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Published on October 14, 2020 12:33 AM

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How to Get Amy Coney Barrett to Say What She Really Thinks
If she achieved nothing else, Judge Amy Coney Barrett on Tuesday displayed her skills as a law professor. Under gentle questioning by Sen. Ben Sasse (R-Neb.), she explained important and complex legal concepts like originalism, textualism, standing to sue and "living constitutionalism."

But when she was pressed by Democratic senators on specific cases related to hot-button issues such as abortion, same-sex marriage and Obamacare, Barrett retreated behind a shield of what she called a "judicial canon" that allegedly precludes her from commenting on certain categories of cases. She was not entirely consistent, however, in how she applied that rule. She eschewed any discussion of abortion rights and Shelby County v. Holder, which struck down a critical provision of the Voting Rights Act, for example, but was happy to weigh in on Second Amendment law and the need, in her words, for First Amendment law to become "better organized."

After hours of what amounted to a series of "no comments" from Barrett, the public is no wiser about how Barrett's views, which she has expressed on occasion in law review journals and other venues, might affect her decisions on the Supreme Court bench. As Sen. Sheldon Whitehouse (D-R.I.) skillfully unpacked in his questioning today, years of aggressive advocacy by conservative groups such as the Federalist Society have left a lasting imprint on the federal judiciary, enabling the idea to take hold in the public square that originalists such as Barrett are empirically "better" at interpreting the law than their progressive counterparts—more rational and less inclined to allow ideology, emotion, and the current political climate to influence their decisions. As Barrett herself said, America needs judges who apply the rule of ...