Dems warn of ‘ ac­tivism’ on court

Amy Coney Bar­rett will al­most cer­tainly fill seat

USA TODAY International Edition - - FRONT PAGE - Richard Wolf USA TO­DAY

WASH­ING­TON – Democrats warned Wed­nes­day that Supreme Court nom­i­nee Amy Coney Bar­rett’s al­most cer­tain confirma­tion could launch a new chap­ter of con­ser­va­tive ju­di­cial ac­tivism, though the fed­eral ap­peals court judge sought to por­tray her­self as a main­stream ju­rist with­out any agenda.

As the Se­nate Ju­di­ciary Com­mit­tee hear­ing drew to­ward a close Wed­nes­day, sev­eral Democrats ac­knowl­edged Bar­rett would be confirmed to suc­ceed the late liberal As­so­ciate Jus­tice Ruth Bader Gins­burg, most likely by a party­line vote be­fore Elec­tion Day.

“It seems that the fix is in,” Sen. Cory Booker, D- N. J., said.

That would be in time to hear the lat­est le­gal chal­lenge to the Afford­able Care Act, which Democrats used as their lead­ing ar­gu­ment against Bar­rett, 48, of In­di­ana. The Trump ad­min­is­tra­tion and states gov­erned by Repub­li­cans seek to top­ple the law af­ter Congress elim­i­nated its tax penalty for those who lack in­sur­ance.

“They are bringing this case to the court, and you are go­ing to be sit­ting on the court,” said Sen. Amy Klobuchar, D- Minn.

If Democrats were rec­on­ciled to Pres­i­dent Don­ald Trump get­ting a third Supreme Court jus­tice and creat­ing a 6- 3 con­ser­va­tive ma­jor­ity, they were not san­guine about the prospects.

“Your confirma­tion may launch a new chap­ter of con­ser­va­tive ju­di­cial ac­tivism,” said Sen. Chris Coons, D- Del. “It could touch vir­tu­ally ev­ery aspect of mod­ern Amer­i­can life.”

Bar­rett, a Notre Dame Law School pro­fes­sor and pro­lific scholar, sailed through an­other day of ques­tion­ing with the same blank notepad be­fore her. With the help of Repub­li­cans on the panel, she tried to al­lay fears that she might up­end set­tled law on is­sues rang­ing from health care and abor­tion to gun con­trol and vot­ing rights.

Af­ter Sen. Shel­don White­house, D- R. I., walked her through what he de­scribed as the Supreme Court’s six- year cam­paign to crimp the power of pub

“I have never den­i­grated the right to vote.”

Amy Coney Bar­rett

lic em­ployee unions, she said, “I think that judges should not have projects, and they should not have cam­paigns. They should de­cide cases.”

Sen. Lind­sey Gra­ham, R- S. C., opened the day by try­ing to show that Bar­rett is un­likely to fa­vor over­turn­ing the Afford­able Care Act. He and oth­ers elicited re­sponses from her in­di­cat­ing that a Supreme Court show­down Nov. 10 over the law may erase the man­date that peo­ple buy in­sur­ance but not the rest of the law.

Sev­er­ing an un­con­sti­tu­tional pro­vi­sion rather than strik­ing down the law it­self “serves a valu­able func­tion of try­ing not to undo your work,” Bar­rett told Sen. Dianne Fe­in­stein, D- Calif., the rank­ing Demo­crat on the panel.

Gra­ham asked lead­ing ques­tions about is­sues dear to Democrats, in­clud­ing pre­serv­ing Roe v. Wade’s abor­tion right and the high court rul­ing al­low­ing same- sex mar­riage in 2015. If those prece­dents came back to the court, he said, Bar­rett would take into ac­count the de­gree to which Amer­i­cans rely on the Supreme Court’s ear­lier judg­ment.

“I hope it’s OK that you can be pro­life and ad­here to your faith and still be con­sid­ered by your fel­low cit­i­zens wor­thy of this job,” Gra­ham said.

That still left plenty to ar­gue about. Sen. Dick Durbin, D- Ill., sug­gested that Bar­rett rates gun rights as more

im­por­tant than vot­ing rights, based on her ap­peals court dis­sent fa­vor­ing a non­vi­o­lent felon’s right to gun own­er­ship. In many states, felons can­not vote or face re­stric­tions on that right.

“I have never den­i­grated the right to vote,” Bar­rett said, ac­cus­ing Durbin of dis­tort­ing her record. “I think vot­ing is a fun­da­men­tal right.”

But when Demo­cratic vice pres­i­den­tial nom­i­nee Ka­mala Har­ris asked Bar­rett to com­ment on the court’s 2013 rul­ing that weak­ened the Vot­ing Rights Act or its rul­ing in April block­ing ex­panded mail bal­lot­ing in Wis­con­sin during the COVID- 19 pan­demic, she re­fused.

“These are very charged is­sues,” Bar­rett said. “They have been lit­i­gated in the courts. And so I will not en­gage on that ques­tion.”

Democrats had only lim­ited suc­cess with an age- old tac­tic: seek­ing to put the nom­i­nee on record in fa­vor of es­tab­lished rights and prior rul­ings. She en­dorsed the court’s de­ci­sions on school in­te­gra­tion and in­ter­ra­cial mar­riage but would not say the same about the right to birth con­trol, gay and les­bian pri­vacy rights or same- sex mar­riage.

“You are push­ing me to try to vi­o­late the ju­di­cial canons to offer ad­vi­sory opin­ions, and I won’t do that,” Bar­rett told Sen. Richard Blu­men­thal, D- Conn.

“I think a lot of Amer­i­cans will be scared by the idea that peo­ple who want to sim­ply marry or have a re­la­tion­ship with the per­son they love could find it crim­i­nal­ized, could find mar­riage equal­ity cut back,” Blu­men­thal re­sponded.

Bar­rett

HAN­NAH GABER/ USA TO­DAY

Judge Amy Coney Bar­rett en­ters the hear­ing room on the third day of Se­nate Ju­di­ciary Com­mit­tee confirma­tion hear­ings.

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