What to watch for in Senate’s Barrett hearings
Democrats will have chance to sway public opinion
Although Republicans appear to have the votes and the unity to confirm Amy Coney Barrett to the Supreme Court — with the potential to move U.S. law in a conservative direction for decades — her Senate confirmation hearings still provide opportunities for Democrats to influence public sentiment.
The hearing begins Monday with opening statements by senators. Barrett addresses the committee and starts answering questions Tuesday. Legal experts and people who know Barrett will also testify as the hearing continues Wednesday and, if needed, Thursday. The committee convenes at 9 a.m. EDT each day. Live video will be available on the committee’s website, www.judiciary.senate.gov.
Here are some lines of inquiry to watch for, and why they might come up:
ABORTION: Barrett has the clearest antiabortion record of any nominee in decades. She signed a 2006 advertisement opposing abortion and wrote in 1998 that the procedure is “always immoral.” As a federal appeals court judge, she consistently landed on the side of restricting abortion rights.
Like past nominees, Barrett will surely decline to directly answer whether she would vote to overturn Roe v. Wade, the 1973 ruling that legalized abortion in all 50 states but permitted restrictions in the second and third trimesters. Democratic senators can be expected to press her on whether she considers Roe v. Wade settled law — a ruling that should stand, regardless of the views of current justices.
POSSIBLE CHALLENGES TO ELECTION RESULTS: In defending the need to seat a new justice as soon as possible, President Donald Trump has raised the possibility that the Supreme Court will have to decide challenges to the results of the Nov. 3 election. Trump’s comments have raised alarms that he might try to overturn a win by his Democratic challenger, former Vice President Joe Biden, and is counting on loyalty from his appointees should cases reach the high court.
Sen. Chris Coons of Delaware, a Democrat who sits on the Judiciary Committee, said that he asked Barrett during an introductory phone call whether she “would recuse herself from any election-related case” and that the nominee “made no commitment” to do so. Any answer by Barrett on whether she would participate in such a case may be interpreted as a signal about her level of political independence from the president.
U.S. law requires judges to refrain from participating in cases in which they have a conflict of interest or might be biased. But Supreme Court justices rarely recuse themselves, except when where there is a direct financial conflict or they were involved in a case at the lower-court level.
OBAMACARE ARGUMENTS: Most of the 2010 Affordable Care Act, or Obamacare, still exists, despite efforts by Trump and other Republicans to kill it. Key to its survival was a 5-4 Supreme Court decision in 2012 written by Chief Justice John Roberts, who said the law’s so-called individual mandate — the requirement that all Americans buy health insurance, or face a penalty — was a legitimate use of Congress’s taxing power.
In a 2017 paper published in the journal of the Notre Dame Law School, Barrett criticized Roberts’ reasoning as having pushed the law’s text “beyond its plausible meaning to save the statute.”
Trump and the Republican-controlled Congress later eliminated the tax penalty, rendering the individual mandate toothless. That prompted Republican-controlled states, with backing of the Trump administration, to challenge anew the constitutionality of Obamacare as a whole.
Barrett may be newly seated on the court when it hears arguments in that case Nov. 10.
SUPREME COURT PRECEDENTS: During the last confirmation process, of Trump nominee Brett Kavanaugh in 2018, Democrats got Kavanaugh to say that “as a general proposition, I understand the importance of the precedent set forth in Roe v. Wade.” But as some pointed out, that statement means little, since unlike lower federal courts, the Supreme Court can overturn its own precedents.
GUN RIGHTS: In a 2019 dissent while on the appellate court, Barrett argued against blanket bans on felons possessing firearms. There’s no evidence, she wrote, that those who commit nonviolent felonies are particularly dangerous. (The case before her involved a Wisconsin man convicted of mail fraud.)
Such bans are commonplace, and experts say Barrett’s view is a minority one among judges.