NEWS
ANALYSIS
Barrett’s Testimony Is a Deft Mix of Expertise
and Evasion
Judge Amy Coney Barrett demonstrated easy familiarity
with Supreme Court precedents but said almost nothing about whether they should
stand.
Judge Amy Coney Barrett was patient, calm, a little
stern and sometimes surprisingly terse when she spoke about the law before the
Senate Judiciary Committee on Tuesday.
Adam Liptak
By Adam
Liptak
Oct. 13,
2020
WASHINGTON
— In 1995, Justice Elena Kagan, then a young law professor, wrote a law review
article calling Supreme Court confirmation hearings “a vapid and hollow
charade.”
“The safest
and surest route to the prize,” she wrote, “lay in alternating platitudinous
statement and judicious silence.”
Judge Amy
Coney Barrett expertly followed that playbook at her confirmation hearings on
Tuesday, in her first day of answering questions from the Senate Judiciary Committee.
Speaking without notes, she gave sure-footed accounts of Supreme Court
precedents and then, almost without exception, declined to say whether the
decisions were correct.
Judge
Barrett was patient, calm, a little stern and sometimes surprisingly terse when
she spoke about the law, easily parrying most questions from the Democratic
senators who tried to put her on the spot.
She would
not say how she would rule in potential cases on abortion, the election and
same-sex marriage — or a pending one on the Affordable Care Act.
Judge
Barrett’s stance was in line with the approach of nominees since Judge Robert
H. Bork’s answers at his 1987 confirmation hearings helped doom his nomination.
Nominated
by President Ronald Reagan, a Republican, Judge Bork gave extended answers to
the senators’ questions, in tones that struck some as candid and thoughtful and
others as prickly and arrogant. Democrats said his legal views, particularly
his skepticism about the constitutional right to privacy, were extreme and
signaled hostility to abortion rights.
The Senate,
which was controlled by Democrats, defeated the nomination by a 58-to-42 vote.
That was the largest margin by which it had ever rejected a Supreme Court
nomination, and it was the last time the Senate has voted down a nominee for
the court.
But Justice
Kagan, in her 1995 article, said the hearings were a high-water mark.
“The Bork
hearings presented to the public a serious discussion of the meaning of the
Constitution, the role of the court and the views of the nominee,” she wrote.
“Subsequent hearings have presented to the public a vapid and hollow charade,
in which repetition of platitudes has replaced discussion of viewpoints, and
personal anecdotes have supplanted legal analysis.”
Judge
Barrett seemed to have studied recent hearings carefully, absorbing their
lessons. They were presciently summarized in a 1981 memorandum written by a
young White House lawyer named John G. Roberts Jr., who helped prepare Justice
Sandra Day O’Connor, another Reagan nominee, for her confirmation hearings.
“The
approach was to avoid giving specific responses to any direct questions on
legal issues likely to come before the court,” the memo said, “but
demonstrating in the response a firm command of the subject area and awareness
of the relevant precedents and arguments.”
Chief
Justice Roberts took his own advice at his confirmation hearings in 2005. Some
said he retired the trophy. Judge Barrett held her own, too.
“I do want
to be forthright and answer every question,” she said when asked about whether
two key abortion precedents had been correctly decided. But she said she could
not describe her views.
“It would
be wrong of me to do that as a sitting judge,” she said. “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.”
Nor would
she say if the Supreme Court’s 2015 decision establishing a right to same-sex
marriage might be overturned, as Justices Clarence Thomas and Samuel A. Alito
Jr. seemed to urge this month.
Judge
Barrett acknowledged that she had written and spoken critically of the
reasoning in the controlling opinions in two Supreme Court decisions upholding
major provisions of the Affordable Care Act. But she said the key issue in the
latest challenge, to be argued next month, presented a different issue.
“I assure
you I am not hostile to the A.C.A.,” she said.
And she
invoked Justice Kagan, whose views had evolved by the time she appeared before
the committee in 2010 for her own confirmation hearings, having been nominated
by President Barack Obama, a Democrat. “She said that she was not going to
grade precedent or give it a thumbs up or thumbs down,” Judge Barrett said,
paraphrasing Justice Kagan.
Judge
Barrett also cited the so-called Ginsburg rule, named for Justice Ruth Bader
Ginsburg, who died last month and whose seat Judge Barrett hopes to assume.
Justice Ginsburg was nominated by President Bill Clinton, a Democrat.
At her
confirmation hearing in 1993, Justice Ginsburg distilled the responsibilities
of nominees into a pithy phrase: “no hints, no forecasts, no previews.”
Judge
Barrett said she would adopt the same stance. “That had been the practice of
nominees before her, but everybody calls it the Ginsburg rule because she
stated it so concisely, and it has been the practice of every nominee since,”
she said.
As it
happened, though, Justice Ginsburg was quite forthcoming during her hearing
about her views on abortion. The main exception to the Ginsburg rule, at least
where abortion was concerned, was Justice Ginsburg.
“The
decision whether or not to bear a child is central to a woman’s life, to her
well-being and dignity,” Justice Ginsburg said of abortion at her hearings.
“It’s a decision that she must make for herself. When government controls that
decision for her, she’s being treated as less than a fully adult human,
responsible for her own choices.”
In general,
though, Justice Ginsburg had taught a master class in avoiding direct responses
to senators’ questions, Justice Kagan wrote in her 1995 article.
“Justice
Ginsburg’s favored technique took the form of a pincer movement,” Justice Kagan
wrote. If a question was too specific, she would decline to answer on the
ground that she did not want to forecast a vote. If it was too general, she
would say a judge should not deal in abstractions or hypothetical questions.
Justice
Kagan explained what was considered too specific: “Roughly, anything that might
have some bearing on a case that might someday come before the court.” She also
described what had been too general: “Roughly, anything else worthy of
mention.”
Judge
Barrett recited the usual factors for considering whether a precedent should be
overruled: whether people had come to rely on it in ordering their affairs,
whether it was workable in practice and whether it has been undermined by later
decisions or factual developments. She would consider those factors, she said,
for “abortion or anything else.”
She made an
exception for Brown v. Board of Education, the landmark 1954 school
desegregation case. That was a “super-precedent,” she said, “one that is so
well-established that it would be unthinkable that it would ever be overruled.”
Judge
Barrett refused to say whether she would recuse herself from the case on the
health care law or potential ones arising from the election next month. She
would, she said, consider judicial ethics rules and consult with her
colleagues.
“I
certainly hope that all members of the committee have more confidence in my
integrity than to think that I would allow myself to be used as a pawn to
decide this election for the American people,” she said.
She was
adamant that she had made no promises about how she would rule: “I have made no
commitment to anyone, not in the Senate, not over at the White House, on how I
would decide any case.”
Adam Liptak
covers the Supreme Court and writes Sidebar, a column on legal developments. A
graduate of Yale Law School, he practiced law for 14 years before joining The
Times in 2002. @adamliptak • Facebook
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