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, Gorsuch 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 somehow might have 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 came 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:
SEN. CORY BOOKER (D-N.J.): Do you agree with President Trump’s view that a judge’s race or ethnicity can be a basis for recusal or disqualification?BARRETT: It would be inappropriate for me, as a sitting judge and as a judicial nominee, to opine on the statements of any political figure or on any subject of political controversy.
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.”
SEN. DIANNE FEINSTEIN (D-CALIF.): According to federal law, is it legal to vote twice in a single federal election?BARRETT: As a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals. Nor would it be appropriate for me to opine on the statements of any political figure or on any subject of political controversy.
It was clear Feinstein’s question pertained to something Trump had said — Trump seemed to urge his supporters at a rally to attempt to vote twice — but the question Barrett 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:
SEN. RICHARD J. DURBIN (D-ILL.): On July 23, 2019, President Trump said at a speech, “I have an Article II, where I have the right to do whatever I want as president.” Is that statement legally accurate? Please explain why or why not.BARRETT: Article II provides in part that “[t]he executive Power shall be vested in a President of the United States of America.” Because the scope of the executive power is a frequent subject of litigation, it would not be appropriate for me, as a sitting judge and as a judicial nominee, to opine further on the matter.
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 that when a senator invoked Trump in a question, it 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:
BLUMENTHAL: Please state whether murder on federal land is a federal crime.BARRETT: As a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals.
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:
BLUMENTHAL: Senator Hawley has since said that he will vote in favor of your nomination. Have you “explicitly acknowledged” to Senator Hawley or anyone else that Roe v. Wade was wrongly decided?BARRETT: As I said at the hearing, I have made no commitments to anyone regarding how I would rule in any specific case.
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.
