Judge Amy Coney Barrett submitted written responses to scores of questions from Senate Judiciary Committee members Tuesday night ahead of her expected confirmation to the Supreme Court next week.
Barrett repeatedly declined to discuss voting rights, coronavirus and the 2020 election, presidential pardon power, abortion, the Affordable Care Act and other issues that could appear before the Supreme Court in the coming months.
In response to a question from Democratic Sen. Mazie Hirono of Hawaii, mirroring a contentious moment during the hearings, Barrett again declined to say whether she believes “systemic racism” does or does not exist.
“I believe that racism persists in our country but, as I explained at the hearing, whether there is ‘systemic racism’ is a public policy question of substantial controversy, as evidenced by the disagreement among Senators on this very question during the hearing,” Barrett wrote. “As a sitting judge and judicial nominee, it would be inappropriate for me to offer an opinion on the matter.”
As with her two days of sparring with senators last week. Barrett does not offer specific answers to questions, citing the possibility of ongoing litigation and that some queries raised public policy controversies or “abstract legal issues or hypotheticals.”
In her responses, Barrett repeated a version of an answer to questions about previous Supreme Court rulings nearly 40 times. “It would not be appropriate for me to opine further on this question; as Justice Kagan explained, it is not appropriate for a judicial nominee to ‘grade’ or give a ‘thumbs-up or thumbs-down’ to particular cases,” she repeatedly states.
The Senate Judiciary Committee is scheduled to advance Barrett’s nomination Thursday, and the full Senate vote to confirm her to the bench is expected next Monday.
Privacy and climate change
Continuing another key theme from last week, Barrett declined to say whether a 1965 Supreme Court ruling striking down a Connecticut law that made it a crime to provide contraception to married couples was settled law. The ruling in Griswold v. Connecticut that personal decisions between spouses were covered by a constitutional right to privacy became a foundation of Roe v. Wade, the 1973 decision that legalized abortion nationwide.
“As I said at my hearing, because Griswold lies at the base of substantive due process doctrine, an area that remains the subject of ongoing litigation, I cannot opine on it,” Barrett wrote. “But I do not think Griswold is in danger of going anywhere.”
On the climate crisis, Barrett drew criticism from Democrats when she would not say if she agrees with the scientific consensus that climate change is man-made. Several times in her written responses, Barrett says her views on the issue aren’t relevant to her job as a judge.
“If a case comes before me involving environmental regulation, I will carefully review the record and apply the relevant law to the facts before me,” Barrett states in a response to Sen. Patrick Leahy, a Vermont Democrat.
Barrett also said at several points that the Supreme Court had recently described “climate change” as “controversial” and a “sensitive political topic.” She said it therefore would not be appropriate “to opine further on any subject of political controversy.”
She cited a 2018 case in which the conservative court majority had overturned a nearly 40-year-old Supreme Court ruling that had allowed unions to gather dues even from nonmembers for collective-bargaining activities.
That opinion, written by Justice Samuel Alito, at one point asserted, “Unions can also speak out in collective bargaining on controversial subjects such as climate change, the Confederacy, sexual orientation and gender identity, evolution, and minority religions.”