Nine Voting Rights and Democracy Questions Judge Barrett Refused to Answer

Courts Resources 10.20.20

During her hearing before the Senate Judiciary Committee last week, Judge Amy Coney Barrett demonstrated her lack of commitment to the fundamentals of our democracy. And it was shocking.

Democrats on the committee asked Barrett a number of questions related to voting rights and our democracy, but she refused to answer them. She would not assure the American people that she understands the basic tenets of our democracy and the struggle for voting rights by communities of color in America – a struggle that is, at its core, rooted in racism and white supremacy that persists today.

Here are nine questions she would not answer:

Senator Feinstein: “Do you agree with Justice Scalia’s assertion that the Voting Rights Act is a ‘perpetuation of racial entitlement?’”

Judge Barrett: “I can’t, I don’t obviously know what Justice Scalia was thinking when he said that. And any characterization of the Voting Rights Act or a statement like that is simply really not something I can opine on. Because, you know, that’s tied in, I would think, with these Shelby County questions.”

Senator Leahy: “Would you accept the fact, or would you acknowledge the fact, that communities of color disproportionately face restrictions and obstacles when they are casting their ballots?”

Judge Barrett: “Senator, I wasn’t aware of the statistics that you were citing to me. If it became relevant in any case that was litigated before me and was presented to me, I would of course have an open mind about it.”

Senator Booker: “So poll taxes, you would say unconstitutional?”

Judge Barrett: “Senator, voting is a fundamental individual right that is critical to our democracy…The point I was making is that the 14th Amendment does expressly contemplate that states might deprive felons of voting rights because it’s in the text.”

Booker: “So you’re jumping to felonies – I just asked you about poll taxes…Poll taxes, unconstitutional, yes?”

Barrett: [explains she meant to clarify her Kanter opinion]… “I think Section 2 of the Voting Rights Act, which prohibits procedures and practices – poll taxes fall.”

Senator Durbin: “Does the president have the authority to unilaterally deny the right to vote to any person based on their race?”

Judge Barrett: “Obviously there are many laws in effect…And so there’s a principle in constitutional law called ‘external constraints,’ and even if one evaluates what the authority a branch might have to act, there are external constraints that press in from other parts of the Constitution. Here it would be the 14th and 15th Amendments.”

Later: “I really can’t say anything more than I’m not going to answer hypotheticals.”

Senator Klobuchar: “Judge Barrett, under federal law, is it illegal to intimidate voters at the polls?”

Judge Barrett: “I can’t characterize the facts in a hypothetical situation and I can’t apply the law to a hypothetical set of facts. I can only decide cases as they come to me, litigated by parties on a full record, after fully engaging precedent, talking to colleagues, writing an opinion, and so I can’t answer questions like that.”

Senator Hirono: “Do you believe, Judge Barrett, that voter suppression or discrimination in voting currently exists?”

Judge Barrett: “We have the Voting Rights Act that offers protection and Section 2 of the Voting Rights Act, which was not at issue in Shelby County, protects voters from any kind of measures that would discriminate on the basis of race.”

Senator Booker: “Do you believe that every president should make a commitment, unequivocally and resolutely, to the peaceful transfer of power?”

Judge Barrett: “Well, senator, that seems to me to be pulling me in a little bit into this question of whether the president has said that he would not peacefully leave office – and so, to the extent that this is a political controversy right now, as a judge, I want to stay out of it and I don’t want to express a view on…”

Senator Harris: “In Shelby County, Chief Justice Roberts wrote ‘voting discrimination still exists; no one doubts that.’ And my question to you is: do you agree with Justice Roberts’ statement?”

Judge Barrett: “Senator Harris, I want to just make sure that I understand that my understanding of what remains of the Voting Rights Act…” [explains her understanding]

Harris: “Judge Barrett, my question, however, is do you agree with Chief Justice Roberts who said, ‘Voting discrimination still exists; no one doubts that.’ Do you agree with that statement?”

Barrett: “Senator Harris, I will not comment on what any justice said. An opinion, whether an opinion is right or wrong, or endorse that proposition.”

Harris: “Well, I’m asking you… So do you call it a proposition or a fact? Are you saying you do not agree with a fact?”

Barrett: “Senator, I’m not going to make a comment. I’m not going to say that I endorse either the majority or the dissent in the case of Shelby County.”

Senator Feinstein: “Does the Constitution give the president of the United States the authority to unilaterally delay a general election under any circumstances? Does federal law?”

Judge Barrett: “Senator, if that question ever came before me, I would need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion writing process. So, you know, if I give off-the-cuff answers, then I would be basically a legal pundit and I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind.”

Senator Booker also asked Barrett whether she’s ever waited for five hours, or even one hour, to vote. For that question, she did have a response: She had not. Her understanding of the experiences that far too many voters have – especially voters of color – is lacking.

During the hearing, Barrett also wouldn’t acknowledge that climate change is real, that Medicare is constitutional, that family separation is wrong, that the Supreme Court’s decision establishing marriage equality was correctly decided, and so much more.

And in her answers to all of these questions, her responses spoke volumes.