court nominee cited two women who were confirmed to the high court, Justice Elena Kagan and the late Justice Ruth Bader
Ginsburg, in saying it would be inappropriate for her to comment on any issue that could come before her on the bench. Both justices, Barrett said, refused to weigh in on specific case law during their confirmation hearings before the Senate Judiciary Committee.
California Sen. Kamala Harris, who had watched Feinstein and other Democrats
try and fail either to rile Barrett or get her to hint of how she would rule as a Supreme Court justice, asked the judge only a handful of questions during her 30 minutes near the end of the day’s hearing.
Instead, the Democratic vice presidential candidate hammered on what the confirmation of a conservative
judge such as Barrett could mean to the country when it comes to the future of health care and a woman’s right to an abortion.
“The Affordable Care Act depends on this seat,” said Harris, who questioned Barrett via a video link to the hearing room.
Feinstein, the ranking Democrat on the committee, expressed dissatisfaction with Barrett’s answers earlier in the day, but kept the exchanges polite — even as Barrett declined to state her views on issues that the Democratic base views as essential, including the Roe vs. Wade decision legalizing abortion and the court’s 2015 ruling legalizing samesex marriage.
With virtually no hope of blocking Barrett’s confirmation, Democrats are at least hoping to convince the American electorate that it’s part of a push by Republicans including President Trump to accomplish in the Supreme Court what they have failed to achieve in the political arena. In particular they have focused on health care, arguing among other things that Republicans are hurrying to seat Barrett to replace Ginsburg by the time the court hears a case Nov. 10 challenging the constitutionality of the Affordable Care Act.
Barrett remained steadfast in declining to engage in hypotheticals or discussion of case law outside of opinions she has written as a judge on the U. S. Seventh Circuit Court of Appeals or articles she wrote as a University of Notre Dame law professor. Several Democrats, however, were able to dive deeply into those writings, especially one in which she questioned the Supreme Court’s 2012 ruling upholding the Affordable Care Act, and pressed her on her belief that the Constitution should be read as it was understood when it was written.
And sometimes, Barrett’s refusal to answer direct theoretical questions provided fodder for Democrats.
Barrett declined to say whether a president could unilaterally delay a general election, one of the nightmare scenarios that progressives fear Trump is pondering as he trails in the polls and voices baseless charges of widespread fraud in voting that is already under way in many states. Trump floated the possibility of a delay in a tweet in July, but constitutional scholars have said it’s clear in the law that the president has no right to order one.
In answering Feinstein’s question on the topic, Barrett said she would have to hear arguments and consult the law before giving an opinion.
Feinstein’s Twitter account later highlighted the exchange, saying, “The answer should have been simple: He does not.”
Feinstein began her questioning on abortion, which Democrats are also casting as a health care issue, though the senator did not make that connection. Barrett, who as a professor signed a 2006 newspaper advertisement that criticized Roe vs. Wade, declined to discuss her views on abortion case law and whether, as her mentor former Justice Antonin Scalia believed, the court wrongly decided the case in 1973.
“I can’t express views on cases or precommit to approaching a case in any particular way,” Barrett said.
Feinstein did not ask Barrett about the 2006 advertisement or a second one that she signed in 2013. Under later questioning, Barrett said she had signed the ad at her church, when she was a private citizen, to express her belief in the “value of human life from conception to natural death.” She said that personal belief would not affect her judicial opinions.
In dodging Feinstein’s efforts to pin her down, Barrett cited the “pithy” words of Ginsburg at her 1993 confirmation hearings: “No hints, no previews, no forecasts.”
“Everybody calls it the Ginsburg rule because she stated it so concisely,” Barrett said.
But Harris said that although Ginsburg had not said how she would vote on the Supreme Court during her hearings, she made it clear that she supported abortion rights.
Let’s “not pretend that we don’t know how this nominee views a woman’s right to choose to make her own health care decision,” Harris said of Barrett.
Feinstein, who sponsored a sincelapsed 1994 assault weapons ban and has repeatedly introduced legislation to revive it, failed to draw out Barrett on gun control. She asked the appeals court judge about a dissent she wrote on gun ownership, in which Barrett argued that governments can’t ban felons from buying guns unless they can prove those felons are dangerous.
“What I said in that opinion, I stand by,” Barrett said.
Feinstein also asked Barrett about samesex marriage, as a photo of the 2008 wedding in San Francisco of lesbian rights activists Del Martin and Phyllis Lyon was displayed behind her in the hearing room in the Hart Senate Office Building.
The Supreme Court upheld samesex marriage’s legality in its 2015 ruling. But Justices Clarence Thomas and Samuel Alito, who dissented in that 54 decision, signaled in an opinion last week they would be willing to overturn that decision if given the chance. Critics of Barrett’s fear she would join them, given that she has spoken openly about her alignment with the judicial philosophy of Scalia, who also dissented.
“I have not ever discriminated on the basis of sexual preference, nor would I ever discriminate on the basis of sexual preference,” Barrett said of her personal views.
Democrats seized on the answer to note that the preferred term is sexual orientation, as preference connotes that choice is involved — an issue that matters in litigation over gay rights.
When she was asked about it later, Barrett said, “I certainly didn’t mean and would never mean to use a term that would cause any offense in the LGBT community. So if I did, I greatly apologize for that.”