On Tuesday, during the second day of the Senate Judiciary Committee’s confirmation hearing for Judge Amy Coney Barrett’s nomination to the U.S. Supreme Court, U.S. Senator Joni Ernst, R-Iowa, asked about judicial impartiality, the role of court precedence, and agency rulemaking.
“I am pro life. And I see that judged by your faith and as has been aptly pointed out many times over by our colleagues across the aisle that you are pro life But, once again, can we reiterate your stance as a judge?” Ernst asked.
Barrett said that as a judge, she could not sign statements or make statements like she did before she was a judge.
“My policy views, my moral convictions, my religious beliefs do not bear on how I decide cases, nor should they. It would be, you know, it would be in conflict with my judicial oath,” Barrett answered.
Pointing to Barrett’s identification as an originalist that Ernst said would “naturally lead a judge to carry out her constitutional duty of impartiality when applying the law,” she asked about Supreme Court precedence impacted her decision to uphold Chicago’s ordinance that created a buffer zone around abortion facilities.
Barrett replied, “The Supreme Court has a case called Hill v. Colorado. And that case said that such bubble zones, especially because this one in Chicago was nearly identical, as I recall, with the one that was at stake and Hill said that they did not violate the First Amendment. And so our panel, you know, we’re bound by that precedent. Our panel applied that precedent. And so as you say, that was a case involving abortion, but my duty as a judge was to follow the governing law and that governing law in that case was Hill.”
Ernst said that while Congress sometimes passes unconstitutional laws, agencies can implement rules that sometimes are as well. “How should (agencies) interpret the laws enacted by Congress,” she asked.
“When a court reviews whether an agency has exceeded its lawful authority, it goes to the statute that you and Congress enact and interprets that statute, looks at the text, and tries to tell whether you’ve given the agency…leeway to adopt policies, and that leeway would be present if you had ambiguity in the statute that left the decision to the agency. But if the agency goes farther than the text of the statute permits, then it is the role of a court to say that that action, you know, was in conflict with the statute and therefore illegal,” Barrett answered.
“And what happens then if there is an actual question on the intent of the law?” Ernst asked, following-up.
“Well, a statute in this context, in a context of a Chevron-type challenge to agencies and agencies’ interpretation of it, you would interpret the statute in the same way that you would interpret any other statute,” Barrett replied. “My own approach to it would be textualism. And so, in my approach to language, the intent of the statute is best expressed through the words. So looking at what the words would communicate to a skilled user of the language.”
Watch the full exchange: