By: Noah Rubel
After the death of Justice Ruth Bader Ginsburg, a third Supreme Court seat opened up for President Donald Trump to nominate a justice for the nine-member body..
That justice is Amy Coney Barret, who was confirmed to the 7th U.S. Circuit Court of Appeals just 11 months ago. On Oct. 12-15, Barrett was questioned by Democratic and Republican senators. During the hearings, both sides of the aisle asked Barrett about her positions on multiple topics.
One of the first things that Barrett was asked about by the Democrats was her workings and position on the Affordable Care Act. Throughout the hearings, Barrett made it very clear that she would refuse to answer questions on specific court cases. This topic was based on California v. Texas and whether Barrett would vote on striking down the Affordable Care Act altogether or if “severability” was an option.
Barrett added: "I think the doctrine of severability as it's been described by the court serves a valuable function of trying not to undo your work when you wouldn't want a court to undo your work. Severability strives to look at a statute as a whole and say, 'would Congress have considered this provision so vital that kind of in the Jenga game, pulling it out, Congress wouldn't want the statute anymore?'"
Barrett was also pressed on her participation in the Bush V. Gore case. Sen. .Amy Klobuchar (D-Minn) asked, “If you are confirmed, the Supreme Court will have not one, not two, but three justices — you, Justice [Brett] Kavanaugh and Chief Justice [John] Roberts — who worked on behalf of the Republican Party in matters related to the Bush v. Gore case. Do you think that that’s a coincidence?”
“Sen. Klobuchar, if you’re asking me whether I was nominated for this seat because I worked on Bush v. Gore for a very brief period of time as a young associate, that doesn’t make sense to me,” Barrett replied. Klobuchar argued that her nomination would mean that three justices with Bush V. Gore background, two of which were appointed by Trump, could decide any cases related to the 2020 election.
Barrett also made it known that she would invoke the Ginsburg Rule when asked by Sen. Diane Feinstein (D-Calif) and other Democrats about abortion and the landmark case of Roe v. Wade. The Ginsburg Rule has been a precedent since the 1993 Supreme Court hearing for the late Justice Ginsburg where then-Senate Judiciary Committee Chairman Sen. Joe Biden (D-Del.) asked senators to refrain from asking “how [Ginsburg] will decide any specific case that may come before her.” Biden’s rule established that Ginsburg was under no obligation to answer questions about cases that may be presented before the Supreme Court or about her personal views on court precedent.
“If I express a view on a precedent one way or another, 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,” Barrett explained.
One other topic of discussion that did not directly connect to Barrett herself included the Democrats’ concerns with holding a hearing during a pandemic.
“This hearing has brought together more than 50 people to sit inside of a closed-door room for hours, while our nation is facing a deadly airborne virus,” Sen. Kamala Harris said. “This committee has ignored common sense requests for keeping people safe, including not requiring testing for all members, despite a coronavirus outbreak among senators of this very committee.”
Ahead potentially lies a long battle throughout the rest of the confirmation process between Democrats and Republicans with Democrats accusing the Republicans of trying to push through another nominee before the election.