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Amy Coney Barrett and the Death of the Supreme Court Confirmation Hearing

There no longer is a point to Senate confirmation hearings of Supreme Court justices, beyond heaping indignities upon the American people.

Erin Scott/Getty Images

The Senate Judiciary Committee had its real first opportunity to closely question Amy Coney Barrett in person during Tuesday’s confirmation hearing. Expectations were hardly high. Over the past few decades, would-be justices from across the ideological spectrum have largely refused to say how they would rule on pending cases or future legal issues. Ruth Bader Ginsburg, whose former seat Barrett hopes to fill, once told the committee she would give “no hints, no previews, no forecasts” about how she would decide cases if confirmed to the Supreme Court.

Even by those standards, however, Tuesday’s hearing was a bewildering endeavor. At one point, Barrett declined to say whether voter intimidation violated federal law, which it unambiguously does. At another, she refused to support the peaceful transition of power in the upcoming election. She resisted efforts to discuss her personal views. She declined to elaborate or extrapolate her professional stances as an academic. She refused to opine on real cases or discuss hypothetical ones.

Some, if not many, of these responses are defensible under precedents set by Ginsburg and other previous nominees. Indeed, it would be unethical for judicial nominees to tip their hand on deciding future cases to either Congress or the White House, especially if it was implicitly done in exchange for their confirmation. But others are more inexplicable, and Barrett’s refusal to answer these questions underscores what a futile exercise the Supreme Court confirmation process has become.

Early in the hearing, California Senator Dianne Feinstein asked Barrett if a president could unilaterally delay the upcoming general election under federal law. The question didn’t spring from a vacuum; Trump himself floated the prospect of delaying the November election over the summer. Though such a move would obviously not be legal or constitutional, Barrett declined to say as much and said she would need to consult colleagues and hold oral arguments. “If I give off the cuff answers, I would basically be a legal pundit, and I don’t think we want judges to be legal pundits,” she explained. “I think we want judges to approach cases with an open mind.”

In another exchange, Minnesota Senator Amy Klobuchar noted that President Donald Trump had repeatedly vowed to nominate judicial nominees who fit certain ideological criteria. “If I win the presidency, my judicial appointments will do the right thing unlike Bush’s appointee John Roberts on ObamaCare,” he wrote on Twitter in 2016. He has also repeatedly pledged to choose anti-abortion Supreme Court nominees who would overturn Roe v. Wade. “Senator Klobuchar, I can’t really speak to what the president has said on Twitter,” Barrett replied, though she added that she hasn’t privately told the White House how she would vote in potential cases or been asked by the White House to do so.

When Klobuchar asked Barrett whether she agreed with Ruth Bader Ginsburg’s famous dissent in Shelby County v. Holder, the 2013 case in which the Supreme Court’s conservative majority gutted the Voting Rights Act of 1965, Barrett also turned elusive. “I just wanted to clarify that I had written Kanter v. Barr, and so that’s why I was talking about it,” Barrett replied, referring to a Seventh Circuit gun-rights case in which she dissented. “But since I didn’t write Shelby I can’t really talk about it. So anything I have written about or talked about, I would be happy to answer your questions.”

Even when it came to those writings and discussions, however, Barrett outlined clear limits. Missouri Senator Josh Hawley questioned Barrett at length about her decision to sign an anti-abortion ad in 2006. (She signed a similar one denouncing Roe v. Wade in 2013.) Barrett insisted that she could separate her personal views from her professional views. “I signed that almost 15 years ago in my personal capacity when I was still a private citizen, and now I’m a public official,” she told Hawley. “And so while I was free to express my private views, at that time, I don’t feel like it is appropriate for me anymore because of the canons of conduct, to express an affirmative view, at this point in time.”

Her resistance to offering almost any personal or professional views led to uncomfortable places. “Do you believe that every president should make a commitment, unequivocally and resolutely, to the peaceful transfer of power?” New Jersey Senator Cory Booker asked her. “Well, Senator, that seems to me to be pulling me a little bit into this question of whether the president has said that he would not leave office,” Barrett replied, “and so to the extent that this is a political controversy now, as a judge I want to stay out of it, and I don’t want to express a view.” Five years ago, the peaceful transfer of power was beyond dispute in American politics. Now a Supreme Court nominee won’t defend it in public.

Tuesday’s hearing also showed some outer bounds to this Delphic approach. “As a person, I have a general belief that racism is abhorrent,” Barrett told Feinstein at one point. “Well, I think we would all agree to that,” the senator optimistically replied. But that was a rare exception to Barrett’s general rule. If the matters at hand weren’t so serious, senators could almost make a game out of trying to figure out where Barrett feels comfortable expressing an opinion of any kind. Should Americans pay taxes? Is Canada an ally of the United States? Does the infield fly rule place too much weight on umpires’ judgment?

In some ways, this song-and-dance routine between senators and nominees is just that. There are no serious doubts among either anti-abortion groups or abortion-rights groups about Barrett’s views on the matter, even before her signatures on anti-abortion ads became public. Conservatives spent the last 30 years building a judicial-nominee screening machine to prevent Republican presidents from placing another David Souter on the Supreme Court; so far it’s been fairly successful in selecting justices who fit their ideological vision for the courts. The only people who acted as though Barrett’s views on abortion are a mystery were the Democratic senators who performatively tried to uncover them, the Republican senators who insisted they were unknowable while confidently opining on Roe v. Wade’s imminent downfall, and Barrett herself.

This entire rigmarole reflects a deeper failure of the process. I’ve written before that Supreme Court justices should be chosen from a lottery of federal judges instead of by presidents and senators. Barring that, I’ve also suggested that senators ask questions about American history and overturned cases to explore the nominees’ views instead of easily deflected queries about hot-button issues. Tuesday’s hearing only deepened my desire for deeper reform.

There was a certain amount of irony in the air as well. Conservatives relentlessly skewered Speaker Nancy Pelosi over the past decade for her out-of-context remark that “we have to pass the [Affordable Care Act] so that you can find out what’s in the bill.” As the landmark health care law’s fate is once again before the Supreme Court, Republicans have now taken a similar approach to their efforts to demolish it. If you really want to find out what Amy Coney Barrett thinks about the ACA, you have to let her rule on it.