It was one of the most memorable moments in the confirmation of President Trump’s first Supreme Court nominee, Neil M. Gorsuch. Confronted with Trump’s comments attacking federal judges, Gorusch told a Democratic senator that such comments were “disheartening” and “demoralizing.” He also told a Republican senator, “Any attack on brothers or sisters of the robe is an attack on all judges.”
The statements were significant: A Supreme Court nominee distancing himself from the sentiments of the very president who nominated him.
Amy Coney Barrett has taken a very different tack in her quest to join Gorsuch on the court.
While Barrett is on track for confirmation after largely unremarkable confirmation hearings last week, those hearings were occasionally remarkable for one reason: Her refusal to weigh in on rather clear legal issues and expound on basically anything relating to Trump. She declined to say whether voter intimidation is a federal crime (it is) and whether a president can unilaterally delay an election (the Constitution specifically gives this power to Congress). She also suggested she might have somehow been familiar with Trump’s well-known stances on climate change and overturning the Affordable Care Act. It was occasionally pretty conspicuous and evasive.
And there is more where that come from in newly released, written answers Barrett provided to Democratic senators.
For instance, contrary to Gorsuch’s approach, Barrett declined to weigh in on Trump’s 2016 attack on a judge of Mexican descent, Gonzalo Curiel, whose ethnicity Trump suggested made him inherently biased against Trump:
Barrett also declined to say whether it’s a federal crime to vote twice, despite the law saying it’s a crime to vote “more than once in an election.”
As with her responses last week, it was clear Feinstein’s question pertained to something Trump had said — Trump seemed to urge his supporters to attempt to vote twice at a recent rally — but the question she asked was flatly and simply about what the law states. Barrett, though, demurred by suggesting it was a hypothetical or required her to comment on Trump.
Barrett was also noncommittal when asked about Trump’s claim that Article II of the Constitution provided him basically limitless powers:
It’s true that the powers of the president are frequently the subject of litigation, but it’s abundantly clear that those powers aren’t absolute, as Trump has occasionally suggested.
Sen. Richard Blumenthal (D-Conn.) also pressed Barrett on her previous answers about whether voter intimidation is illegal and whether a president can unilaterally delay an election. But Barrett stuck by her noncommittal responses, saying in each case that it wouldn’t be appropriate “to offer an opinion on abstract legal issues or hypotheticals.”
On the former issue in particular, she again suggested invoking Trump before asking the question meant she couldn’t weigh in. “I understood [Sen. Amy Klobuchar’s] question about federal law to be referring to the facts she described.” But while Klobuchar did reference Trump in her preface, her question was simply about what the law says: “Judge Barrett, under federal law, is it illegal to intimidate voters at the polls?”
Blumenthal also asked Barrett about whether murder would be a federal crime if it occurred on federal land, and Barrett again demurred:
The Justice Department has held that “Killings … on federal land (18 U.S.C. § 1111(b)) constitute federal offenses.”
Finally, Barrett was also somewhat evasive when it came to clarifying her stand on Roe. v. Wade. As I’ve written, Sen. Josh Hawley (R-Mo.) has said he has a litmus test that required any nominee to “explicitly acknowledge” that Roe was wrongly decided. Hawley has since said this litmus test has been satisfied and that he supports Barrett. Blumenthal noted this and asked Barrett to account for it, but Barrett sidestepped the question somewhat:
But the question wasn’t about whether she has made commitments about “any specific case”; it was more broadly about whether she has told anyone that Roe was wrongly decided, as Hawley clearly believes she has.
The response was emblematic of Barrett’s answers to many questions. A judicial nominee certainly has an interest in keeping their powder dry, and judicial nominees routinely decline to weigh in on undecided legal matters. But Trump and in this case Hawley have said things and taken stands that lead to some very logical questions, including ones that would seem to have pretty clear yes-or-no answers that wouldn’t necessarily involve prejudging legitimate legal questions that Barrett might face if and when she joins the court. Barrett, though, trod extremely carefully around all of it.
President Trump has nominated federal appellate judge Amy Coney Barrett to the Supreme Court. Barrett testified before the Senate Judiciary Committee this week. The committee has formally set a panel to vote on her nomination for Oct. 22.
Who is Amy Coney Barrett? A disciple of Justice Antonin Scalia is poised to push the Supreme Court further right
What happens next: Here’s how the confirmation process for Barrett will unfold
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