Barrett won’t say Roe was wrongly decided. That once was a non-negotiable for Hawley
Supreme Court nominee Amy Coney Barrett refused to directly answer questions Tuesday about her stance on Roe v. Wade, failing to hit a benchmark once set by Missouri Republican Sen. Josh Hawley.
During the second day of confirmation hearings, Barrett was asked by California Democratic Sen. Dianne Feinstein multiple times whether she agreed with the late Justice Antonin Scalia, Barrett’s mentor, that Roe v. Wade, which established a woman’s constitutional right to an abortion, was wrongly decided.
Barrett, a federal appeals judge, cited Justice Elena Kagan, one of President Obama’s appointees, in saying she “was not going to grade precedent or give it a thumbs-up or a thumbs-down.”
“It would be wrong of me to do that as a sitting judge,” said Barrett. “Whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another in a pending case.”
She added that she has never promised to rule a certain way on specific cases.
“I’m not willing to make a deal — not with the committee, not with the president,” she said. “I’m independent.”
Hawley, a member of the Senate Judiciary Committee, was specific in July about his anti-abortion stance, telling The Washington Post, “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided. By explicitly acknowledged, I mean on the record and before they were nominated.”
Hawley has repeatedly said that he believes Barrett meets his test of opposition to Roe, based on her record. However, he said two weeks ago at his meeting with Barrett that he would not ask her directly if she was in favor of overturning the landmark case.
“I hope that no senator on the other side will ask her to pledge her vote one way or another. And I certainly won’t,” Hawley said then. “I think the judge’s record as to her understanding of judicial role and Roe and how Roe fits into that is pretty clear. It certainly fits my threshold.”
His office did not respond to a request for comment Tuesday about Barrett’s stance on Roe v. Wade.
Later in the hearing, Hawaii Democratic Sen. Mazie Hirono used Hawley’s words to again press Barrett on Roe. She presented a poster that juxtaposed Hawley’s July comments with more recent statements that Barrett had met his standard.
Hirono told the judge she was concerned about “your willingness to overturn Roe v. Wade... which Sen. Hawley fully expects you to do because you have met his litmus test.”
In his own questioning of Barrett Tuesday, Hawley asked her specifically if she intended to make rulings based on Scalia’s views.
“If you confirm me, you’re getting Justice Barrett, not Justice Scalia,” Barrett said. “I share his method of interpreting the text, but I didn’t agree with him in every case, even when I was clerking. Then, he could tell me what to do, and even if I disagreed, I had to go his way. But the fact that we share the same approach does not mean that we would always reach the same result.”
Hawley also asked Barrett about signing a 2006 newspaper ad sponsored by an anti-abortion group that defended the right to life. Barrett, who said she signed the advertisement on the way out of church, argued that she saw a distinction between her personal moral and religious views and her role of applying law as a judge.
“I signed that almost 15 years ago in my personal capacity when I was still a private citizen,” Barrett said. “Now I’m a public official, and so while I was free to express my private views at that time, I don’t feel like it is appropriate for me anymore, because of the canons of conduct, to express an affirmative view at this point in time.”
Some Republicans have refused to stand with Hawley regarding his demand for explicit opposition to Roe.
Texas Republican Sen. Ted Cruz told ABC last month, “I don’t believe that’s the right question to ask,” when asked about Hawley’s call for Republicans to only vote for potential justices who would acknowledge Roe was incorrectly decided; Cruz said he felt it was more important to focus on a justice’s record.
Nebraska Republican Sen. Ben Sasse told The Atlantic Monday that he opposed the idea of potential justices being asked to pre-rule on cases.
“I like Josh Hawley personally, but I think his litmus test is a very bad idea,” Sasse told The Atlantic. “I think it’s the right acting like the left.”
McClatchy’s Bryan Lowry contributed to this report.
This story was originally published October 13, 2020 at 12:11 PM.
