On the second day of hearings before the Senate judiciary committee, Democrats pressed the supreme court nominee Amy Coney Barrett on healthcare, election law and abortion rights – and met with little success.
Donald Trump’s third nominee for the highest court dodged questions on how she might rule on a challenge to the Affordable Care Act (ACA); whether she would recuse herself from any lawsuit about the presidential election; and whether she would vote to overturn the landmark 1973 ruling Roe v Wade, which made abortion legal.
In lengthy speeches, Democrats maintained that Barrett’s nomination was effectively a herald of the overturning of that ruling and the ACA, known popularly as Obamacare. The California senator Kamala Harris, participating in the hearing remotely, argued that Barrett’s positions on key issues were clear.
“I would suggest that we not pretend that we don’t know how this nominee views a women’s right to choose to make our own healthcare decisions,” Harris said late in the hearings.
In an exchange with the Delaware senator Chris Coons, Barrett said: “I am not here on a mission to destroy the Affordable Care Act. I’m just here to apply the law and adhere to the rule of law.”
Democratic senators pressed Barrett on whether she would recuse herself from a possible case about the outcome of the 2020 election. The Connecticut senator Richard Blumenthal said he was “disappointed” in Barrett’s refusal to commit to a position. He added: “It would be a dagger at the heart of the court and our democracy if this election is decided by the court rather than the American voters.”
Barrett argued that she was not a pundit, citing remarks by Justice Elena Kagan and the late Ruth Bader Ginsburg in saying that outside of reviewing a specific case, it was not her place to offer a position.
“No hints, no previews, no forecasts,” Barrett quoted Ginsburg as saying, after the California senator Dianne Feinstein questioned her about how she might rule in any case challenging the legality of abortion.
She repeatedly denied any indication that her political views would color her rulings on the high court. Harris at one point asked Barrett if she had heard Trump’s vows to seat a supreme court justice who would overturn Roe v Wade and the ACA.
“I don’t recall seeing or hearing those statements,” Barrett said.
Harris also pointed out that Trump nominated Barrett to serve as an appellate judge seven months after Barrett penned an article criticizing Justice John Roberts’ ruling upholding the ACA. Harris argued that showed Trump had been elevating Barrett to overturn the healthcare law.
When she was asked about a newspaper ad she signed criticizing Roe v Wade, first reported by the Guardian, Barrett said she had “no recollection” of it and stressed she had nothing to hide.
At another point in Tuesday’s hearing, Barrett cited Kagan in saying she would not give “a thumbs up or thumbs down” on any hypothetical ruling.
Most of the Democrats’ questioning centered on the ACA, and how a ruling by the high court overturning the law would take healthcare away from millions of Americans. A hearing is due a week after election day. Democrats see protecting the ACA as a productive electoral tactic. That focus helped the party retake the House of Representatives in 2018.
Barrett said she was not hostile to the ACA, abortion or gay rights, another area worrying progressives as the court seems set to tilt to a 6-3 conservative majority. Barrett said she was simply focused on upholding the law.
“I apply the law, I follow the law,” Barrett said. “You make the policy.”
Asked about gay rights, Barrett said: “I would not discriminate on the basis of sexual preference.”
Her choice of words conspicuously suggested that to her, sexuality is a choice. Amid scrutiny of Barrett’s past, it has been reported that she was a trustee at a school whose handbook included stated opposition to same-sex marriage.
Republican senators also questioned Barrett on healthcare, the Iowa senator Chuck Grassley asking if she had been asked during the nomination process if she supported overturning the ACA.
“Absolutely not,” Barrett said. “I was never asked and if I had been that would’ve been a short conversation.”
Barrett said it was “just not true” that she wanted to strike down protections for Americans with pre-existing conditions.
Asked if she thought same-sex marriage should be a crime, she said the ruling in Obergefell v Hodges, in 2015, made it the law of the land.
Asked if she would recuse herself on any lawsuit over the outcome of the 2020 election, however, Barrett declined to commit. Instead she said: “I have made no commitment to anyone – not in the Senate, not in the White House – on how I would decide a case.”
It was the first of two sessions of questioning, after which outside witnesses will be called.
Barrett, in addition to serving as an appellate judge, is also a professor at the University of Notre Dame. Almost 100 of Barrett’s colleagues in a letter urged her to hold off on the confirmation process until after the presidential election in November.
The letter pointed out the “rushed nature” of events, adding that it “may effectively deprive the American people of a voice in selecting the next Supreme Court justice”.
“You are not, of course, responsible for the anti-democratic machinations driving your nomination,” the letter added.
Trump and Republicans are eager to move quickly. The president has said he wants to see Barrett confirmed before election day, which is in three weeks’ time, suggesting that this is in part because he hopes she will rule in his favor if a challenge to the election result reaches the highest court.
In a conference call with reporters on Tuesday morning, Senate Democrats fretted about their chances of stopping Barrett.
“The fact of the matter is this nominee is extreme,” the Connecticut senator Richard Blumenthal said. “Her views are outliers.
“I think we are going to demonstrate today and tomorrow what’s at stake and how extreme and far right this nominee is.”
He conceded that Democrats had no “magic” tool to block Barrett. They would, he said, use every procedural tool they had but “the politics are difficult here. Republicans are practically boasting that they have the votes.”
Blumenthal said Democrats were “ultimately making our case to the American people”, to make them realize the impact Barrett’s nomination was likely to have.