As recent nominees before her have done, she avoided committing to a view on an array of different hotbed issues, including the Affordable Care Act, which is pending before the court next month; gun rights and abortion rights.
“Do you agree with Justice Scalia’s view that Roe was wrongly decided?” asked Sen. Dianne Feinstein (D-CA).
“If I express a view on a precedent one way or another, whether I say whether I love it or I hate it, it signals to litigants that I might tilt one way or another in a pending case,” Barrett said.
Feinstein then asked, “So on something that is really a major cause, a major effect on over half the population of this country who are women, after all, it is distressing not to get a straight answer. So let me try again. Do you agree with Justice Scalia’s view that Roe was wrongly decided?”
Barrett said, “Senator, I completely understand why you are asking the question, but again I can’t pre-commit or say yes, I am going in with some agenda, because I am not. I don’t have any agenda … I have an agenda to stick to the rule of law to decide cases as they come.” She said that she was adopting the same approach that Justice Elena Kagan used in her confirmation hearing.
Feinstein asked again, and Barrett’s answer was about the same.
The answers were not a surprise, as nominees have quite some time used a confirmation strategy of declining potentially polarizing comment. Ironically, it was Justice Ruth Bader Ginsburg, who Barrett would replace, who offered one of the more unusually direct answers when it came to abortion during her confirmation hearing in 1993. She was asked about her views of the equal protection clause of the Constitution and how it protected abortion rights.
“If you impose restraints, you are disadvantaging her because of her sex,” Ginsburg said. “The state controlling a woman would mean denying her full autonomy and full equality.”
The irony is that Ginsburg was confirmed in the Senate 96-3, while Barrett, who has steered clear of weighing in on some of the thornier issues, likely would make it to the Supreme Court only on a party line vote. It speaks to how much more politicized the hearings have become in the generation since Ginsburg confirmation.
Democrats are likely to highlight Barrett’s past writings to try to make the case that her confirmation would solidify the court’s rightward makeup. She signed on to an ad in 2013 that called Roe Vs. Wade “infamous.” At the hearing, she argued that her writings as a professor do not necessarily reflect her judicial reasoning.
Barrett also avoided saying whether she would recuse herself in the Affordable Care Act case or in an election dispute, and declined to weigh in on whether President Donald Trump had the power to postpone the election. On Scalia’s criticism of the high court’s 2015 same-sex marriage ruling, she declined to answer but said that she would “never discriminate on the basis of sexual preference.” (That term triggered pushback from LGBTQ groups, who note that it connotes that homosexuality is a choice).
She even made a point of not characterizing herself as a copy of Scalia, for whom she clerked and has said was her mentor.
“If I’m confirmed, you wouldn’t be getting Justice Scalia. You would be getting Justice Barrett,” she said.
“Judges can’t just wake up one day and say, I have an agenda. I like guns. I hate guns. I like abortion. I hate abortion, and walk in like a royal queen and impose their will on the world,” she said. “You have to wait for cases and controversies, which is the language of the Constitution, to wind their way through the process.”
She also said that she had had no conversation with Trump on how she would rule in a case.
“I have made no commitment to anyone, not in this Senate, not over in the White House, about how I would decide any case,” she said.