“If I express a view on a precedent one way or another … it signals to litigants that I may tilt one way or another on a pending case,” Barrett added.
Supreme Court nominees typically avoid answering specific questions about how they would rule in cases that could come before the court. But Barrett’s responses stymied Democrats, who have zeroed in on health care as their top issue in the Supreme Court fight — in particular, protections for Americans with pre-existing health conditions. Those protections were enshrined in the Affordable Care Act and could be eliminated as a result of a pending case before the court.
“These are life or death questions for people,” said Sen. Dianne Feinstein of California, the committee’s ranking Democrat. “There is really great concern about…your views on that case that’s coming up.”
Sen. Richard Blumenthal (D-Conn.), meanwhile, said Barrett has “so far perfected the art of non-answers.”
Senate Republicans quickly came to Barrett’s defense, arguing that Democrats were asking her to violate the so-called “Ginsburg rule,” under which the late Justice Ruth Bader Ginsburg said it “would be wrong… to say or to preview in this legislative chamber” how she would vote on a specific issue that could come before the court.
“It is imperative that you uphold those standards and I applaud you for doing so,” said Sen. Mike Lee (R-Utah). “On no planet is it appropriate for anyone to suggest that that’s a political talking point to suggest ‘I’m not going to indicate how I’m going to rule in a particular case.’”
In an interview, Sen. Ted Cruz (R-Texas) said that “so far not a single Democrat has laid a glove on Judge Barrett, and they’ve barely tried.”
The Trump administration is seeking to invalidate the entire 2010 law in a case known as California v. Texas, and the Supreme Court will hear oral arguments in the case beginning on Nov. 10, just days after the election. Senate Republicans are aiming to confirm Barrett to the high court by the end of the month, which would ensure that she will be able to rule on the case, despite Democratic calls for her recusal.
“It’s a case that’s on the court’s docket, and the canons of judicial conduct would prohibit me from expressing a view,” Barrett said.
Specifically, Barrett said the legal issue at hand in California v. Texas was different than the previous Supreme Court cases challenging the 2010 law. And she pushed back on the notion that her criticisms of past rulings upholding the Affordable Care Act portend “hostile” future rulings on the law. Before becoming a federal judge, Barrett criticized Chief Justice John Roberts’ decision to uphold the law.
“I am not hostile to the ACA. I’m not hostile to any statute that you passed,” Barrett said. “I apply the law, I follow the law, you make the policy.”
Barrett also refused to say whether she agrees with her mentor, Justice Antonin Scalia, that Roe v. Wade — the landmark 1973 abortion case — was wrongly decided, noting that there are ongoing cases related to abortion laws.
“You would be getting Justice Barrett, not Justice Scalia,” Barrett said. “I don’t think that anybody should assume that just because Justice Scalia decided a decision a certain way that I would too.”
“I can’t pre-commit and say, ‘yes, I’m going in with some agenda,’” Barrett added. “… I have no agenda.”
Barrett emphasized that she did not make any “pre-commitments” to the president on specific issues because such actions would be a “gross violation of judicial independence.”
Barrett, a devout Catholic, also pledged to set aside her religious beliefs if she is confirmed to serve on the high court. Under questioning from Judiciary Committee Chairman Lindsey Graham (R-S.C.), Barrett said “I can” and “I have done that in my time on the 7th Circuit” Court of Appeals, where she currently serves.
In the coming weeks the high court could also be forced to weigh in on the presidential election results if there are disputes in individual states. Democrats have called on Barrett to recuse herself from those potential cases given recent statements from the president about having a nine-justice court in time for the election.
Barrett did not commit to recusing herself from those cases, but said she would “fully and faithfully consider the law of recusal.” She also declined to say whether the Constitution gives the president authority to delay the election. Only Congress can move the date of an election.
Senate Republicans have accused Democrats of anti-Catholic bias toward Barrett, but so far Democrats have declined to raise her religion during the confirmation hearings.
The Senate Judiciary Committee kicked off Barrett’s confirmation hearings Monday, with opening statements from all 22 senators on the panel and the nominee.
Tuesday marked Barrett’s first time answering questions from senators as a Supreme Court nominee. She will have a second day of questions Wednesday. Thursday’s session will consist of an outside panel of experts.
Graham has also scheduled a committee vote to send her nomination to the Senate floor on Thursday, though a final vote on Barrett’s nomination is slated for Oct. 22.
Trump nominated Barrett to fill the seat of Ginsburg, who died Sept. 18. Senate Democrats have accused Republicans of hypocrisy for moving forward with confirming Barrett so close to Election Day, after blocking President Barack Obama’s nominee Merrick Garland in 2016. But Senate Republicans have argued that 2020 is different because the White House and the Senate are controlled by the same party, unlike in 2016 when a Democrat was in the White House.
Senate Republicans are aiming to confirm Barrett before the Nov. 3 election. Trump has suggested that he will need nine justices on the Supreme Court in the event of a contested election.
Barrett’s nomination comes as control of the Senate remains a toss-up. Senate Republicans are hoping that the Supreme Court hearings will energize conservative voters, as Trump’s poll numbers continue to lag behind former Vice President Joe Biden nationally and in key swing states.
Burgess Everett and John Bresnahan contributed to this report.