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Barrett Avoids Slips as Democrats Press on Abortion, Health Care

Democrats grilled U.S. Supreme Court nominee Amy Coney Barrett for hours about abortion rights, health-care law, guns and election disputes but made little progress derailing her likely Senate confirmation and a strengthened conservative majority on the court.

Why would Democrats - or anyone, for that matter - grill Amy Coney Barrett on abortion rights, healthcare laws, guns, etc? Those seem completely irrelevant to her prospective job as a supreme court justice. Instead they ought to be grilling her on her legal experience, her criminal record (if any), her ability to work with the current justices, her personal health (i.e. whether she will be healthy enough for long enough to perform her duties), etc.

It seems to me like if the government needs to know Amy Coney Barrett's political beliefs before appointing her as a supreme court justice, then it might as well be a directly elected position. Like, if one does is against abortion and can muster the required majority in Congress to make it illegal, then it doesn't matter what Amy Coney Barrett's political beliefs are because she will have to impose the law. The answers to that linked question say that supreme court justices don't make new laws, only reinterpret them; but even then 1) we would expect Democrats to be grilling Amy Coney Barrett on whether she's an Originalist or Living Constitutionalist, not her political beliefs directly; and 2) Congress could just pass laws that leave no room for interpretation.

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    I find the close votes (and presumably the downvotes) pretty silly, since I am mostly quoting Bloomberg; in fact I tried to broaden Bloomberg's quotes with "or anyone, for that matter". Besides, if this is an attempt to discredit Democrats, then this question or this one could easily be an attempt to discredit Republicans ... – Allure Oct 14 at 0:30
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    Just like this one is an attempt to make Democrats look good, and even arguably this one is an attempt to discredit all Americans, etc. – Allure Oct 14 at 0:32
  • Watch Prime Minister's Questions. It happens once a week and can be very amusing. Here is a link to the 7 October 2020 set of questions. Question Hour was even more interesting before it had to go virtual. Worldwide, grandstanding is what politicians do when given even half of a chance to do so. – David Hammen Oct 14 at 6:18
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She does not have anything to do with these issues now, but she will have to deal with that when she is in SCOTUS.

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It seems to me like if the government needs to know Amy Coney Barrett's political beliefs before appointing her as a supreme court justice, then it might as well be a directly elected position.

While having federal judges be elected positions might be better, or might be worse, whichever is the case is irrelevant. Making federal judges be elected positions would require a constitutional amendment.

Like, if one does is against abortion and can muster the required majority in Congress to make it illegal, then it doesn't matter what Amy Coney Barrett's political beliefs are because she will have to impose the law.

That definitely is not the case. The Supreme Court does not have to follow the law. The Court has found that several laws passed by the Congress and signed by the President to be unconstitutional. The key arguments in the many Republican-led cases against the ACA (which currently is the law) is that that law is unconstitutional.

The Supreme Court has also found state and local laws to be unconstitutional. Roe v Wade is a prime example. There is no federal level law that says that abortion is legal. The Supreme Court instead struck down a state law regarding abortion, and by implication, other state laws regarding abortion. The Supreme Court has on occasion reversed previous Supreme Court findings. It took a long time for the Court to overturn its previous separate but equal decision in Plessy v Ferguson, but it eventually did do so.

This lack of a federal law makes Roe v Wade suspect and subject to reversal. Suppose a federal law that guarantees the right to an abortion is passed. If that happens, there will be constitutional challenges to that law.

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  • Are you saying that the constitution is vaguely worded on topics such as the ACA and abortion? If so, why not just amend the constitution to be clearly worded? – Allure Oct 14 at 1:30
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    @Allure "Just" is one of the most dangerous words in the English language. "Just" amend the constitution?? By design, the constitution is very, very hard to amend. – David Hammen Oct 14 at 4:05
  • @Allure Constitutions in general but the rather short US Constitution in particular are often very vaguely worded because they are expected to remain in force mostly unchanged for a very long time, acting as a framework within which to create ordinary laws. Abortion is typically an issue that is regulated at statute law level, not at constitutional level. – Jan Oct 14 at 5:57
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The answer seems a bit obvious. Am I missing something?

What does Amy Coney Barrett have to do with abortion, healthcare, etc?

As a Supreme Court Justice she will have to make decisions on a broad range of issues, including abortion, healthcare, gun rights, etc.

Why would Democrats - or anyone, for that matter - grill Amy Coney Barrett on abortion rights, healthcare laws, guns, etc?

First of all, because they can. Article II doesn't go into detail on what "the Advice and Consent of the Senate" mean. They can ask nominees whatever they want and they can vote based on character and political beliefs. To give an example, the significant part of Brett Kavanaugh and Clarence Thomas hearings was dedicated to the allegations of sexual misconduct on behalf of the nominee.

Another reason is that those are the issues people care about and take personally. For senators, public hearings are a way to inform their constituents about the court, and the impact on their lives. And some of their constituents are interested to know whether future Justice Barrett will vote to strike down ACA or to ban abortions. And if her personal beliefs will influence her decisions as a Supreme Court Justice it makes sense to ask her about them as well.

For the same reason, Republican senators grilled Elena Kagan on same-sex marriage, abortions, and enemy combatants.

Instead they ought to be grilling her on her legal experience, her criminal record (if any), her ability to work with the current justices, her personal health

There's not a lot to discuss. Amy Coney Barrett was already confirmed to serve as a circuit judge in 2017. We can assume that if there were disqualifying issues with her legal experience, criminal record, and mental/physical health they would have been uncovered during those hearings.

It seems to me like if the government needs to know Amy Coney Barrett's political beliefs before appointing her as a supreme court justice, then it might as well be a directly elected position.

This isn't really necessary. The Constitution already requires her to receive the approval of directly elected politicians. And the public definitely needs to know Amy Coney Barrett's political beliefs, especially if they influence her decisions as a judge.

Like, if one does is against abortion and can muster the required majority in Congress to make it illegal, then it doesn't matter what Amy Coney Barrett's political beliefs are because she will have to impose the law. ... Congress could just pass laws that leave no room for interpretation.

It seems you're trying to argue that SCOTUS doesn't have any real impact as Congress can just rewrite laws over and over again. Evidently, this is not true, as SCOTUS substantially changed the interpretation of the law many times (see Obergefell v. Hodges).

Also, to "muster the required majority in Congress" is not an easy task. You need the President and the rock-solid majority in both houses to pass the law and plow it through a hostile SCOTUS. Lately, neither party was able to keep this kind of domination for more than a couple of years.

we would expect Democrats to be grilling Amy Coney Barrett on whether she's an Originalist or Living Constitutionalist, not her political beliefs directly

No one would expect that. It makes sense to ask her about the potential decision she'll make if confirmed. And "I'm voting against Judge X because she will ban abortions" is much easier to understand than "I'm voting against her because I have a theoretical disagreement with her on the subject of statutory interpretation".

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The answer to your question depends on whether you believe the Supreme Court lends itself to becoming composed of activist judges or not. Each party believes or at least purports to believe (with varying degrees of validity and with varying degrees of seriousness) that judges appointed by leaders of the other party are, or will be, activist judges. Democrats, by and large, are much more strenuous in this belief against Republican judges than the other way around; compare ACB and Cavanaugh under Trump, where these issues got way more coverage in the media, to Sotomayor under Obama, where they got way less coverage (at least to the best of my recollection). As ACB will be a Republican-appointed justice, the questions come from the Democrat side, and are therefore more pointed. So that's the "why" of the questions. As for the "what", first a definition (from the linked Wiki page):

Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."[6]

If one believes that Supreme Court judges are to be activist judges, then the judge's belief system is important. As such, views on abortion are important, because an activist judge is likely to overturn (or back a movement by other judges in favor of overturning) the decision of Roe v. Wade, a core Supreme Court case for abortion rights in the USA. Views on health care are important; an activist judge might overturn the Supreme Court ruling that the ACA is legal (as a tax) (I'm unable to find the name of the case in which that ruling was made, someone with better Google-fu might know it by name). Views on guns are important, because an activist judge may interpret the words "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" as restricting the right to bear arms to only those enrolled in the military, or something else. Views on gay marriage similarly, and other issues.

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    The SCOTUS does not exist in a political vacuum. Interpreting the constitution as if it was frozen in the 18th century is a political opinion. – Martin Schröder Oct 13 at 22:29
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    I disagree. Kagan is clearly an activist and stated plainly that she will use personal experience as a minority female to make decisions. It is difficult for an originalist to be an activist as the originalist seeks to interpret the Constitution as it was written in the time it was written. Barrett clearly falls into this category as she has said herself many times. – acpilot Oct 13 at 22:30
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    @acpilot Well, how does one determine the true meaning of the Constitution at the time it was written? Unless you're a time traveling mind-reader, you're just interpreting the Constitution the way you want to (and even then, the idea that the Founding Fathers actually agreed on the meaning of the Constitution, when they disagreed on pretty much everything, is laughable) – divibisan Oct 13 at 22:59
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    Lucky for us the original debates about the constitution are all written down: en.wikipedia.org/wiki/… – SurpriseDog Oct 14 at 3:31
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    @mariomario That had nothing to do with Garland being an activist judge, and everything to do with the fact that Obama was a Democrat and the Senate was Republican controlled, and they blocked Garland more or less just because they could and for no other reason. The rationale they gave is "it's too close to the election", but as the ACB situation has shown, that's pretty much BS, and AFAIK the Republicans have given no other reason (or even excuse) in lieu to "correct the record". – Ertai87 Oct 14 at 14:54

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