Barrett, vowing independence, is haunted by Trump’s demands

As Judge Amy Coney Barrett has strained to present herself this week as someone who would join the Supreme Court without having made up her mind on pivotal cases, she was haunted by the long and exceedingly public record of the voluble man who nominated her.

Like others who have found themselves politically entangled with President Donald Trump, Barrett has struggled over two days to separate herself from the trove of tweets and other pronouncements by Trump on his legal views and demands, many of which call into question the very notion of an independent judiciary.

He has said incessantly that he wants the Affordable Care Act overturned. After the death of Justice Ruth Bader Ginsburg, he said he needed a full complement of nine justices on the court to resolve any legal battle over the coming election, which he has warned without evidence will most likely be fraudulent. In his 2016 campaign, Trump declared that under his administration, the reversal of the Roe v. Wade decision establishing a federal right to abortion would “happen automatically, in my opinion, because I am putting pro-life justices on the court.”

The president, who early on recognized the power of Supreme Court confirmation fights to motivate voters on the right, has gone much further than his predecessors in publicly defining what he expected out of a Supreme Court justice. Barrett, in turn, has been under more pressure than past nominees to demonstrate her independence, often leaving Democrats sceptical of her claims of neutrality.

“Unfortunately, that is the cloud, the orange cloud, over your nomination as it comes before us here in the Senate Judiciary Committee,” Sen Richard Durbin, D-Ill, said Wednesday, speaking about how Trump loomed over the proceedings. “And it raises many questions.”

David Strauss, a constitutional law professor at the University of Chicago, said it was not unusual for presidents to seek ideological predictability in their Supreme Court nominees. What is different in this case, he said, is how far the president went beforehand in laying out his perceived requirements.

“Every president has something in mind, but he has just said it and is the sort of person who makes it impossible for the nominee to distance themselves,” Strauss said. “It puts the nominee in an awkward position.”

The shadow Trump has cast over the confirmation hearings reached beyond his views of the court and the attributes he sought in the justices he appoints. He has vilified federal judges who have ruled against him, shown disregard for the rule of law and ordered the Justice Department and federal law enforcement to pursue his personal political aims.

He has generally exhibited a view of the federal judiciary far different from other presidents, expecting those he named to the courts to share his views and to enforce them, even if they stretched the law. And he has refused to commit to accepting the outcome of the presidential election and a peaceful transfer of power should he lose. That has all made Democrats far less willing to accept the nominee’s assurances that she herself does not have a political agenda.

During questioning, Democrats repeatedly raised the alarm over how Trump’s tweets and comments had coloured their perceptions of Barrett. They noted that almost as soon as the vacancy occurred, the president urged Republicans to move swiftly to fill the seat “because we’re going to have probably election things involved here, you know, because of the fake ballots that they’ll be sending out.”

Democrats said such statements endangered the credibility of both Barrett and the court overall.

“Whether you like or not — and I suspect you probably do not — the president has placed both you and the Supreme Court in the worst of positions,” said Sen Patrick Leahy, D-Vt.

Barrett herself, an appeals court judge who has taught and written about constitutional law as a professor for nearly 20 years, has given Democrats plenty of reasons to doubt her neutrality. She criticized Chief Justice John Roberts for sustaining a central provision of the health care law. She signed a 2006 advertisement in support of overturning “the barbaric legacy” of Roe v Wade. And she reveres her mentor, former Justice Antonin Scalia, with whom she shares a strict originalist legal philosophy that has led her predecessors to overwhelmingly conservative outcomes.

Still, she sometimes appeared frustrated at Democrats’ efforts to portray her as Trump’s agent, emphasising that she would make decisions based only on the law and the particulars of a case. She said she was not “hostile” to the Affordable Care Act, which is scheduled to be the subject of a Supreme Court hearing the week after the election.

“I am my own person,” Barrett said, referring to the section of the Constitution that created the federal judiciary. “I’m independent under Article III, and I don’t take orders from the executive branch or the legislative branch.”

In a nod to the president’s favourite form of expression, Barrett said, “I can’t really speak to what the president has said on Twitter. He hasn’t said any of that to me.”

Despite her protests, Republicans evidently feared that the Democratic attacks were taking a toll — if not on her chances for confirmation, at least on her reputation and their own electoral fortunes by raising the prospect that she would, in line with Trump’s wishes, undo the Affordable Care Act.

To push back on that impression, Sen Lindsey Graham, R-SC, chair of the Judiciary Committee, opened the hearing Wednesday by carefully walking Barrett through a scenario where the Supreme Court could find one element of the law unconstitutional while upholding the rest.

Although the Trump administration favours overturning the entire law, Republicans have begun to raise the prospect that most of the law would be preserved, trying to ease voters’ fears that they could lose their health coverage during a pandemic. Barrett, who had mainly avoided talking about how she would rule, agreed that the so-called doctrine of severability was a legitimate approach to such cases.

On Tuesday, Sen Joni Ernst, R-Iowa, brought up a case where Barrett upheld a protest buffer zone around abortion clinics, trying to show that the judge was willing to rule against her own personal anti-abortion rights views.

But Democrats persisted in tugging at the ties between Trump’s loudly stated views and Barrett’s nomination.

“The president has said that reversing Roe v. Wade will happen automatically because he is putting pro-life justices on the court,” said Sen. Sheldon Whitehouse, D-RI. “Why would we not take him at his word?”

Democrats also noted that Barrett was nominated to the federal bench only months after the academic article she wrote in 2017 calling into question Roberts’ health care decision. They pointed out that the article came after Trump wrote on Twitter in 2015 that “if I win the presidency, my judicial appointments will do the right thing unlike Bush’s appointee John Roberts on Obamacare.”

Democrats questioned whether the article was tailored to the president’s objections.

“I just find it hard to understand that you were not aware of the president’s statements,” said Sen Amy Klobuchar, D-Minn.

Barrett said she was uncertain when she first learned of Trump’s deep opposition to the health care law but bristled at the suggestion that the article was written to curry favour with the administration and win her a court slot.

“I want to stress I have no animus toward or agenda on the Affordable Care Act, so to the extent you are suggesting this was, like, an open letter to President Trump, it was not,” she told Klobuchar.

Democrats also pressed Barrett about how she would approach the matter of Trump’s own legal exposure, given how frequently he has suggested that he has absolute power.

Leahy asked Barrett whether Trump had a right to pardon himself for any wrongdoing, after the judge had agreed with Leahy that, under the US legal system, no person is above the law.

Barrett hedged, saying that his query might be the subject of future cases and she wanted to avoid “opining on an open question when I haven’t gone through the judicial process to decide.”

Given her view that no person is above the law, Leahy said he found her answer “somewhat incompatible, but those are your answers.”

“You have a right to say what you want,” he added.

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