During a marathon hearing Tuesday for President Donald Trump's third nominee to the U.S. Supreme Court, Democrats hammered away at Judge Barrett's potential impact in a pending high court case involving the ACA and future litigation over the election results. They also pushed her to explain her views on Roe v. Wade and LGBTQ rights.
Here, Law360 breaks down 7 highlights.
"A Female Scalia"?
Judge Barrett has long associated herself with the judicial philosophy of her former boss, Justice Antonin Scalia, and progressives fear she would vote in similar ways as the late conservative firebrand on LGBTQ rights, abortion and more.
Responding to the question of whether she would be a "female Scalia" from Senate Judiciary Chairman Lindsey Graham, R-S.C., the onetime clerk for the late justice said she would forge her own path on the high court, however similar their views might be.
"We Knew That Our Faith Would Be Caricatured"
Judge Barrett's strong Catholic faith has been a subject of controversy ever since she was nominated to the Seventh Circuit, when Democrats questioned whether her academic writing on "Catholic judges" suggested her religious views would interfere with her judging. Republicans in turn accused Democrats of anti-religious bias.
Judge Barrett referred to that controversy in an answer to Graham about what it was like to be nominated to the Supreme Court.
"We knew that our lives would be combed over for any negative detail," she said. "We knew that our faith would be caricatured, we knew that our family would be attacked, and so we had to decide whether those difficulties would be worth it because what sane person would go through that if there wasn't a benefit on the other side."
Feinstein Finds Barrett's Roe v. Wade Dodge "Distressing"
With Judge Barrett potentially expanding the Supreme Court's conservative majority, Democrats fear she would cast the deciding vote to overturn the 1973 landmark abortion precedent, Roe v. Wade — which has been a central aim of the conservative legal movement for decades.
Citing Justice Scalia's dissent in the 1992 Planned Parenthood v. Casey
decision — which reaffirmed Roe's core holding — Sen. Dianne Feinstein, D-Calif., asked Judge Barrett point-blank: "Do you agree with Justice Scalia's view that Roe was wrongly decided?"Judge Barrett refused to answer, saying it would "actually be wrong and a violation of the canons for me to do that as a sitting judge."
Feinstein said it was "distressing not to get a straight answer."
"Would Not Discriminate on the Basis of Sexual Preference"
Judge Barrett also declined to answer whether she agreed with Justice Scalia that the U.S. Constitution does not afford LGBTQ people the right to marry, once again triggering Feinstein's consternation.
"You identify yourself with a justice, that you like him would be a consistent vote to roll back hard-fought freedoms and protections for the LGBT community," the committee's ranking Democrat said.
Judge Barrett responded by saying, "I have never discriminated on the basis of sexual preference and would not discriminate on the basis of sexual preference."
LGBTQ advocacy groups were quick to point out on social media that the term "sexual preference" is dated, due to its implication that sexuality is a choice. One group, Lambda Legal, even called it a "dog whistle."
The judge later said she "did not mean to imply that I think it's not an immutable characteristic or that it's solely a matter of preference."
No Recusal Promise for Possible Election Case
With Republicans rushing to confirm Judge Barrett before the Nov. 3 presidential election, Democrats have rung alarm bells that she could cast the decisive vote siding with Trump in a high court case over the results.
Trump has been laying the rhetorical groundwork to challenge the election results for months, calling the surge in mail-in voting occasioned by the coronavirus pandemic a Democratic "scam" and recently saying that confirming a ninth justice quickly was necessary to resolve a high court case. Sen. Patrick Leahy, D-Vt., asked Judge Barrett whether she would recuse herself in such a case, but got no commitment from the nominee.
Judge Barrett said she couldn't offer an opinion on the matter without "short-circuiting" the normal recusal process.
"We Wept Together" Over George Floyd's Killing
One of the rawest moments of the hearing came in response to a question from Sen. Dick Durbin, D-Ill., about whether Judge Barrett had watched the video of a Minneapolis police officer kneeling on the neck of George Floyd while he pled for air, which set off a nationwide reckoning around police brutality toward the African American community.
Judge Barrett, who has two adopted children who are Black, said that it was "very, very personal for my family" and that she "wept together" with her 17-year-old daughter, Vivian.
"I Have No Hostility to the ACA"
A central focus of Democrats on Tuesday was the role Judge Barrett could play in a case pending before the Supreme Court on the constitutionality of the Affordable Care Act, with some deeming the nominee a "judicial torpedo" being aimed at President Barack Obama's signature health care law.
The court is set to hear California v. Texas, the Republican challenge to the ACA that is being supported by Trump, just a week after the presidential election.
During his questioning of Judge Barrett, Sen. Chris Coons, D-Del., invoked an article she wrote seemingly criticizing Chief Justice John Roberts' 2012 decision upholding the law. In the 2017 book review, she wrote that Justice Roberts had "pushed the Affordable Care Act beyond its plausible meaning to save the statute."
"I think those are fighting words as an originalist and a textualist," Coons said.
"I wouldn't say they're fighting words from the article that you read for me because the California v. Texas case involves a very different issue," she said. "I have no hostility to the ACA or any other law."
--Additional reporting by Andrew Kragie. Editing by Breda Lund.
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