Why Supreme Court Nominee Amy Coney Barrett Deflected Questions About How She Would Rule

The conservative-leaning judge cited the "Ginsburg rule" in her Senate confirmation hearing

Amy Coney Barrett
Drew Angerer/Getty. Photo: Drew Angerer/Getty

Critics of Supreme Court Justice nominee Amy Coney Barrett say the judge hasn't been entirely consistent in her answers during this week's Senate confirmation hearings.

As the Senate began its hearings on Barrett's nomination to the high court, Democrats were hopeful they might get the judge to express her opinions on topics including health care, same-sex marriage and abortion. While Barrett, 48, has made her opinion on some past rulings known, she has been less candid when it comes to others.

That murkiness, she said, is by design and stems from a long-held tradition amongst Supreme Court nominees to adhere to the so-called "Ginsburg rule," so-named for late Justice Ruth Bader Ginsburg, whom Barrett would replace.

“Justice Ginsburg, with her characteristic pithiness, used this to describe how a nominee should comport herself at a hearing," Barrett said Tuesday. "'No hints, no previews, no forecasts.' That had been the practice of nominees before her. But everybody calls it the Ginsburg rule, because she stated it so concisely."

As the Associated Press notes, Ginsburg did state those words at her own confirmation hearing, some 27 years ago. But the liberal-leaning justice was more forthcoming when responding to some questions about her own opinions on prior rulings, such as those regarding abortion.

By contrast, Barrett has demurred when asked about her opinion on the landmark 1973 ruling in Roe v. Wade that protected a woman's ability to have an abortion.

When asked Tuesday by California Sen. Dianne Feinstein whether she believed that Roe was wrongly decided, Barrett responded that she could not "pre-commit" to an answer.

That echoes answers given by previous Supreme Court nominees under both Democratic and Republican presidents — a decades-long history some have decried as sapping the confirmation hearings of any substance.

“I completely understand why you are asking the question,” Barrett told Feinstein on Tuesday. "I can’t pre-commit or say, ‘Yes, I’m going in with some agenda,’ because I’m not. I don’t have any agenda."

As The New York Times reported, Barrett has signed her name to ads opposing abortion as well as one opposing the Obama administration’s contraception mandate in 2012. Barrett also reportedly was once a member of Notre Dame University’s anti-abortion group Faculty for Life.

Democrats have also pressed Barrett on how she feels about other social issues, such as gay marriage.

Asked whether she agreed or disagreed with late Justice Antonin Scalia’s dissenting opinion on Obergefell v. Hodges, the 2012 case that granted marriage rights to same-sex couples nationwide, Barrett said: "I have never discriminated on the basis of sexual preference and would not discriminate on the basis of sexual preference."

(Barrett later apologized after Sen. Mazie Hirono, a Democratic lawmaker from Hawaii, said her choice of the phrase "sexual preference" was “offensive and outdated,” as it implies a person’s sexual orientation is a choice. Defenders of Barrett noted that Democratic presidential nominee Joe Biden has also used the term.)

Some legal analysts say Barrett's vague answers concerning both abortion and gay marriage leave open a window of opportunity for the court to overturn both historic rulings, should the judge — widely seen as a staunch conservative in the vein of Justice Scalia — be confirmed, which is likely given the Republican majority in the Senate.

GOP lawmakers have praised Barrett's credentials and background during the week-long confirmation hearings and said it was unfair to assume how she might rule.

By contrast with her tone on abortion and gay marriage, Barrett was more forthcoming when it came to segregation.

On Tuesday, the nominee said the landmark Brown v. Board of Education of Topeka desegregation decision was a "super-precedent" that would be "unthinkable" to overrule. She added that Marbury v. Madison, an 1803 ruling which gave courts the authority to strike down laws as unconstitutional, was also deemed a "super-precedent."

However, Barrett told Minnesota Sen. Amy Klobuchar that Roe was not among a host of rulings that can be considered "super-precedents."

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