Amy Coney Barrett’s confirmation hearing: Day 2

Sen. Sheldon Whitehouse speaks while displaying a sign during Supreme Court nominee Judge Amy Coney Barrett's confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, DC, on October 13.

The Senate Judiciary Committee has returned from its lunch break, and senators are now continuing with their questioning of Trump’s Supreme Court nominee Amy Coney Barrett.

Sen. Sheldon Whitehouse, a Democrat from Rhode Island, is the first to ask Barrett questions following the break.

Each senator on the committee gets 30 minutes of questioning time. Chair Lindsey Graham said today’s hearing is scheduled to go until 9 p.m. ET tonight, although exact timing remains fluid.

Supreme Court nominee Judge Amy Coney Barrett speaks during her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, DC, on October 13.

Amy Coney Barrett weighed in on the issue of severability, telling senators she has no judicial record on the doctrine and has never written about it. Severability is key to the future of the Affordable Care Act because it is one of the two issues the Supreme Court must decide after it hears arguments Nov. 10.

The court will not only decide whether the individual mandate is still constitutional now that the penalty for not obtaining insurance has been dropped to $0, but it will also determine whether the mandate is severable from the entire Affordable Care Act. If the mandate is declared unconstitutional by the court and it is not severable, the entire Affordable Care Act must be struck down. If the mandate is severable, the law will be able to stand. 

Barrett described the issue this way:

Democratic Sen. Dianne Feinstein followed up asking, “So you have no thoughts on the subject?” Barrett responded, “Well, it’s a case that’s on the court’s docket and the cannons of judicial conduct would prohibit me from expressing a view.”

Republican Sen. Mike Lee also batted back the belief that Barrett has already weighed in on the Affordable Care Act because of her previous writings. In a 2017 writing, Barrett criticized Chief Justice John Roberts for siding with the liberals in 2012 to declare the mandate constitutional because it fell under Congress’s taxing power. Lee made the point that Barrett’s criticism then has nothing to do with the issues that will be presented to the Supreme Court on Nov. 10. 

“That happened, it’s inexcusable that he did that, he misused the judicial authority,” Lee said. “That case has absolutely nothing to do with California versus Texas. It has absolutely nothing to do with the question of severability in that case. Would it be fair to say that my very strong opinions that I’ve just expressed do not indicate how I would feel, how I would lean were I a jurist in California versus Texas?”

Barrett responded, “I think you’re correct Sen. Lee that the question, the legal issue is entirely different in California versus Texas. Severability is its own independent doctrine and has nothing to do with the statutory interpretation questions presented in Sibelius.”

Supreme Court nominee Judge Amy Coney Barrett speaks during her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, DC, on October 13.

Throughout the day, Judge Amy Coney Barrett has been frank at times, passionate at other times. But there have also been occasions where she’s been stern with the senators. 

It is a tone reminiscent of how Justice Neil Gorsuch responded at times when he was sparring with members of the committee during his own confirmation hearing. 

Barrett and Gorsuch also have a similar line when outlining their conservative judicial philosophies and stressing their belief that courts can’t always sweep in to solve society’s woes. 

Barrett pressed the point that as a judge — she is not a “Queen.”

“Nobody wants to live in a court with the ‘law of Amy,’” she said at one point and added, “I can ensure you my children don’t even want that.”  

As for Gorsuch, he has said judges wear “robes, not capes.” 

“Do you really want me to rule the country?” he told CNN during an interview last year. 

The Senate Judiciary Committee is in recess for lunch following about three hours of questioning. The hearing is expected to resume at 12:45 p.m. ET, Chair Lindsey Graham announced.

Today’s confirmation hearing for Judge Amy Coney Barrett is scheduled to go until 9 p.m. ET tonight, Graham said.

Judge Amy Coney Barrett said that she is “not hostile” to the Affordable Care Act, when pressed about how she would handle the case in November by Senate Minority Whip Dick Durbin.

Durbin pressed Barrett on her previous critiques of majority opinions on the cases of Nfib v. Sebelius and King v. Burwell, which focused on the Affordable Care Act.

“You’ve been unequivocal in being critical of the decisions both in Nfib v. Sebelius and King v. Burwell and we naturally draw the conclusion there’s going to be a third strike when it comes to Texas and California,” Durbin said.

Barrett responded that she is not hostile to the Affordable Care Act and that there was difference between her academic writings and judicial decision making.

Watch:

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Judge Amy Coney Barrett said the video of George Floyd, who was killed by Minneapolis police this summer, was personal for her family.

“My 17-year-old daughter Vivian, who’s adopted from Haiti, all of this was erupting, it was difficult for her,” Barrett said. “We wept together in my room.”

Barrett said Floyd’s death was also difficult for her 10-year-old daughter Juliet

“I had to try to explain some of this to them,” Barrett said of her children.

On the larger topic of racism, Barrett said that while she is willing to discuss the reaction her family had to the incidents of police brutality towards Black people in America, “giving broader statements or making broader diagnoses about the problem of racism is beyond what I’m capable of doing as a judge,” she said.

But “racism persists in our country,” she added.

Watch:

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Many Democrats on the Judiciary Committee have asked Supreme Court nominee Amy Coney Barrett about the Affordable Care Act today.

The Supreme Court is scheduled to hear arguments on Nov. 10 regarding whether the Affordable Care Act, commonly known as Obamacare, should be tossed out. That could be just weeks after the full Senate has confirmed a new Justice Barrett.

A group of Republican states led by Texas, and backed by the Trump administration, has asked the justices to invalidate the entire law, including provisions that expanded Medicaid to low-income adults, allowed children to remain on their parents’ policies until age 26 and guaranteed coverage for people with pre-existing health conditions such as diabetes and cancer.

Trump has opposed the law from its inception and derided the Supreme Court for upholding it. He had pressed Congress to throw out Obamacare to no avail. Now his administration is trying to do through litigation what it failed to accomplish legislatively. Trump’s third appointee to the nine-member high court could soon be in a pivotal role toward that effort.

Barrett would succeed Justice Ruth Bader Ginsburg, who died on Sept. 18 and who had consistently voted for the ACA. When the justices first rejected a challenge to the constitutionality of the 2012 law, liberal Ginsburg was part of the narrow 5-4 majority. So was conservative Chief Justice John Roberts. He cast the fifth vote, with four liberals, to uphold Obamacare, but only after construing a disputed provision requiring Americans to purchase health insurance to be valid under Congress’ taxing power.

Roberts’ ruling has drawn the scorn of conservatives ever since.

What Barrett has said about the issue: Barrett, then a University of Notre Dame law professor, wrote in a 2017 law review essay, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power.”

She continued, “Had he treated the payment as the statute did — as a penalty — he would have had to invalidate the statute as lying beyond Congress’s commerce power.”

Senate Minority Leader Chuck Schumer on Sunday pointed to that essay in calling for Barrett to commit to recusing herself from the Supreme Court’s consideration of the law should she be confirmed to the bench, saying her “record on ACA is filled with evidence demonstrating the need for recusal.”

In an exchange with Democratic Sen. Patrick Leahy on recusal in case an election dispute went to the Supreme Court, Judge Amy Coney Barrett said:

Sen. Leahy claimed that President Trump expects the Supreme Court nominee “to side with him in an election dispute,” adding that it he is “thinking of the credibility of our federal courts” in that case.

To this, Barrett said, “I agree with your earlier statement that the courts should not be politicized.”

Several times during the confirmation hearing, senators have pushed Judge Amy Coney Barrett on a doctrine called “stare decisis” — it’s a legal term that refers to a court’s practice of following precedent. It translates into “stand by the thing decided.”  

Why does it matter? It’s actually a critical doctrine that guides justices on when they should vote to overturn a previously decided case. It often comes up in confirmation hearings as senators push to see a particular nominee’s view on the doctrine. Justice Clarence Thomas, for example, has said he has little respect for it, while other justices believe it’s an important stabilizing factor for the court. 

What Barrett has said about stare decisis: Democrats are likely to turn to Barrett’s own writing from 2013, when she was a professor at Notre Dame and she penned an essay centered on the doctrine. While she pointed to its strength, her critics focus on the fact that at one point she suggested room for some cases to be overturned.

“Court watchers,” she added, “embrace the possibility of overruling, even if they may want it to be the exception rather than the rule.”

Judge Amy Coney Barrett said that President Trump did not ask her to commit to repealing the Affordable Care Act when he nominated her to the Supreme Court, adding that if he had, “that would have been a short conversation.”

Sen. Chuck Grassley asked Barrett if anyone had asked her about how she would decide on a particular case or issue.

Then, Grassley asked specifically about the President.

Here’s that exchange:

Grassley: The Democrats say you’re being put on the Supreme Court so you can vote to repeal the Affordable Care Act. Is that your goal? Have you committed to the President or anyone else that you would vote to repeal the Affordable Care Act if confirmed to the court?

Barrett: Absolutely not. I was never asked. And if I had have been, that would have been a short conversation.

Watch the moment:

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Amy Coney Barrett gave a surprisingly candid response to a softball question from Senate Judiciary Chair Lindsey Graham: “How’s it feel to be nominated for the Supreme Court of the United States?”

Barrett said that she tried “a media blackout for the sake of my mental health,” but is “aware of a lot of caricatures that are floating around” of her, her husband Jesse and her family.

She continued:

She said the “benefit” would be her commitment “to the rule of law and the role of the Supreme Court and dispensing equal justice for all.”

“I’m not the only person who could do this job, but I was asked and it would be difficult for anyone,” she added. “So why should I say someone else should do the difficulty if the difficulty is the only reason to say no? I should serve my country, and my family is all in on that because they share my belief and the rule of law.”

Under questioning by the senior senators of each side of the aisle — GOP Sen. Lindsey Graham and Democratic Sen. Dianne Feinstein — Judge Coney Barrett repeatedly declined to give her views of Roe v. Wade and Supreme Court precedent that preserved that 1973 landmark.

To questions from Sen. Feinstein, she said she did not want to comment on how she would rule: “I can’t express views on cases. I can’t pre-commit.”

Feinstein invoked Justice Antonin Scalia, who Barrett has said was her mentor, pointing out that he believed Roe was wrongly decided. She asked Barrett if she agreed with Scalia.

Barrett responded by invoking liberal Justice Elena Kagan, who declined to “grade precedent” during her hearing or give a “thumbs up or a thumb down” in any case, particularly one as controversial as Roe.

Watch the exchange with Sen. Graham on abortion here: 

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Sen. Dianne Feinstein asked Judge Barrett if President Trump has the authority to delay the general election.

Here’s what Barrett said:

Some context: On July 30, Trump openly floated the idea of delaying the general election. He has no authority to delay an election, and the Constitution gives Congress the power to set the date for voting. Lawmakers from both parties said almost immediately there was no likelihood the election would be delayed and even some of Trump’s allies said his message reflected the desperate flailing of a badly losing candidate.

Watch:

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In an exchange with Sen. Lindsey Graham, Judge Amy Coney Barrett was asked about her faith. Remember: When Barrett first appeared before the Senate Judiciary Committee in 2017 when she was nominated for a US appeals court seat, Republican and Democratic senators alike probed her religious views.

Here’s how the exchange went down today:

Graham: Can you set aside whatever Catholic beliefs you have regarding any issue before you? 

Barrett: I can. I have done that in my time on the Seventh Circuit. If I stay on the Seventh Circuit I will continue to do that, if I’m confirmed to the Supreme Court I will do that still. 

Graham: I would dare say that there are personal views on the Supreme Court and nobody questions whether our liberal friends can set aside their beliefs. There’s no reason to question yours in my view. So the bottom line here is that there is a process. You fill in the blanks were this about guns and Heller, abortion rights.

She also explained the process of how an abortion case would be heard, starting with a trial in a district court. Once a lawsuit did reach the Supreme Court, she said:

Some background: The question about Barrett’s faith came after Graham asked her about issues like abortion and guns rights.

For Barrett’s supporters and detractors alike, it’s clear that her confirmation would cement a conservative majority on the Supreme Court to limit abortion access.

Even if the court doesn’t overturn Roe v. Wade, there are cases percolating in courts nationwide that would chip away at an individual’s right to decide whether to terminate a pregnancy and give the state room to second-guess that decision.

You can read more on her record here.

Supreme Court nominee Judge Amy Coney Barrett is sworn into her Senate Judiciary Committee confirmation hearing on Capitol Hill on October 12.

Judge Amy Coney Barrett wasn’t formally sworn in at the start of today’s hearing. 

A committee aide said Barrett is “technically still sworn from yesterday since this is a continuation of the same hearing.”

Barrett was sworn in yesterday before she gave her opening statement.

Sen. Lindsey Graham asked Judge Amy Coney Barrett if she felt like you should recuse herself from a case involving the Affordable Care Act because she is being nominated by President Trump.

Barrett did not answer the question specifically, instead saying, “that’s not a question that I could answer in the abstract.”

Here’s what she said:

Graham followed up by asking if, when it comes to recusal, if Barrett “will do what the Supreme Court requires of every justice.” She responded: “I will.”

 Watch:

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President Trump’s pick for the Supreme Court says her family owns a gun and that she thinks she can fairly judge a guns case. Asked by Senate Judiciary chairman Senator Lindsey Graham if she owns a gun, Barrett replied, “we do own a gun”. 

The Supreme Court has gone a decade without acting on a major case concerning the Second Amendment, an issue that could receive rare attention in the future by the high court should Judge Amy Coney Barrett be confirmed to the bench in the coming weeks.

The court has resisted taking up a significant Second Amendment case since the 2008 case District of Columbia v. Heller – which held that the Second Amendment protects an individual’s right to possess a firearm – and a 2010 follow-up, turning away 10 gun rights cases in the last term alone.

Should the Senate confirm Barrett, who once clerked for Supreme Court Justice Antonin Scalia, she could provide the extra vote Justice Clarence Thomas has been advocating for to take up Second Amendment cases.

Here’s how that exchange went:

Graham: Okay. So when it comes to your personal views about this topic, do you own a gun?  

Barrett: We do own a gun. 

Graham: Okay. All right. Do you think you could fairly decide a case even though you own a gun?

Barrett: Yes.

Senate Judiciary Chair Lindsey Graham kicked off today’s Supreme Court confirmation hearing with a sustained attack on former President Barack Obama’s signature health care law, seeking to preempt Democratic criticisms of Amy Coney Barrett’s nomination to the Supreme Court.

Democratic and Republican lawmakers will have an opportunity on Tuesday to question Barrett, President Trump’s Supreme Court nominee, during a lengthy second day of Senate hearings. 

Judge Amy Coney Barrett says that she is an “originalist” when it comes to interpreting the Constitution. At the second day of confirmation hearings on Tuesday, she explained what that means.

Barrett said being an originalist means that she interprets the US Constitution as a law and believes that the meaning of that law does not change over time.

Barrett said she shares this originalist philosophy with Supreme Court Justice Antonin Scalia, who she worked for as a clerk.

“I would say that Justice Scalia was obviously a mentor and, as I said when I accepted the President’s nomination, that his philosophy is mine, too,” Barrett said.

Watch the moment:

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##Abortion##

Sen. Lindsey Graham just asked Amy Coney Barrett about abortion rights.

For Barrett’s supporters and detractors alike, it’s clear that her confirmation would cement a conservative majority on the Supreme Court to limit abortion access.

Even if the court doesn’t overturn Roe v. Wade, there are cases percolating in courts nationwide that would chip away at an individual’s right to decide whether to terminate a pregnancy and give the state room to second-guess that decision.

In 2006, Barrett added her name to a list of “citizens of Michiana” who signed a “right to life ad,” sponsored by a group that opposes abortion, that appeared in the South Bend Tribune. The ad from the Saint Joseph County Right to Life calls for putting “an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.”

Ten years later, Barrett told an audience at Jacksonville University she believed that while Roe wouldn’t be overturned, access to abortion could eventually be limited.

What comes next: Supporters of abortion rights are watching more than 15 cases percolating in the lower courts that will likely arrive at the Supreme Court in the coming terms. They include issues such as requirements for the burial of fetal tissue, hospital admission rules and parental notification, as well as bans on abortion as early as six, eight or 10 weeks into pregnancy.

How far Barrett would go is a question roiling the country as progressives lament that Trump chose to replace the liberal late Justice Ruth Bader Ginsburg with a 48-year-old conservative jurist who is the feminist icon’s ideological opposite, especially when it comes to reproductive health.

Barrett’s record indicates she believes the Roe v. Wade decision is an act of “judicial imperialism,” Republican Sen. Josh Hawley of Missouri said at a Judiciary Committee meeting last Thursday. “I do believe Judge Amy Coney Barrett’s record bears that out.”

On the bench, Barrett, a deep thinker and meticulous jurist who was well aware long before her nomination that she was on Trump’s short list, has left a careful trail. That trail reveals votes open to more restrictive laws and a state’s expanded ability to regulate abortion, as well as a judicial philosophy aligned with that of her mentor, the late Justice Antonin Scalia, who believed Roe v. Wade was wrongly decided.

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Senate Judiciary Chair Lindsey Graham just gaveled in today’s confirmation hearing for Trump’s Supreme Court nominee Amy Coney Barrett.

Senators on the committee will have the chance to ask Barrett questions. In the first round, each senator will get 30 minutes to question Barrett.

Delaware Sen. Chris Coons, a member of the Judiciary Committee, said he is planning on asking Supreme Court nominee Amy Coney Barrett about health care at today’s hearing. 

“Why are we doing this hearing now in the middle of a pandemic when the Senate is shut down because there’s three senators infected; there’s been an outbreak at the White House that’s infected more than 35 people, so why this rush?” Coons said on CNN’s “New Day.”

Coons said he will be asking Barrett about written statements from her in 2017 criticizing Chief Justice John Roberts and his decision upholding the ACA.

“She’s to the right of Justice Scalia,” Coons said. “She has made it clear that she would join Justice Thomas and others in reaching back and overturning long-settled cases from 20 or 30 years ago. She is at one end of the spectrum in terms of her expressed willingness to overturn precedent.”

Remember: The Supreme Court will hear a challenge from GOP-led states and the Trump administration to Obamacare one week after Election Day. Barrett could play a role in that decision if she is confirmed before then.

Watch more from Coons:

A protestor is arrested by Capitol Police after blocking an entrance to the Dirksen Senate Office Building the morning that the confirmation hearings begin for Judge Amy Coney Barrett on Capitol Hill on Monday.

Police arrested 21 protesters before Monday’s confirmation hearing for Judge Amy Coney Barrett. 

They were charged with obstructing a building on Capitol Hill, according to Capitol Police spokesperson Eva Malecki.

Malecki said just before the hearing began Capitol Police responded to “unlawful demonstration activities” outside of Dirksen Senate Office Building.

One person was also charged with unlawful conduct, Malecki said.

Sen. Thom Tillis is seen on a TV participating remotely during Supreme Court Justice nominee Judge Amy Coney Barrett's Senate Judiciary Committee confirmation hearing on October 12.

Sen. Thom Tillis, who CNN already reported would appear in person today, has released a letter from his physician clearing him to participate in-person in the confirmation hearing of Amy Coney Barrett today. 

Tillis tested positive for coronavirus just days after attending a White House event where President Trump nominated Barrett.

In the letter, Tillis’ personal physician said the senator fulfilled the requirements to end isolation yesterday afternoon.

Here’s what Tillis’ personal physician, Dr. Faircloth, wrote:

Tillis’ office also announced he’s enrolled in an antibody study and will soon join a UNC effort to study immunology and Covid-19

Senate Democrats were united in driving home one message in their opening remarks during the first day day of Amy Coney Barrett’s confirmation hearing: President Trump’s nominee could threaten the future of the Affordable Care Act.

Today, Democratic and Republican senators will have an opportunity to question Barrett on her record and stance on health care.

In a series of statements Monday, Democrats stuck to a script that was crafted by members of leadership and Democratic presidential candidate Joe Biden weeks ago, a message that Democrats hope will win them political support at the polls even if it cannot keep Barrett off the bench.

Remember: The Supreme Court hears a challenge from GOP-led states and the Trump administration to Obamacare one week after Election Day.

Every single Democrat on the committee brought with them a photograph and a story of at least one constituent for whom the Affordable Care Act had made a difference.

An aide to the committee told CNN that after multiple member-level discussions, members of the committee agreed that not only health care, but the personal stories of people across the country would be the most effective strategy for day one.

“Senators knew from the beginning they wanted to make this as tangible to people as possible, focusing on the what’s at stake message and the real-life effects of a Justice Barrett’s decisions. That goal and subsequent member conversations led to the decision to use the personal stories,” a Democratic aide on the committee said.

Read the full story here.

Following Amy Coney Barrett’s opening statement yesterday, the committee adjourned until today for a round of questioning expected to begin at 9:00 a.m. ET.

Barrett will be grilled by Senate Judiciary Committee members over the course of today and Wednesday. Senators have the option of appearing and questioning the witness in person or remotely.

Here are some topics that will likely take center stage:

Voting rights: Before even reaching substantive constitutional questions, Democrats are expected to ask Barrett whether she will recuse herself from any election-related litigation that reaches the high court. Although it’s a long shot, it is always possible the Supreme Court will once again be called upon to decide the election.

“I think this will end up at the Supreme Court,” Trump said at a recent White House event. “And I think it’s very important that we have nine justices.”

Barrett is likely to avoid the question, but if she is confirmed it will be her own choice whether to recuse.

The Affordable Care Act: Democrats during Monday’s hearing turned the focus on the Affordable Care Act. A week after Election Day, the Supreme Court will hear the most important case of the term and decide whether to invalidate the entire law. The decision could strip millions of their health care during a pandemic. Critics of Barrett will point to some of her previous writings, before she took the bench, where she expressed skepticism about the reasoning Chief Justice John Roberts used back in 2012 to uphold the law under the taxing power.

Roe v. Wade: Democrats will also seize on positions Barrett took before she was a judge, on Roe v. Wade — the 1973 landmark decision legalizing abortion. Unlike other recent nominees, there is a significant paper trail detailing Barrett’s views on abortion, and Roe, as a law professor at the University of Notre Dame.

She signed a petition, for example, with other faculty, for a paid advertisement reaffirming the school’s commitment “to the right to life” and criticizing Roe. “In the 40 years since the infamous Roe v. Wade decision over 55 million unborn children have been killed by abortions,” the ad reads.

The Second Amendment: Last term, four conservative justices urged the court to take up a Second Amendment case, yet by the end of the term they had declined to do so. That suggests there wasn’t the necessary five votes. Now, if Barrett is nominated, she could be that vote.

In one decision, Kanter v. Barr, she dissented when her colleagues upheld a law barring convicted felons from possessing a firearm. The language she used in the opinion tracked closely with language used by conservative Justice Clarence Thomas. Like Thomas, Barrett suggested that lower courts are thumbing their nose at Supreme Court precedent to uphold gun restrictions treating the Second Amendment like a “second class right.”

In the upcoming hearings Sen. Richard Blumenthal, a Democrat, has vowed to make her views “front and center” to show how “Judge Barrett’s extremist, hard-right views of the Second Amendment will do real harm to real lives in real ways.”

Same-sex marriage: Barrett does not have a robust record on same-sex marriage, but in a 2016 speech at Jacksonville University made while she was still a law professor, she laid out both sides of the debate.

She framed it as a “who decides” question. That is very similar to how Roberts framed the issue when he dissented in the landmark 2015 case Obergefell v. Hodges, which cleared the way for same-sex marriage nationwide. He said the issue would have been better handled by the political branches. Speaking broadly, Barrett was asked about the future of the court in the speech and she seemed to align herself with Roberts’ thinking.

Read more here.

Watch Amy Coney Barrett’s opening statement at confirmation hearing:  

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