Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and counsel to the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own. View more opinion on CNN.
Judge Amy Coney Barrett delivered a relatively flawless showing in her controversial Senate confirmation hearing on Tuesday. A few hours into the questioning a senator asked her to display the notes she was using to provide her detailed answers. She picked up a white notepad with nothing on it but the inscription, “United States Senate” as the hearing room erupted in laughter.
With six of her seven children, her husband and other family members watching proudly from the seats behind her, Barrett demonstrated a keen intellect, along with a formidable self-confidence leavened by just the right splash of humility under hours of senatorial questioning.
That questioning was mostly respectful. Those waiting to hear Sen. Kamala Harris deliver the kind of fierce prosecutorial attack she aimed at Brett Kavanaugh during his 2018 confirmation hearing instead heard her launch into what sounded like a stump speech about the evils of Donald Trump and his attempts to destroy the Affordable Care Act.
After a couple of fearsome sounding “Please answer with a yes or no” questions about nothing even remotely memorable, Harris lapsed into another monologue about Ruth Bader Ginsburg and abortion rights. Virtually all her questions were a retread of questions and topics covered earlier in the day. The vice-presidential candidate didn’t even lay a glove on the unscarred Barrett.
Also notable was the absence of focus on Judge Barrett’s active and devout Roman Catholicism. Politicians are afraid of offending the 70 million Roman Catholics in the United States. Although most Catholics probably don’t practice their faith with the fervor of Judge Barrett, throwing stones at a smart Catholic woman with a large family would have been a monstrous mistake – and it showed in the tepid questions directed at her. Republicans might have been fearful that her association with the charismatic Catholic People of Praise group would lead to her being unfairly characterized as a religious nut like a character from “The Handmaid’s Tale.” She, however, exceeded all expectations, never losing composure and maintaining that even judicial temperament.
Barrett deftly fielded questions about Roe v. Wade, honoring it as a reaffirmed precedent of the Supreme Court but denying it the title of “super precedent.” She patiently explained that according to legal experts “super-precedent” status is only awarded to legal cases like Brown v. Board of Education and other cases which are not disputed by “any serious person.” Nonetheless she declined any comment on overruling Roe, pledging an open mind and never allowing her “personal” opinions to interfere with a correct interpretation of the law.
In an obviously coordinated effort, Democrats complained about a “rushed” confirmation process taking place while Americans are already voting in a pandemic-hit presidential election. They displayed posters depicting seriously ill constituents stating their lives would be destroyed if the Affordable Care Act, also known as Obamacare, were ruled unconstitutional. The senators with their “Show & Tell” displays looked like they were pleading with Judge Barrett for favorable rulings in future cases because they have no way to prove her unqualified for a Supreme Court slot.
Throughout the hearing Democrats repeatedly asserted that Barrett would likely rule against the Affordable Care Act (ACA).
When confronted with the possibility that she might overturn the Affordable Care Act based on comments she made in a law journal article, Judge Barrett said even though it would be improper to talk about a pending case, there might be a way to save the statute using the judicial concept of “severability,” which sometimes permits an unconstitutional part of a statute to be “severed,” saving the remainder of the act. While not committing to how she would rule, Barrett claimed to have a completely open mind about the constitutionality of the ACA in its current form now that Congress has removed the “penalty” provision. “I have made no promises and I have no agenda,” she said repeatedly.
Much of the hearing focused on such matters as Barrett’s judicial philosophy of Constitutional “originalism” and “textualism.” She believes the Constitution should be interpreted with the original intent of the founding fathers in mind and statutes should be interpreted in accordance with the actual words or “text” used by legislators. Judges should not impose their own policy beliefs to advance changing cultural norms.
One of the more interesting lines of questioning of the day was pursued by Judge Barrett’s fellow mid-Westerner, Minnesota Democratic Sen. Amy Klobuchar. Klobuchar recalled going on hiking trips with her mother on snow covered trails in northern Minnesota. They would follow the footprints of deer or other animals hoping to get a glimpse at one. Klobuchar’s point: that the only way to determine Barret’s likely decisions on such controversial issues as abortion and the ACA is to follow her tracks in prior writings and published decisions.
Klobuchar added that following these tracks suggests to her that Barrett will deprive needy Americans of their health insurance and deny women the right of abortion as defined in Roe v. Wade. Barrett strongly disagreed, stating that she decides matters on a case by case basis applying the law as it is written, not as she would personally like the law to be. Throughout the day she invoked words of Justice Ruth Bader Ginsburg when asked similar questions at her own confirmation hearing about pending cases: “No hints, no previews, no forecasts.”
Judge Barrett’s journey through Klobuchar’s snow-covered trail was a great metaphor, but it only led to Harris’ uninspired video appearance during the early evening hours. Harris, who refused to attend the hearing in person because of Covid-19 fears, looked a bit harried as she questioned Barrett. When the senator was done, the judge still had the blank, white piece of Senate stationery sitting untouched before her. No one in “The World’s Greatest Deliberative Body” had asked a question tough enough to require even a scribbled note.