The confirmation process for Judge Amy Coney Barrett gets underway in earnest on Tuesday, as Democrats get their first crack at questioning President Donald Trump’s latest Supreme Court pick. They’ll grill her on issues ranging from abortion to health care to environmental regulation, and she’ll do her best to avoid giving them a damaging sound bite.
While some aspects of this week’s hearing have been unique — like the coronavirus precautions, the maskless remarks by a senator recently diagnosed with the illness and the looming election — these Supreme Court brawls are becoming almost routine on Capitol Hill, with the Senate Judiciary Committee moving on three nominations in just over three-and-a-half years.
With that pace, Supreme Court confirmation hearings have developed a lingo all their own that often reflects the partisan battleground high court nominations have become.
Here’s POLITICO’s guide to the watchwords likely to dominate the questioning over Barrett over the next two days:
The Ginsburg rule
For years, Republican presidents’ Supreme Court nominees and their backers have invoked what they’ve dubbed “the Ginsburg rule” to avoid offering detailed answers to legal questions during confirmation hearings.
The phrase the GOP has seized on comes from a standard the late Ruth Bader Ginsburg laid out during her 1993 hearing on her nomination to the high court.
“It would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide,” Ginsburg said in her opening statement.
“Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues. … A judge sworn to decide impartially can offer no forecasts, no hints, no previews.”
As the hearing progressed, Ginsburg went on to be somewhat less opaque than she initially vowed and she wound up offering her views or hints of her views on a variety of legal questions ranging from abortion to affirmative action to government funding for the arts.
Among the most withering critics of the reticence embodied by the so-called Ginsburg rule in that era was a University of Chicago law professor named Elena Kagan. In a 1995 book review, the future Supreme Court justice complained that the confirmation process had become “a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.”
Some high court nominees have taken the position to an extreme, as when then-nominee Neil Gorsuch refused to say whether he agreed with the 1954 Supreme Court decision that found segregated public schools unconstitutional, Brown v. Board of Education.
Now, many GOP senators seem certain to embrace Ginsburg’s enunciated standard, with added gusto, for the nominee Trump tapped to replace the justice credited with defining that approach.
Barrett appears likely to adhere faithfully to the Ginsburg rule. At Barrett’s 2017 confirmation hearing to the 7th Circuit Court of Appeals, the esteemed legal scholar recited bar exam-style summaries of existing precedents and legal theories, but offered little insight into her views on those rulings and principles.
“The line that other nominees have heeded in this case, I think, is a prudent one,” she said.
“I want to cooperate as fully as I can, but I think if I express a personal view on any of these matters it might give a misimpression that my personal view is what would drive the decision of the case.”
Barrett was so evasive that even one Republican Judiciary Committee member publicly chafed at her non-answers.
“What I want to understand is what you think about the law,” said Sen. John Kennedy of Louisiana, an attorney and adjunct law professor. “I don’t agree with the position you’re taking where you won’t talk to me about the law, but if that’s what you want to do, that’s your call. It’s America. It’s a free country.”
“It bothers me when nominees will not come before this committee and allow us to have a good-faith discussion of the reasoning and the discussion and the analysis,” Kennedy added.
Despite his stated misgivings, Kennedy voted in favor of Barrett, who was confirmed on a largely partisan 55-43 vote.
Barrett and her ‘dogma’
Republicans and Catholics of many stripes have bristled at Sen. Dianne Feinstein’s blunt declaration during Barrett’s 2017 appeals court confirmation hearing that the law professor is so devout that her Catholic religious views were almost certain to bleed over into her work.
“The dogma lives loudly within you. … Dogma and law are two different things,” the California Democrat declared then. “And I think whatever a religion is, it has its own dogma. The law is totally different.”
The focus by Feinstein and other senators three years ago on Barrett’s religious beliefs drew rebukes from the presidents of two prominent universities, Notre Dame and Princeton.
Republican outrage over the questioning resurfaced on Monday and seems poised to be a recurring theme later this week, though Democrats steered entirely clear of the topic during the first day of questioning.
“Do you know if any of your colleagues are planning on bringing up her religious beliefs?” a reporter asked Sen. Dick Durbin (D-Ill.) during a break in the hearing.
“I cannot think of a single one,” Durbin replied.
Although Republicans have accused Democrats of launching a discriminatory attack on Barrett over her faith, what actually unfolded three years ago before the same committee was much more nuanced. The first senator to raise the issue of whether Barrett’s Catholic views might interfere with her work was the Republican chairman of the committee at the time, Sen. Chuck Grassley of Iowa, who did so with his very first question.
“You have been outspoken about your role and your Catholic faith, and what that plays in your life,” Grassley asked. “When is it proper for a judge to put their religious views above applying the law? “
“Never. It’s never appropriate,” Barrett replied.
Grassley’s query may have been an effort to preempt Democrats by giving Barrett a friendly platform to defend herself, but he didn’t pooh-pooh the concern and never suggested during the hearing that it was an improper one to bring up.
While Feinstein later weighed in with her controversial “dogma” comment, and other Democrats were similarly direct in asking Barrett about how her Catholic views could influence her decisions, those senators were not alone: Sen. Ted Cruz (R-Texas) pursued the same theme, actually exaggerating the arguments Barrett presented in a law review article she co-wrote in 1998.
“I’ve read some of what you’ve written on Catholic judges in capital cases. In particular, as I understand it, you’ve argued that Catholic judges are morally precluded from enforcing the death penalty,” Cruz said.
Barrett said the article was about what a religious judge who felt conflicted should do and she quickly noted that she’d handled death penalty cases while clerking at the Supreme Court and would personally see no need to recuse herself from them as a judge.
Whither Griswold?
Though Democrats were mum about Barrett’s Catholic faith Monday, that didn’t stop Republicans from insisting that such an attack was imminent or even underway. One way they did that was to point to press stories about Barrett and her membership in the lay Catholic group “People of Praise.”
But one member of the committee went further. In an impassioned statement, Sen. Josh Hawley (R-Mo.) railed against “bigotry” and insisted that Sen. Chris Coons (D-Del.) had snuck in a shrouded reference to Barrett’s Catholicism by saying he doubted her respect for Griswold v. Connecticut, a 1965 Supreme Court case that struck down state bans on contraceptives for married couples. The ruling did so by finding a right to privacy in the “penumbras” and “emanations” of the Constitution, even though the term “privacy” is found nowhere in the founding document’s text.
“This is the sort of attack that must stop,” Hawley said of Coons’ reference to Griswold.
Griswold has long been seen by many conservatives as the kind of original sin of abortion jurisprudence — a poorly reasoned decision that laid the groundwork for the landmark ruling the court issued eight years later in Roe v. Wade.
Indeed, a Republican member of the Judiciary Committee — Kennedy — pressed Barrett about Griswold during her 2017 confirmation hearing.
“Do you believe there are unenumerated rights in the United States Constitution? … When Griswold came down and you read it, what did you think? Did you say, ‘This is a well-reasoned opinion and I agree with it’?” he asked.
“I was not alive when Griswold came down,” Barrett replied, going on to duck his follow-up question.
The McConnell (Graham) Rule
Although Democrats seemed intent Monday on keeping the focus on the legal peril facing Obamacare — and the possibility that Barrett could cast a vote to strike down that law in a case set to be argued one week after Election Day — Democratic senators couldn’t help taking a few shots at their GOP colleagues on the issue of whether the hearing should be taking place at all.
Democrats remain steamed about the GOP’s decision to deny Obama nominee Merrick Garland a hearing and a vote in 2016. Senate Majority Leader Mitch McConnell declared at the time that the voters should be able to weigh in on such a vacancy in an election year.
McConnell sometimes added a caveat that his stance applied only when the Senate and the White House were controlled by different parties, but others, like current Senate Judiciary Chair Lindsey Graham (R-S.C.), were more categorical in ruling out just the sort of election-year confirmation process the Senate has now embarked on. The statements have prompted embittered Democrats to label the notion as the McConnell rule or even the Graham rule.
“This was a hypocritical, tire-squealing 180 for many Republican colleagues,” Sen. Sheldon Whitehouse (D-R.I.) said of the GOP’s decision to advance Barrett in an election year.
During Judge Brett Kavanaugh’s Supreme Court nomination in 2018, Graham called on the press to hold him to his 2016 position if a vacancy ever arose under a Republican president. However, the current Judiciary Committee chairman has since argued that the stridency of Democrats’ attacks on Kavanaugh convinced him that Barrett should get a vote — a stance that seems dubious since the inflammatory sexual assault allegations against Kavanaugh had already been aired by the time Graham made his pledge two years ago.
Legislating from the bench
Republicans have long complained about judges they view as judicial activists “legislating from the bench,” but Democrats have turned that phrase around on their GOP counterparts, alleging that they are seeking a justice who has her sights set squarely on taking out the Affordable Care Act.
“They want someone who will legislate from the bench and who will strike down laws and who will strike down laws supported by a vast majority of the American people,” Sen. Richard Blumenthal (D-Conn.) said of the Republicans.
Sen. Joni Ernst (R-Iowa) countered in her remarks that Democrats are trying to install judges who will do the legislative work Congress is often too deadlocked to accomplish. “What they want to see in their nominees … is that super-legislature,” she said.
Republicans also extolled Barrett’s commitment to “textualism,” a legal philosophy she has embraced that was also championed by the justice she clerked for, the late Antonin Scalia. That approach calls on judges to stick closely to the literal words of a statute.
Democrats didn’t seem interested in engaging on such arcane matters on Monday, suggesting those issues wouldn’t resonate with voters when compared with the real-world actions the Supreme Court could take, like striking down Obamacare.
“Our colleagues on the other side may want to talk about judicial philosophy. Very interesting,” Durbin said sarcastically. “It’s life and death for thousands if not millions of Americans. We believe the Affordable Care Act is hanging in the balance.”
Empathy vs. compassion
At times, Republicans seemed a bit spooked Monday by Democrats’ almost incessant focus on health care and by the sea of larger-than-life photos they dragged into the hearing room to make their point. Ernst disputed the suggestion that as a justice, Barrett would be indifferent to the suffering of coronavirus victims and others who depend on Obamacare for health insurance.
“I know you to be compassionate. Your record on the 7th Circuit says that you are,” Ernst said.
Ernst’s tribute to Barrett’s compassion evoked a similar episode in 2009 in which Republicans lacerated President Barack Obama for declaring that he was looking for “empathy” in a SCOTUS nominee.
“What does that mean? Usually, that’s a code word for an activist judge,” then-Sen. Orrin Hatch (R-Utah) said.
Also condemning Obama’s statement was Graham, who succeeded Grassley as chair of the Judiciary Committee.
“I can assure you that if I applied Sen. Obama’s standard to your nomination, I wouldn’t vote for you, because the standard that he articulated would make it impossible for anybody with my view of the law and society to vote for someone with your activism and background,” Graham told Judge Sonia Sotomayor at her confirmation hearing.
For her part, Sotomayor explicitly rejected Obama’s statement. “I wouldn’t approach the issue of judging in the way the president does,” she said. “Judges can’t rely on what’s in their heart.”