The Amy Coney Barrett Strategy of Selective Avoidance: What You Need to Know About the Supreme Court Confirmation Hearings

By Erin Maxwell || Staff Writer

Amy Coney Barrett answers the questions of the Senate Judiciary Committee on Day 3 of questioning. (CNN)

Through four days of the Senate Judiciary Committee’s confirmation hearing, Supreme Court Justice nominee Amy Coney Barrett’s strategies to dodge and avoid any and all policy questions were effective but left the public with many unanswered concerns. The 48-year-old former Notre Dame law professor knows she has the Republican majority vote. Lindsay Graham, the Republican Senate Judiciary Committee chairman pointed out that the hearings were “not about persuading each other”, and that “all Republicans will vote yes, and all Democrats will vote no,” which leaves Barrett with a smooth path to the nation’s highest court (NPR). Still, Democratic concern towards Barrett’s history of extreme conservatism and its possible effect on cases involving abortion rights, LGBTQIA+ rights, climate change, election fraud, and especially the Affordable Care Act largely were avoided by the nominee altogether.


Democratic resistance to this nomination stems from a perception of Republican hypocrisy, as an open Supreme Court seat under President Barack Obama was denied confirmation due to the upcoming election cycle. In March of 2016, Merrick Garland was nominated to fill the seat vacated by the late Antonin Scalia, but Republican majority leaders, including Lindsay Graham himself, resisted the effort, with Graham stating, “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let’s let the next president, whoever it might be, make that nomination,’” (NPR). This partisan shift in policy has been negatively received by the public and was highlighted during the vice presidential debate, in which Kamala Harris gave Mike Pence a “history lesson” about the Lincoln administration’s precedent for avoiding Supreme Court nominations during an election year

Senate Judiciary Committee Lindsey Graham (R-SC) leads the four consecutive days of questioning.

With Barrett’s impending confirmation cementing a solid 6-3 conservative majority on the bench, the threat to recent legislation including the Affordable Care Act is tangible. Her tight-lipped defense strategy told the American public scant information about her actual legal principles, unlike past nominees. So, what can we learn from her past, and what she refused to answer?

She refused to state her opinion on Roe v. Wade.
Although Amy Coney Barrett has been outspokenly pro-life in her past as a professor at a Catholic school, she claimed throughout the proceedings that she would not enter the courts with explicit bias. With the famous Roe v. Wade dissent of her mentor, Justice Scalia, in the national memory, she attempted to distance herself as the image of impartiality, saying “if I were confirmed, you’d be getting Justice Barrett, not Justice Scalia” (NPR). Still, her refusal to acknowledge Roe v. Wade as a super-precedent, or a case that cannot be overturned due to its establishment as law, signaled her fundamental ties to the conservative pro-life platform.
Republican leader Lindsay Graham openly embraced Barret’s stance, saying “This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embrace her faith without apology, and she is going to the court,” (CNN). A quick excursion into her past cements her alignment, with her sponsorship of a Notre Dame University Faculty for Life ad calling for “an end to the barbaric legacy of Roe v. Wade drawing concern from Democrats, with ranking Democrat Senator Diane Feinstein (D-CA) calling this move “distressing” (USA Today).

She refused to acknowledge the legitimacy of climate change.
Amy Coney Barrett was trying to play it safe, but her refusal to answer basic questions from the vice presidential candidate, Senator Kamala Harris, drew incredible backlash on social media. By stating that climate change was a matter of contention and not a simple fact of science, she essentially gave credence to the legitimacy of climate-change deniers. A seemingly softball question drove Democrats to a frenzy with her insistence that she would “not express a view on the matter of public policy, especially one that is politically controversial” (NY Times).

She refused to state her opinion on the landmark same-sex marriage case, Obergefell v. Hodges.
Consistent with her strategy of selective refusal, Barrett withheld from agreeing or disagreeing with the landmark same-sex marriage case, which was vehemently disapproved of by her mentor, Justice Scalia, who was known for his adamant disagreement with LGBTQIA+ rights. In response to concerns, Barrett claimed “I have never discriminated on the basis of sexual preference and would never discriminate on the basis of sexual preference,” (USA Today). Almost immediately, Senator Mazie Hirono (D-HI) pointed out the offensive nature of the term “sexual preference”, as it was historically used to imply that one’s sexuality is a choice.

She refused to state her opinion on the constitutionality of the Affordable Care Act, often referred to as Obamacare.
One of the central issues of the current presidential debate is the survival of the ACA, or Obamacare, which the Republican Party has consistently attempted to dismantle without a solid backup plan. Once again, although President Trump publicly stated that he would only nominate a Supreme Court Justice who would strike down the ACA, Barrett maintained that she was not entering the court as “hostile”. In a 2017 law essay review penned by Barrett, she criticized past decisions preserving the ACA, citing Chief Justice Roberts’ “devotion to constitutional avoidance” (CNN). Though Democrats seemed to suggest that Trump’s strategy is clear, with an ACA case looming soon after the election, Barrett maintained unbreakable impartiality.

Much of Barrett’s legal opinions outside of her role as an originalist remain unknown from these proceedings, but one thing is obvious- with an overwhelming Republican majority, Barrett’s route to becoming the youngest Justice on the current panel is clear.

Sophomore Erin Maxwell is a Staff Writer. Her email is emaxwell@fandm.edu.

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