Why Sen. Mike Lee says Barrett would be even-handed Supreme Court justice

SALT LAKE CITY — Republicans, including Utah Sen. Mike Lee, portrayed Judge Amy Coney Barrett as fair and open-minded at her Supreme Court confirmation hearing Wednesday, while Democrats say there is a cloud hanging over her nomination because of writings about health care and other issues.

Lee cited several cases on the Chicago-based 7th Circuit Court of Appeals where he said Barrett followed the law as written rather than rule based on an external objective.

“I’ve got some colleagues on the other side of the aisle who seem to want to focus on statements made in your personal capacity and in your capacity as a private citizen and a member of your faith instead of actually cases dealing with abortion,” he said.

“I have a hunch that this is because your record on the 7th Circuit actually shows that you’re able to set aside your personal convictions because that’s what you’ve done when they’ve conflicted with your duty under the rule of law.”

Barrett faced a second and final round of questions from members of the Senate Judiciary Committee on Wednesday. The panel will question a series of witnesses, including BYU graduate and retired federal appeals court Judge Thomas Griffith, on Thursday before voting next week whether to advance President Donald Trump’s nominee to the full Senate.

Sen. Dick Durbin, D-Ill., congratulated Barrett for being the first Supreme Court nominee to be considered in the midst of an election.

“The obvious question is why. What’s the hurry?” he asked. “Well, because there is a political agenda here, and whether you are privy to it, part of it notwithstanding, it has to do with the Affordable Care Act.”

Republicans and the Trump administration, Durbin said, need a ninth justice by Nov. 10 to keep their promise to end the health care law.

“Unfortunately, that is the cloud, the orange cloud, over your nomination,” he said.

Trump's Supreme Court pick Barrett vows 'open mind' on Obamacare case

Amy Coney Barrett on Wednesday sought to allay fears raised by Democrats at her Senate confirmation hearing that she would be an automatic vote to strike down the Obamacare health care law, promising an "open mind" in approaching the case.

Sen. Chuck Grassley, R-Iowa, said Democrats are using scare tactics and distortions to frame Barrett as a threat to Obamacare based on an article she wrote criticizing Chief Justice John Roberts’ opinion in the case. The hearing, he said, is about Barrett’s qualifications to serve on the Supreme Court.

“It’s not about health care advocacy,” he said.

Lee said in addition to putting aside her personal convictions when deciding a case, Barrett has shown the ability to “expertly” determine what the law requires.

A Congressional Research Service review of her cases on the appeals court found her decisions don’t follow any overarching trend toward expanding or narrowing Fourth Amendment protections against illegal searches and seizure, he said.

“This is exactly what I would expect from a textualist-originalist on an issue that, like the Fourth Amendment, can actually be politically charged,” Lee said.

Barrett, he said, came down on the side of the government in some cases and for the defendant in others.

Lee also pointed to Barrett joining the 7th Circuit majority affirming the legality of a Chicago buffer zone law that places limits on pro-life activists demonstrating outside abortion clinics.

Barrett said she followed a binding Supreme Court precedent in deciding that case.

Lee opened his allotted 20 minutes talking about religious freedom, noting that his church, The Church of Jesus Christ of Latter-day Saints, is no stranger to persecution in the United States.

“I’m sure we are heretics in the eyes of many,” he said. “But we try to be really nice heretics.”

Lee noted that Catholics — Barrett is Catholic — have also been subjected to religious persecution, specifically through provisions in some state constitutions restricting public funds from going to certain religious institutions, including schools.

Asked how those provision intersect with religious freedom, Barrett said the Supreme Court recently made it clear that religious institutions can’t be discriminated against or excluded from public programs simply because they are religious.

Sen. Dianne Feinstein, D-Calif., the committee’s ranking Democrat, again pressed Barrett on a number of issues, including the Affordable Care Act, voting rights and age discrimination. Barrett again refused to answer, saying those issues could come before the Supreme Court.

Feinstein tried to get Barrett to weigh in on the legal doctrine of severability related to the ACA, the concept of whether the entire law can stand if one part of it is deemed unconstitutional. The Trump administration and Republican attorneys general, including Utah Attorney General Sean Reyes, argue in a case the high court is set to hear that the health care law should be struck down because its individual coverage mandate is illegal.

Barrett answered the question using the game Jenga as an example.

“If you picture severability being like a Jenga game, it’s kind of like, if you pull one out, can you pull it out while it all stands? If you pull two out, will it all stand?” Barrett said. “Severability is designed to say, ‘Well would Congress still want the statute to stand even with the provision gone?’”

Sen. Patrick Leahy, D-Vt., tried to pin down Barrett on President Donald Trump’s claim that he has the absolute right to pardon himself for a crime.

While Barrett agreed that no one is above the law, she declined to offer an opinion on the question because she said it calls for a legal analysis and that she has not gone through the judicial process.

“I find your answer somewhat incompatible,” Leahy said.

Also Wednesday, Utah Senate President Stuart Adams, R-Layton, and Utah House Speaker Brad Wilson, R-Kaysville, joined state legislative leaders across the country in a letter supporting Barrett’s confirmation.

“Judge Barrett has the right judicial temperament to serve on the nation’s highest court,” according to the letter to congressional leaders. “Her colleagues and students, of all political persuasions, have already expressed their admiration and support for her abilities, her judicial philosophy, and her reverence for the U.S. Constitution.”

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