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Barrett Accuses Blumenthal of ‘Pushing Me to Violate the Judicial Code of Ethics’ during Confirmation Hearing

Judge Amy Coney Barrett testifies during her confirmation hearing on Capitol Hill in Washington, D.C., October 14, 2020. (Michael Reynolds/Reuters)

Supreme Court nominee Amy Coney Barrett accused Senator Richard Blumenthal (D., Conn.) of “pushing me to violate the judicial code of ethics” during her third day of confirmation hearings on Wednesday after the senator pressed her to share her views on a number of Court precedents.

Though Barrett has repeatedly declined to “grade” precedents, saying the judicial code of ethics prohibits her from doing so, the Democrat asked Barrett if she believed Brown v. Board of Education, Loving v. Virginia, and Griswold v. Connecticut were correctly decided.

The Court ruled in those cases that racial segregation in public schools was unconstitutional, laws banning interracial marriage were unconstitutional and that the right of married couples to buy and use contraceptives without government restriction was protected by the constitution, respectively.

Barrett said she believed Brown and Loving were correctly decided, and was willing to say so because she believes what she has “said in print, either my scholarly work or in judicial opinions is fair game” and she had expressly said in the past that Brown was correctly decided. She declined to express a view on Griswold. 

These are fundamental cases and I’m asking your legal position,” Blumenthal said. “I want you to keep in mind how many people are listening and watching because they may take a message from what you say.”

Barrett reiterated that her position is “whether a question is easy or hard” that she could not answer it, and said she would be surprised if people believed birth control would be criminalized because she had declined to answer that question. 

The Connecticut senator pushed forward, asking if Lawrence v. Texas — which ruled that a Texas law criminalizing certain sexual conduct between two consenting adults of the same sex was unconstitutional — was rightly decided. Barrett again said she could not “grade precedent” and give it a “thumbs up or a thumbs down,” borrowing a phrase from Justice Elena Kagan.

“I can’t give a yes or a no and my declining to give an answer doesn’t suggest disagreement or agreement,” she said.

Blumenthal then asked about Obergefell v. Hodges, which found that same-sex couples had a constitutional right to marry. 

“Every time you ask me a question about whether a question was correctly decided or not I cannot answer that question because I cannot suggest agreement or disagreement with precedents of the Supreme Court,” she said. “All of those precedents bind me now as a Seventh Circuit judge and were I to be confirmed I would be responsible for applying the law of stare decisis to all of them.”

After Blumenthal asked the judge to think of how she would feel as a gay or lesbian American “to hear that you can’t answer whether the government can make it a crime for them to have that relationship, whether the government can enable people who are happily married to continue that relationship” Barrett pushed back, saying the senator was implying she would cast a vote to overrule Obergefell, though she “can assure I don’t have any agenda.”

“I’m not even expressing a view in disagreement of Obergefell. You’re pushing me to try to violate the judicial Canons of ethics and to offer advisory opinions and I won’t do that,” she said.

Democrats have tried to say that Barrett, a conservative Catholic, would look to overturn certain court precedents including Obergefell and Roe v. Wade, in line with her religious views, though Barrett has maintained that her personal views are not reflective of her legal positions.

Republicans are attempting to confirm Barrett to the Court before the November 3 election. If confirmed, Barrett would create a 6-3 conservative majority of justices on the bench.

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