Supreme Court nominee Amy Coney Barrett on Tuesday declined to respond to questions about abortion cases before the high court, saying she “cannot pre-commit” while saying she has “no agenda.”
Senate Judiciary Committee Ranking Member Dianne Feinstein, D-Calif., pressed Barrett on the issue of abortion and Roe v. Wade and quoted late Justice Ruth Bader Ginsburg during her confirmation hearing in 1993.
“‘The decision whether or not to bear a child is central to a woman's life, to her well-being and dignity,’” Feinstein quoted Ginsburg as saying. “‘It is a decision she must make for herself.’”
Feinstein added that Ginsburg said that “when the government controls that decision for her, she is being treated as less than a full adult human responsible for her own choices.”
Feinstein commended Ginsburg for being “forthright” in talking about the issue and urged Barrett to do the same.
“I do want to be forthright and answer every question. On that question, I am going to invoke Justice Kagan’s description, which I think was perfectly put — she was not going to grade precedent or give it a thumbs-up or thumbs-down,” Barrett responded, adding that any further response would be “wrong” and a “violation of the canons to do that as a sitting judge.”
“It signals to litigants that I may tilt one way or another in a pending case,” Barrett said.
But Feinstein pushed her, saying it was “distressing not to get a straight answer.”
“Do you agree with Justice Scalia’s view that Roe was wrongly decided?” Feinstein asked.
“I completely understand why you are asking the question, but I cannot pre-commit or say yes, I am going in with some agenda, because I am not,” Barrett said. “I have no agenda to try to overrule Casey, I have an agenda to stick to the rule of law and decide cases as they come.”
Barrett was referring to a 1992 case, Casey v. Planned Parenthood, when the Supreme Court affirmed the basic ruling of Roe v. Wade, that a state is prohibited from banning most abortions.
Barrett said Roe v. Wade's and Casey’s “contours could come up again” and said that while she knows it is a “contentious issue” and would be “comforting” for her to provide an answer, she could “not commit to approaching a case any particular way.”
“Well, that makes it difficult for me and I think other women on this committee because this is a very important case and it affects a lot of people, millions and millions of women, and you could be a very important vote,” Feinstein said. “And I hoped you would say, as a person, and you understand all implications of family life — you should be proud of that, I am proud of that for you — you are going on the biggest court of this land with a problem out there that all women see, one way or another in their life…and the question comes, what happens? And will this justice support a law that has a substantial precedent now?”
Barrett simply stated that she will “obey all the rules” and will apply “all factors” relating to precedent and “reliance and workability.”
“All the standard factors,” Barrett explained. “And I promise to do that for any issue that comes up, abortion or anything else, I’ll follow the law.”
Feinstein responded: “Well, I think that’s expected. I respect you and your family…but this is a very real problem out there.”
It's common practice for court nominees to stay quiet about how they would rule on certain issues so as not to prejudge the cases that could come before them. So senators rely on past statements, legal writings and court opinions to understand how a nominee would rule on Roe v. Wade.
Barrett, though, has faced attacks from Planned Parenthood and women’s groups who argue her nomination is a threat to women's reproductive rights.
Barrett has been scrutinized by Democrats over her faith, dating back to her confirmation to the 7th U.S. Circuit Court of Appeals in 2017. During the hearing, Barrett, a Catholic mother of seven, had to assert numerous times that her faith would not influence her jurisprudence.
Feinstein, during that hearing in 2017, told Barrett at the time that she was concerned over her Catholic beliefs and particularly how she would apply them in cases involving abortion.
“Why is it that so many of us on this side have this very uncomfortable feeling that dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different,” Feinstein told Barrett, a Notre Dame law professor. “And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern.”
In the 2017 White House questionnaire upon being appointed to the 7th Circuit Court of Appeals, Barrett was asked if it was her view that abortion was always immoral. She didn’t answer the question directly but said: “If I am confirmed (to the 7th Circuit), my views on this or any other question will have no bearing on the discharge of my duties as a judge.”
In a 2013 Texas Law Review article, Barrett listed fewer than 10 cases she said are widely considered “super-precedents,” ones that no justice would dare reverse even if they believed they were wrongly decided. Among them was Brown vs. Board of Education, which declared racial segregation in public schools unconstitutional.
One she didn’t include on the list: Roe v. Wade, the 1973 landmark case that affirmed a woman’s right to abortion. Scholars don’t include it, she wrote, because public controversy swirling around it has never abated.
Abortion and women's rights were the focus of the bruising 2017 confirmation process after Barrett's nomination to the 7th Circuit.
Others pointed to Barrett's membership of the University of Notre Dame’s “Faculty for Life” group – and that she had signed a 2015 letter to Catholic bishops affirming the “value of human life from conception to natural death.”
The Senate eventually confirmed her in a 55-43 vote, with three Democrats joining the majority.
Despite concerns from Democrats, Barrett, in a 1998 Notre Dame Law School review article, wrote that “Judges cannot — nor should they try to — align our legal system with the Church's moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church's standard. Perhaps their good example will have some effect."
And last month, despite Democrats questioning whether her religion would influence her decisions on cases should she be confirmed to the Supreme Court, upon accepting her nomination, said that:
“A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold."
The Associated Press contributed to this report.