Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today questioned Judge Amy Coney Barrett at her Supreme Court Nomination hearing. Excerpts from the questioning follow:
Women’s Reproductive Rights:
Judge Barrett refused to acknowledge Planned Parenthood of Southeastern Pennsylvania v. Casey as settled law. This landmark case reaffirming women’s reproductive rights has been acknowledged as settled law by nearly every Supreme Court nominee before her.
Judge Barrett’s answer also revealed that she believes that the Supreme Court will be reconsidering a woman’s fundamental right to abortion. Based on her record, it’s clear that when given the chance, Judge Barrett will vote to undermine or overturn entirely a woman’s right to make this fundamentally personal and important decision.
Feinstein: “During her confirmation hearing before this committee in 1993, Ruth Bader Ginsburg was asked several questions about her views on whether the Constitution protects a woman’s right to abortion. She unequivocally confirmed her view that the Constitution protects a woman’s right to abortion, and she explained it like this: ‘the decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It’s a decision she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choice.’
At one point our former colleague, Orrin Hatch, then the ranking member of this committee, commended her for her being ‘very forthright in talking about that.’ So I hope – and you have been thus far – be equally forthright with your answers.
In Planned Parenthood of Southeastern Pennsylvania v. Casey, Justice Scalia, as was said earlier, joined the dissent, which took the position ‘We believe that Roe was wrongly decided and that it can and should be overruled, consistent with our traditional approach to stare decisis in constitutional cases.’ Do you agree with Justice Scalia’s view that Roe was wrongly decided?
Barrett: “So senator, I do want to be forthright and answer every question so far as I can. I think on that question, you know, I’m going to invoke Justice Kagan’s description, which I think is perfectly put. When she was in her confirmation hearing, she said that she was not going to grade precedent or give it a thumbs up or thumbs down, and I think in an area where precedent continues to be pressed and litigated, as is true of Casey, it would be particularly – it would actually be wrong and a violation of the canons for me to do that as a sitting judge.
So if I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another in a pending case.
Feinstein: “So on something that is really a major cause with major effect on over half of the population of this country who are women, after all, it’s distressing not to get a straight answer.”
Judge Barrett refused to say whether President Trump has the authority to move or delay the election, a power that is clearly reserved to Congress, in the Constitution. Her failure to confirm the plain text of the Constitution and show her independence from the president should be disqualifying.
Feinstein: “On July 30th, 2020, President Trump made claims of voter fraud and suggested he wanted to delay the upcoming election. Does the Constitution give the president of the United States the authority to unilaterally delay a general election under any circumstances? Does federal law?”
Barrett: “Well, senator, if that question ever came before me, I would need to hear arguments from the litigants and read the briefs and consult with my law clerks and talk to my colleagues and go through the opinion writing process. So, you know, if I give off-the-cuff answers, then I would be basically a legal pundit. And I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind.”
Judge Barrett refused to say whether the Constitution protects marriage equality. In the past, Judge Barrett said she agrees with Justice Scalia’s philosophy; Justice Scalia twice voted to deny marriage equality.
Feinstein: “In 2013 as you probably know, because you know so much about this, U.S. v. Windsor, the Supreme Court struck DOMA down. Two years later, in Obergefell v. Hodges the Supreme Court recognized that the fundamental right to marry could not be denied to LGBT Americans. Both decisions were decided by a 5-4 margin. Justice Ginsburg was in the majority, Justice Scalia dissented in both cases.
“Now you said in your acceptance speech for this nomination that Justice Scalia’s philosophy is your philosophy. Do you agree with this particular point of Justice Scalia’s view that the U.S. Constitution does not afford gay people the fundamental right to marry?”
Barrett: “Senator Feinstein, as I said to Senator Graham at the outset, if I were confirmed, you would be getting Justice Barrett, not Justice Scalia. So I don’t think that anybody should assume that just because Justice Scalia decided a decision in a certain way that I would too. But I’m not going to express a view on whether I agree or disagree with Justice Scalia for the same reasons that I have been giving.
“Now Justice Ginsburg, with her characteristic pickiness, used this to describe how a nominee should comport herself at a hearing: ‘No hints, no previews, no forecast.’ That had been the practice of nominees before her what everybody calls it the ‘Ginsburg rule’ because she stated it so concisely and it has been the practice of every nominee since. So I can’t, and I’m sorry to not be able to embrace or disavow Justice Scalia’s position but I really can’t do that on any point of law.”
Feinstein: “Well, that’s really too bad because it’s rather a fundamental point for large numbers of people I think in this country. I understand you don’t want to answer these questions directly but the great – you identify yourself with a justice that you like him would be a consistent vote to roll back hard-fought freedoms and protections for the LGBT community and what I was hoping you would say is that this would be a point of difference where those freedoms would be respected, and you haven’t said that.”###