Bench Memos

Law & the Courts

On Day Two, Democrats Attack Everything but Judge Barrett’s Actual Record

Supreme Court nominee Judge Amy Coney Barrett speaks during her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., October 13, 2020. (Brendan Smialowski/Reuters)

On the second day of Judge Amy Coney Barrett’s nomination hearings, on which each senator had the first opportunity to question her, the Democratic members of the Senate Judiciary Committee all but confirmed that the judge is eminently qualified to serve on the Supreme Court. On the second day of Judge Amy Coney Barrett’s nomination hearings, on which each senator had the first opportunity to question her, the Democratic members of the Senate Judiciary Committee all but confirmed that the judge is eminently qualified to serve on the Supreme Court. The hearing featured fearmongering, attacks on the Justice Department and President Trump, Congress’s fights over the Affordable Care Act, and even a bizarre rant about dark money and “The Scheme” from Senator Whitehouse.

But over eleven hours of questioning, Democrats offered no substantive criticisms of Judge Barrett’s record or her qualifications. The nominee had to repeatedly invoke the Ginsburg standard as they tried to elicit her views on controversial issues likely to come before the Court. Failing that, they reverted to rank speculation and baseless conclusions.

Take healthcare. Senator Cornyn aptly summarized the Democrats’ position: “It’s the ACA vs. ACB I guess.” As they did yesterday, Democratic senators sought, without a shred of evidence, to paint Judge Barrett as determined to deprive millions of people of their health insurance. Because Republicans in Congress and the Trump administration oppose Obamacare, they argued, Judge Barrett must want to strike the law down too. To support this view, Democrats pointed to a 2017 book review written by then-Professor Barrett. In that book review, Barrett never once opined on the constitutionality of the ACA as a whole. Nor did she offer any preview of how she would rule in a case about Obamacare as a judge.

Responding to the Democrats’ baseless line of attack, Judge Barrett made her position clear. “I am not hostile to the ACA,” she said during questioning by Senator Chris Coons. She emphasized that “I’m not here on a mission to destroy the Affordable Care Act. I’m here to apply the law and adhere to the rule of law.” She did offer a description of the pending Obamacare case before the Court with a level of nuance that left her challengers looking confused and eager to change the subject.

Judge Barrett’s record of judicial opinions and academic publications offers no support for the idea that she will strike down the ACA. In fact, the only “evidence” of her views on the ACA comes from a moot court, an academic role-playing exercise. During the mock exercise, Judge Barrett and others voted to uphold Obamacare. Of course, a moot court doesn’t indicate how Judge Barrett would rule in a real case. But the point is that the one available hint about the judge’s legal thinking directly contradicts the Democrats’ hyperbolic assertions.

Democrats also tried and failed to depict Judge Barrett as a threat to racial equality, voting rights, and democracy itself. Pressed by Senator Richard Durbin on police brutality and race, for example, Judge Barrett poignantly noted that she “wept together” with her black daughter while watching the news about George Floyd’s death and acknowledged that, tragically, “racism persists in our country.” Senators Amy Klobuchar, Coons, and others suggested that President Trump plans to use the Supreme Court to suppress voting rights and remain in power regardless of the result of the November election. They insinuated that the president nominated Judge Barrett to help ensure these outcomes and that she must therefore recuse herself from any election-related cases.

Judge Barrett responded firmly, but continued to adhere to the Ginsburg standard, saying that “no matter what anyone else may think or expect . . . I have never signaled to anyone about how I would rule” in any case, and that she would “not be used as a pawn to decide this election for the American people.”

Indeed, perhaps the strongest theme from the second day was Judge Barrett’s brilliance and her commitment to the Constitution and the separation of powers. She answered hours of questions and discussed the nuances of various areas of law, all without any notes. And throughout it all, her commitment to judicial independence was unwavering. “I don’t have an agenda to overrule” any case or to impose any policy views, she said. “I have an agenda to stick to the rule of law.”

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