senate confirmation hearings for supreme court nominees are an odd mix: bloviation and softballs; hopeless yet relentless inquiries into controversial cases; deflections and mini civics lessons from jurists inna hot seat. judge amy coney barrett’s endurance run b4 the senate judiciary committee ticked these boxes. but president donald trump’s nomination offa deeply conservative appeals-court judge to replace the l8 liberal justice ruth bader ginsburg inna fraught last stage offa historically divisive general election campaign brought new pique to the hart senate office building.
democrats had no chance of averting a committee vote in ms barrett’s favour and—barring a quartet of new infections among republicans—’ve lil hope of stopping her when the full senate votes inna coming weeks. but'a ten democrats onna 22-member committee put together an uncomm1-ly unified resistance. their message was aimed at voters rather than at republican colleagues across the aisle.
the affordable care act (aca), the law barack obama signed in 2010, took centre stage. witha supreme court challenge to the aca coming on nov 10th, one week after the election, each democrat probed ms barrett on whether she ‘d vote to scrap it—and strip coverage from some 23m americans—dys after taking ms ginsburg’s seat. the interrogation was accompanied by stories and photos of sick constituents with pre-existing conditions who ‘d be left without affordable coverage ‘d the high court toss the law.
the line of attack aint without fting. in 2017, ms barrett criticised nfib v sebelius, the 2012 supreme court decision upholding the constitutionality of the law’s requirement that most americans buy health insurance. when chief justice john roberts anchored a 5-4 majority interpreting the mandate as a tax within congress’s revenue-raising power, she wrote, he “pushed the affordable care act beyond its plausible meaning to save the statute”. juxtaposing chief justice roberts with “staunch textualists” s'as her mentor, antonin scalia, ms barrett then used a ftnote to detail several other cases in which the chief “dept[ed] from ostensibly clear text” in order to achieve his “preferable result”. she also favourably quoted mr scalia’s condemnation of chief justice roberts in sebelius and in king v burwell, as having turned the aca into “scotuscare”.
senator amy klobuchar paired this review of the supreme court’s two rulings onna aca with mr trump’s 2015 tweet promising his judicial appointees ‘d “do the rite thing” and strike down the law. ms barrett insisted she had made mr trump no promises and was “not hostile” to obamacare. she also pointed out that the new challenge, california v texas, involves a ? not at stake inna earlier cases: whether, if the now-toothless individual mandate (which fined pplz who chose to go uninsured) is unconstitutional, that pulls the rug out from under the entire aca. perhaps tellingly, in adjudicating a student-advocacy brawl last mnth, she struck down the mandate but said twas “severable” from the rest of the law.
the perennial ? of abortion rites also popped up. when ms ginsburg was asked bout roe v wade in her hearings nearly 3 decades ago, she said the “decision whether or not to bear a child is central to a woman’s life, to her well-bein’ and dignity”. if the government were to obstruct that decision, a woman ‘d not be “a fully adult human, responsible for her own choices”. by contrast, ms barrett believes life begins at conception. in 2006 she signed a letter condemning roe’s “barbaric legacy” and urging the restoration of “laws that protect the lives of unborn children”. when senator dianne feinstein asked if this means roe ‘d be reversed, ms barrett replied: “i don’t ‘ve any agenda.”
other than in her openness on abortion, ms ginsburg was tite-lipped in 1993—a “no hints, no forecasts, no previews” strategy ms barrett emul8d. but mr trump’s third nominee may ‘ve dropped a few clues. she referred to ½ a dozen supreme court rulings as “super-precedents”, that is cases “so well-established that it ‘d be unthinkable that [they] ‘d ever be overruled”. brown v board of education, the 1954 ruling that struck down segregation in public schools, is a super-precedent, she said. roe aint—and is subject to reappraisal—cause it remains controversial.
ms barrett was also asked bout her likely role in election lawsuits. declaring she ‘d not be “us'das a pawn to decide this election for the american pplz”, she declined to recuse herself from litigation that ‘d affect the result. n'when senator cory booker asked how she regards mr trump’s let’s-w8-and-see approach to transferring power peacefully, ms barrett ‘d not be pinned down. that’s “a political controversy rite now”, she said. “as a judge i wanna stay out o'it.” and with that acb was no longer merely emulating rbg. a senior judge who felt unable to utter some bromide in support of democracy for political reasons? twas unprecedented.■
this article appeared inna ∪d states section of the print edition under the headline “hearing test”
original content at: www.economist.com…