Amy Coney Barrett Still Won't Say If Systemic Racism Is Real

“I believe that racism persists in our country, but as I explained at the hearing, whether there is ‘systemic racism’ is a public policy question of substantial controversy," she wrote.
October 21, 2020, 5:07pm
Supreme Court nominee Amy Coney Barrett, smiles as she meets with Sen. Roy Blunt, R-Mo., Wednesday, Oct. 21, 2020, on Capitol Hill in Washington. (AP Photo/Jacquelyn Martin, Pool)

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Amy Coney Barrett, President Donald Trump’s Supreme Court nominee, declined to answer questions about racism, LGBTQ rights, birth control, and more in her responses to dozens of written questions from senators.

In written responses submitted Tuesday night, Barrett reiterated her refusal to say whether “systemic racism” exists in the United States, after Sen. Mazie Hirono, Democrat of Hawaii, asked her about the topic.

“At the hearing, you acknowledged that racism persists in our country, but you refused to answer where there is systemic racism, calling it a ‘policy question.’ You also refused to answer other questions based on your view that they are ‘policy questions,’” Hirono wrote. “What makes a statement a policy question rather than a question of fact?”

“I believe that racism persists in our country, but as I explained at the hearing, whether there is ‘systemic racism’ is a public policy question of substantial controversy, as evidenced by the disagreement among senators on this very question during the hearing,” Barrett replied. “As a sitting judge and judicial nominee, it would be inappropriate for me to offer an opinion on the matter.”

Past Supreme Court nominees have ducked questions about precedent, and Barrett held fast to that tradition during her confirmation hearing in front of the Senate Judiciary Committee last week. In her written responses Tuesday, Barrett, a judge on the U.S. Court of Appeals for the 7th Circuit since 2017, repeatedly cited that standard as a reason to not give direct answers to questions.

Many of the senators’ questions mirrored their inquiries from the hearing, diving into topics like vitro fertilization, climate change, and the Affordable Care Act. (Democrats are especially concerned that Barrett, if confirmed, would help undermine the Affordable Care Act, which the Supreme Court is scheduled to hear arguments about—in yet another lawsuit over the healthcare law—on November 10.) In her questions to Barrett, California Democratic Sen. Dianne Feinstein seemed to reference a moment from the hearing where Barrett referred to sexual orientation as a “sexual preference.”

That term, supporters of LGBTQ rights said, echoes homophobic ideology that implies someone can choose or change their sexual orientation. Later on in her confirmation hearing, Barrett apologized if she had caused offense with her use of the term.

“Is a person’s sexual orientation an immutable trait?” Feinstein asked. (Feinstein is now facing criticism from liberals for praising South Carolina Republican Sen. Lindsey Graham’s stewardship of the Barrett confirmation hearing—after her fellow Democrats on the committee spent days attacking it as a rushed sham.)

“Insofar as it is relevant to the disposition of legal questions, it would not be appropriate for me to opine on the immutability of sexual orientation,” Barrett replied. “As I said at my hearing, however, I do not mean to imply that sexual orientation is not an immutable characteristic.”

Barrett, a devout Catholic, once served as a trustee for a board of private Christian schools that effectively blocked gay families and employees from the schools, the Associated Press reported Wednesday. In 2015, Barrett signed on to a letter that highlighted “the significance of sexual difference and the complementarity of men and women” and “marriage and family founded on the indissoluble commitment of a man and a woman.”

During her hearing, Barrett also declined to say whether the climate was changing after being asked by Democratic Sen. Kamala Harris. The judge, instead, called climate change “a very contentious matter of public debate.”

In her written questions to Barrett, Feinstein asked Barrett why she refused to say whether climate change is real—even though she agreed that COVID-19 is infectious, a fact that, like climate change, the scientific community has agreed upon.

Barrett, again, declined to comment on climate change. She also declined to weigh in on the dangerousness of COVID-19, which, she said, is a matter of public debate.

“As a sitting judge, it would be inappropriate for me to weigh in on the matter further,” she wrote. There have now been more than 8 million cases of COVID-19 in the United States. More than 220,000 people have died.

Even diehard conservatives have recognized that the Earth’s climate is now changing. In the recent vice presidential debate, Vice President Mike Pence acknowledged that this phenomenon was occurring.

At times, however, Barrett’s “no comment” policy even went further than prior nominees. During her hearing, she declined to answer questions about Griswold v. Connecticut, the 1965 Supreme Court case that gave private couples that right to contraception and that paved the way for Roe v. Wade, the Supreme Court decision that legalized abortion nationwide just eight years later. Nominees, like now-Chief Justice John Roberts, have commented on Griswold in confirmation hearings, but Barrett once again avoided answering whether Griswold was correctly decided her responses Tuesday.

“But I do not think Griswold is in danger of going anywhere,” she wrote.

As she did in her hearing, Barrett also declined to say in her written answers to the Senate whether Trump can pardon himself, whether a president can unilaterally postpone an election, or whether presidents should commit to a peaceful transfer of power—although she said that “one of the beauties of America” is that the nation has always held peaceful transfers of power.

The Senate Judiciary Committee is set to vote on Barrett’s confirmation on Thursday afternoon. Should her nomination move forward—as it’s expected to—the full Senate will vote on whether to send Barrett to the Supreme Court on Monday.