After Final Queries, Barrett Hints Again ACA Could Survive

Law360 (October 21, 2020, 8:52 PM EDT) -- U.S. Supreme Court nominee Amy Coney Barrett has fielded hundreds more written questions from Democratic senators, largely declining to address topics ranging from presidential power and birthright citizenship to climate change and same-sex marriage — although she did discuss the Affordable Care Act.

The Seventh Circuit judge responded to more than 400 follow-up questions that senators submitted after last week's confirmation hearings. The Judiciary Committee published her 184 pages of questions for the record late Tuesday.

Judge Barrett avoided getting specific about the Affordable Care Act, whose constitutionality is once again before the court in a case set for argument Nov. 10. However, she gave more hints that she might not vote to strike down the entire law, as Democrats have warned.

The judge noted that the pending case involves three separate questions and said "the plaintiffs would have to clear all three hurdles to win" and get the whole ACA overturned. Republican senators say the justices could find the modified individual insurance mandate unconstitutional but find they can sever that element and leave the rest of the law in place.

She quoted from Justice Brett Kavanaugh's plurality opinion in a case about political robocalls decided in July, writing that courts generally should "presume … that an unconstitutional provision in a law is severable." Democrats have seized on those words in amicus briefs arguing to preserve the 2010 health care overhaul.

Aside from the ACA, Judge Barrett declined to address a wide variety of topics Democrats raised. She said many previous nominees have avoided addressing issues that could come before them in court, but Democrats charged that she dodged more questions than usual.

Asked again whether the president can unilaterally move an election, she said, "It would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals. Such questions can only be answered through the judicial process."

The nominee said it would be improper to say whether the 14th Amendment guarantees birthright citizenship "because the meaning of this provision is the subject of ongoing litigation," perhaps referring to a Tenth Circuit case about the territory of American Samoa. President Donald Trump in 2015 called for ending birthright citizenship, though experts say he can't do it unilaterally.

Climate change couldn't be addressed because it relates to political debates, the judge said. She firmly rejected the premise of a question from Sen. Sheldon Whitehouse, D-R.I., who accused her of contradicting herself during the hearing.

"My responses were consistent and correctly capture my views," she said. "My views on the subject are not relevant to my job as a judge."

Judge Barrett pointed to Justice Samuel Alito's majority opinion in a 2018 labor law case, where he listed climate change among "sensitive" and "controversial" topics.

Sen. Chris Coons, D-Del., asked why she would endorse the 1967 ruling that protected interracial marriage but not the 2015 decision that protected same-sex marriage.

The judge said she would comment on the former because it follows directly from the landmark precedents on racial segregation, which she had publicly endorsed and scholars agree is unlikely to face challenges.

During last week's hearings, she used the term "sexual preference" rather than "sexual orientation," a word choice that LGBTQ advocates decried as perpetuating a myth that sexuality is a choice.

Judge Barrett wrote that she did "not mean to imply that sexual orientation is not an immutable characteristic" but declined to say whether it is immutable because the question could come up in future cases.

"I fully respect the rights of the LGBTQ community, and I reject discrimination on any basis," she added.

The top Senate Democrat, Chuck Schumer of New York, questioned that in a press call Wednesday, pointing to a new Associated Press report that the religious school network where she spent two years on the board did not admit students with same-sex parents or allow gay teachers. Republicans and the judge herself have said her personal views have no bearing on her rulings.

Sen. Cory Booker, D-N.J., asked how she would refer to transgender people in court.

"It has been my practice to use the names and pronouns that litigants use in their filings," the judge replied. That contrasts with a Trump appointee on the Fifth Circuit who in January rejected the "quixotic undertaking" of using preferred pronouns.

Booker asked whether a judge could be removed from a case because of sexual orientation or gender identity. Judge Barrett said it would be inappropriate to opine outside the facts of a specific case.

The senator also asked whether a judge's race or ethnicity can disqualify a judge in a case, citing Trump's 2016 assertion that Mexican heritage should disqualify a judge from overseeing a case against him. Judge Barrett said she could not "opine on the statements of any political figure or on any subject of political controversy." That marked a contrast with Trump's first high court pick, Justice Neil Gorsuch, who called the president's attacks on judges "disheartening" at his 2017 confirmation hearings.

Although nearly all the written questions for the record came from Democrats, Republicans submitted a handful of queries. She declined to get into specifics on topics ranging from pandemic restrictions on religious institutions to judges' power under the Administrative Procedure Act.

Sen. John Cornyn, R-Texas, gave her another chance to rebut Democratic statements about her dissent in a gun-rights case that she had identified as the most significant matter she's handled in three years on the bench.

In Kanter v. Barr, she argued that an originalist understanding of the Second Amendment doesn't allow governments to ban gun ownership for people convicted of nonviolent felonies unless they're shown to be dangerous.

The case drew on the legal idea of "virtue-based restrictions" on civic rights, like voting, and individual rights. Cornyn said Democrats suggested Judge Barrett considered felons virtuous enough to own guns but not to vote.

The judge pushed back.

"I do not think that is a fair characterization of my dissent," she wrote. "That case dealt with the Second Amendment, not the right to vote. And my opinion did not assert that convicted felons are not virtuous enough to vote."

The judge's responses also underlined her commitment to textualism and originalism, doctrines that focus on the words of legal texts as they were understood when they became law.

"A judge may consider practical consequences when the governing law applicable to the judge's decision so permits," she said, but otherwise judges should be "leaving policy consequences and policy decisions to the political branches."

She said legislative history — the reports, drafts, speeches and other documents generated in the lawmaking process — shouldn't have much weight except for figuring out the ordinary public meaning of a text at the time it became law.

The next step in Judge Barrett's elevation to the Supreme Court is a Judiciary Committee vote Thursday, likely along party lines, to send the nomination to the Senate floor. A final confirmation vote is expected Monday.

--Editing by Bruce Goldman.

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