Under questioning from Sen. Patrick Leahy (D-Vt.) on Tuesday morning, Judge Amy Coney Barrett would not say how she would rule on challenges to the Affordable Care Act, nor would she commit to recusing herself from cases related to this year's presidential election.
Leahy, participating in the second day of Barrett's confirmation hearings remotely over health concerns related to the coronavirus, spoke far more than the nominee during his 30-minute interrogation, using his first of two rounds of questions to probe Barrett's stance on issues of health care policy and potential election disputes.
Leahy's approach reflects a key strategy of Senate Democrats heading into this week's confirmation hearings: Instead of attacking the nominee's character, they hope to show how her confirmation would impact some of the most contentious societal issues — particularly as Barrett seeks to replace the far more liberal Ruth Bader Ginsburg.
Barrett, however, has maintained a stance held by many of her predecessors — including Ginsburg — in refusing to say how she would rule in potential cases. She also largely steered clear of discussions about any precedents that she may reconsider.
“It would be wrong of me to do that as a sitting judge,” she said Tuesday morning. “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."
Leahy opened his questions with a largely rhetorical exercise aimed at underscoring how many Americans benefit from the Affordable Care Act. He quizzed the nominee on statistics such as how many people under 26 have been able to stay on their parents' insurance because of the law, and how many Americans are covered under its Medicaid expansion — questions that Barrett could not answer.
"I'm not suggesting that you're callous or indifferent to the consequences if the Affordable Care Act is overturned. You know these are real cases, and I think you're a sympathetic person," Leahy said after describing a diabetic Vermont woman's fear that she would not be able to afford insulin without her current health insurance. "But I do believe that the president selected you because he wanted somebody with your philosophy, and he had a reason for it."
Leahy said some of his colleagues will "pretend it's a mystery" about how Barrett would handle attacks against the ACA. But he said she has already given "every indiction" of how she would rule, pointing to comments she has previously made about how she believes the law is unconstitutional.
"Every time you have weighed in, it has not even been close," Leahy said, adding that President Trump has made it "very clear he expects you to side with him."
"It would be a gross violation of judicial independence for me to make any such commitment — or for me to be asked about that case and how I would rule," she said. "I also think it would be a complete violation of independence of the judiciary for anyone to put a justice on the court as a means of obtaining a particular result."
When Leahy pressed the issue, Barrett responded: "Senator Leahy, let me be clear: I have made no commitment to anyone — not in the Senate, not over at the White House — about how I would decide any case."
Leahy then turned his attention to the election, pointing to comments President Trump has made linking Barrett's confirmation with the need for nine justices in case of a contested White House race.
Asked at last month’s debate about whether he was relying on the Supreme Court — including Barrett, if confirmed — to settle an election dispute, Trump said, “Yeah. I think I’m counting on them to look at the ballots, definitely.”
"I've always assumed that judges are totally impartial no matter what president had nominated them," Leahy said. "But this president has not been subtle in he expects his nominee to side with him in an election dispute."
Noting that federal statutes require justices to recuse themselves in any proceedings for which their impartially "might reasonably be questioned," Leahy, a former prosecutor, urged Barrett to "at least consider" the credibility of the courts when deciding whether to participate in any election-related cases involving Trump.
"The president has placed both you and the Supreme Court in the worst position," Leahy said.
Barrett agreed that it is important for Americans to have confidence in their Supreme Court. "And I agree with your earlier statement," she told Leahy, "that the court should not be politicized."
But she demurred on whether she would commit to recusing herself from disputes arising out of November's election, saying only that she would "fully and faithfully" consider the law of recusal if necessary.
"Part of that law is to consider any appearance questions, and I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not," she said. "But I can't offer a legal conclusion right now about the outcome of the decision I would reach."
"Sort of a boilerplate response," Leahy responded, before continuing with his questions.
Leahy will have another chance to question Barrett later this week. The committee is expected to vote on Barrett's confirmation October 22.