Barrett urges Senate Judiciary Committee not to assume she will judge like Scalia

Barrett urges Senate Judiciary Committee not to assume she will judge like Scalia
Image: C-SPAN screen grab

By Mary Margaret Olohan

Supreme Court nominee Amy Coney Barrett urged the Senate Judiciary Committee Tuesday not to assume that she will judge like the late Justice Antonin Scalia.

The Supreme Court nominee repeatedly emphasized to senators in Tuesday’s hearing that though Scalia was one of her mentors and an “eloquent defender of originalism” and that Scalia’s “philosophy is mine,” that doesn’t mean she would always reach the same conclusions as Scalia.

“For textualism, the judge approaches the text as it was written with the meaning it had at the time and doesn’t infuse their own meaning into it. But I want to be careful to say if I am confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett. And that is so because originalists don’t always agree. And neither do textualists.”

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Later during the hearing, Democratic California Sen. Dianne Feinstein questioned Barrett on whether she agrees with Justice Scalia’s “view that the U.S. Constitution does not afford gay people the fundamental right to marry?”

“Senator Feinstein, as I said to Senator Graham at the outset if I were confirmed, you would be getting Justice Barrett, not Justice Scalia,” she responded.

“I don’t think anybody should assume just because Justice Scalia decided a certain way I would as well,” she added. “I will not agree or disagree just for the same reason I have been giving,” which was that she wouldn’t commit to ruling a certain way on potential future cases.

Barrett cited the late Justice Ruth Bader Ginsburg’s advice on how judicial nominees should behave during a hearing: “No hints, no forecasts, no previews.”

“That has been the practice before her, but everybody calls it the Ginsburg rule because she stated it concisely and it has been the practice of every nominee since,” she continued. “I am sorry to not be able to embrace or disavow Justice Scalia’s position, but I cannot do that on any point of law.”

Feinstein told Barrett, “That is too bad,” emphasizing that gay marriage is a “fundamental point” for many Americans. Feinstein added that she hoped Barrett would say that “this would be a point of difference where those freedoms would be respected.”

“Senator, I have no agenda and I want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on sexual preference,” Barrett said.

“Like racism, I think discrimination is abhorrent. On the question of law, however, because I am a sitting judge and because you cannot answer questions without going through the judicial process, I cannot give answers to those very specific questions.”

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