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 Chuck Grassley, R-Iowa, asked questions related to her view of looking to legislative history when interpreting a law. He also questioned her about judicial independence.
Before he asked his questions, Grassley remarked on Senate Democrats approach to her nomination.
“Yesterday, my Democratic colleagues spoke about their concern that you judge wouldn’t uphold certain laws, including the Affordable Care Act, and that you would strip Americans of their health care rights and those protections that come with it. These opponents said that Republicans just want to confirm you so that you will ‘will carry their policies forward,’ meaning republican policies forward on the Supreme Court,” he said.
“But this only shows Democrats fundamentally misunderstand what judges are supposed to do. A judge is supposed to interpret laws in an impartial manner, consistent with the Constitution. Republicans aren’t interested in seeing judges ‘carry their policies forward.’ Republicans want judges to interpret the law and the Constitution, not make law. We want judges that won’t impose their policies and personal preferences in their decision making. Plain and simple. policy making is not the proper role of the judicial branch. That role is reserved for legislative and executive branches,” Grassley added.
He pointed out that Democrats believed her technical concerns with Chief Justice John Roberts’ opinion that upheld the Affordable Care Act disqualified her as “heartless” and wanting to “scrap the health care law.”
“Frankly, that’s absurd. Not only is Judge Barrett a mother of seven children with preexisting medical challenges of her own, no one on this committee or anyone has any right to suggest that she doesn’t care about access to health care or protection for the vulnerable,” Grassley asserted.
After his remarks, Grassley asked Barrett about the judicial use of legislative history to form legal opinions.
“When is it appropriate to look to legislative history to interpret the statute? And are there some circumstances when more appropriate than another? And I’d like to also give your view on legislative history compared to what I heard from Scalia 35 years ago?” he asked.
“What governs, of course, is the text of the statute. So you know, the legislative history can never supersede the text. And it should never substitute for the text of the statute. Justice Scalia, as was well known, you know, railed against the use of legislative history. And I think it was because at the time that Justice Scalia went on to the D.C. Circuit, before he was on the Supreme Court, the use of legislative history had really kind of gotten out of control.” Barrett answered.
She noted that Scalia believed that a judge does not need to go to legislative history when the law’s text answers the question.
“Legislative history can be long,” Barrett said, noting that because of this, it sometimes gives judges too much to cherry-pick from when forming their opinion.
“So as a general rule, I don’t look to legislative history when I’m deciding cases. I wouldn’t say that it would never be relevant,” she noted.
Barrett said that there were instances when Justice Scalia would look at legislative history. For example, she said, “He looked at legislative history to see whether what seemed unthinkable actually was unthinkable.”
Grassley then asked about specific opinions she wrote as it related to legislative history.
He then asked her thoughts on a rule that the late Justice Ruth Bader Ginsburg followed that an impartial judge should provide “no forecast, no ad” on how he or she might rule.
Barrett agreed that the Ginsburg rule reinforces judicial independence and that she would follow that.
“Have you made any promises or guarantees to anyone about how you might rule on a case or issue that might come before you if you’re confirmed to the Supreme Court?” Grassley asked.
“I want to be very, very clear about this, Senator Grassley. The answer is no. And I submitted a questionnaire to this committee, and which I said no one ever talked about any case with me, no one on the executive branch side of it,” Barrett answered. “Just as I didn’t make any pre-commitments and was not asked to make any commitments on the executive branch side, I can’t make any pre-commitments to this body either. It would be inconsistent with judicial independence.”
Watch Grassley’s full exchange with Barrett: