Dems warn of ‘ activism’ on court
Amy Coney Barrett will almost certainly fill seat
WASHINGTON – Democrats warned Wednesday that Supreme Court nominee Amy Coney Barrett’s almost certain confirmation 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 confirmed to succeed the late liberal Associate Justice Ruth Bader Ginsburg, most likely by a partyline vote before Election Day.
“It seems that the fix is in,” Sen. Cory Booker, D- N. J., said.
That would be in time to hear the latest legal challenge to the Affordable 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 confirmation 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 prolific 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 Affordable 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 offer 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 find it criminalized, could find marriage equality cut back,” Blumenthal responded.
Judge Amy Coney Barrett enters the hearing room on the third day of Senate Judiciary Committee confirmation hearings.