The second day of Judge Amy Coney Barrett’s confirmation hearing featured questioning from lawmakers and Sen. Dianne Feinstein (D-Calif.) hoped to get a specific opinion from Barrett on whether Roe v. Wade, the landmark abortion ruling, was wrongly decided.
Feinstein noted that the late Justice Antonin Scalia joined the dissenting opinion in the 1992 case Planned Parenthood of Southeastern Pennsylvania vs. Casey and said that the minority on the court (the case resulted in a 5-4 ruling) believes Roe v. Wade was “wrongly decided and that it can and should be overruled.”
Asked if she agrees with Scalia’s opinion, Barrett said, “I think on that question I’m going to invoke Justice Kagan’s description … when she was in her confirmation hearing she said that she was not going to grade precedent or give it a thumbs-up or a thumbs-down and I think in an area where precedent continues to be pressed and litigated, as is true of Casey, it would actually be wrong and a violation of the canons for me to do that as a sitting judge.”
Barrett continued, “If I express a view on a precedent one way or another, 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.”
When Feinstein asked again and said it was “distressing not to get a straight answer,” Barrett responded, “I completely understand why you are asking the question but again, I can’t pre-commit or say, ‘Yes, I’m going in with some agenda’ because I’m not. I don’t have any agenda. I have no agenda to try to overrule Casey. I have an agenda to stick to the rule of law and decide cases as they come.”
Asked if she personally agrees with Scalia’s view, Barrett said, “I think my answer is the same because that’s a case that’s litigated. Its contours could come up again, in fact, do come up. They came up last term before the court … it’s a contentious issue … but I can’t express views on cases or pre-commit to approaching a case any particular way.”
Watch the video below:
Sen. Dianne Feinstein: “Do you agree with Justice Scalia’s view that Roe [v. Wade] was wrongly decided?”
— This Week (@ThisWeekABC) October 13, 2020
Barrett declines to answer: “If I express a view on a precedent … it signals to litigants that I might tilt one way or another in a pending case.” https://t.co/rfUcaOiVbd pic.twitter.com/xxvg26oaDg
Barrett has been compared to Scalia. Asked about that comparison earlier in the hearing on Tuesday, Barrett said, “Justice Scalia was obviously a mentor … his philosophy is mine too. He was a very eloquent defender of originalism.”
