WATCH: Amy Coney Barrett Stands Up to Dick Durbin on Voting Rights Question
Judge Amy Coney Barrett stood up to hostile questioning on Wednesday morning by Sen. Dick Durbin (D-IL) about her dissent in the Kanter v. Barr case last year, after he falsely claimed that she had described the right to vote as “secondary.”
Durbin began by challenging Barrett’s claim to follow the text of the law and the Constitution. “You style yourself an originalist, textualist, factualist, whatever the term is,” he said, before asking her if the president could, theoretically, delay the election.
Barrett cited the 14th and 15th Amendments to the Constitution, but said that she could not answer hypothetical questions.
“It strains originalism, if the clear wording of the Constitution establishes a right and you will not acknowledge it,” he said.
“Well, Senator,” Barrett replied, “it would strain the canons of conduct, which don’t permit me to offer off-the-cuff reactions or any opinions outside of the judicial decision-making process. It would strain Article III, which prevents me from deciding legal issues outside of the context of cases in controversies. And as Justice [Ruth Bader] Ginsburg said, it would display disregard for the whole judicial process.”
Durbin then tried turning to Barrett’s dissent in Kanter. He implied that Barrett had done a poor job the day before in explaining her opinion, referring to her responses to questions from Sen. Josh Hawley (R-MO) about her view of voting rights — “in an attempt to rehabilitate the witness,” Durbin sneered.
Kanter was a case involving a convicted non-violent felon challenging a law that prevented him from owning a firearm.
As Breitbart News has previously explained in a fact check, while both the Second Amendment right to keep and bear arms and the Fourteenth Amendment right to vote are fundamental, the text of the latter explicitly allows states to limit the right.
In her dissent in Kanter, Barrett cited existing precedents — including D.C. v. Heller (2008) — that define the right to keep and bear arms as an “individual” right, while the right to vote or to serve on a jury is a “civic” right.
Durbin suggested that Barrett’s opinion in Kanter showed that she saw voting rights as “secondary,” even though she had described voting rights the day before as “fundamental.”
Senator, with respect, that is distorting my position. What I said in that case, which is what Heller said, and which is conventional in all discussions of this, to my knowledge, is that the right to vote is fundamental, however it is an individual fundamental right that we possess, but we possess it as part of our civic responsibility for the common good. The same thing is true, for example, ofd jury service. Whereas individual rights– and this is, again, a distinction that’s drawn in case law– individual rights benefit more the individual. And the entire dispute in Heller was that the majority thought that the Second Amendment was an individual right, and the dissent thought it was one that was a civic right, that was a right that people possess, but they possessed for the benefit of society by participation in the militia. And it is a distortion of the case to say that I ever said that voting is a second-class right.
Durbin replied: “Whenyou were finished with your dissent, here’s what it came down to, say: if you were guilty of a felony, that is not violent, you can lose your right to vote, but you can’t lose your right to buy a gun. Am I wrong?”
Barrett pointed out that Kanter “had nothing to do with the right to vote. … I don’t have an opinion, and have never expressed one, about the scope of legislatures’ authority to take away felon voting rights.”
She could have added that her dissent in Kanter specifically acknowledged that even non-violent felons could lose their Second Amendment rights. She wrote that the government had an “undeniably compelling interest in protecting the public from gun violence.”
However, she said, it would have to show evidence that a non-violent felon, or non-violent felons in general, would pose a danger to the public — and she argued that the government had not done so.
Constitutional law professor Jonathan Turley of George Washington University opined that Barrett had “landed a haymaker” on Durbin in her response about the judicial canon.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His newest e-book is The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.