For a judge with a brilliant legal mind, Amy Coney Barrett seemed oddly at a loss for words.
Does a president have the power to postpone an election? Senator Dianne Feinstein of California asked. Barrett said she would have to approach that question—about a power the Constitution explicitly grants to Congress—“with an open mind.”
Is voter intimidation illegal? Senator Amy Klobuchar of Minnesota asked. “I can’t apply the law to a hypothetical set of facts,” Barrett replied. Klobuchar responded by reading the statute outlawing voter intimidation, which exists and is, therefore, not hypothetical.
Should the president commit to a peaceful transfer of power? Senator Cory Booker of New Jersey asked. Barrett replied that, “to the extent this is a political controversy right now, as a judge I want to stay out of it.”
Taken together, these three questions ask whether the president is, in essence, an elected monarch who, once in office, can determine the time and circumstances of his relinquishing power. Federal law stipulates that states must report their election results by the fourth Wednesday in December; the Constitution mandates that a president’s term ends at noon on January 20. Voter intimidation is outlawed by statute rather than by the Constitution, but the law is unambiguous. Yet Barrett could not commit herself to affirm the bedrock principle of American democracy: the ability of voters to choose their leaders in free and fair elections.