Supreme Court nominee Amy Coney Barrett returns to Capitol Hill for a third day of confirmation hearings as senators dig deeper into the conservative judge’s outlook on abortion, health care and a potentially disputed presidential election – the Democrats running out of time to stop Republicans pushing her quick confirmation.
Today’s session is set to be Barrett’s last before the Senate Judiciary Committee. She has been batting away questions in long and lively exchanges, insisting she would bring no personal agenda to the court but decide cases ‘as they come.’
Her nomination by President Donald Trump to replace the late Justice Ruth Bader Ginsburg has ground other legislative business to a halt as Republicans excited by the prospect of locking in a 6-3 conservative court majority race to confirm her over Democratic objections before Election Day.
‘We’re going to fill this vacancy,’ Sen. Lindsey Graham, R-S.C., the committee chairman, said late Tuesday after a nearly 12-hour session.
Graham said he appreciated that Trump had nominated a judge ‘who’s unabashedly pro-life, somebody who embraces their faith, but somebody who understands the difference between their personal views and judging.’
Barrett’s nomination has been the focus at a Capitol mostly shut down by COVID-19 protocols, frustrating Democrats who are virtually powerless to stop a judge from confirmation. They warn she will be seated on the court in time to cast a vote to undo the Affordable Care Act next month, causing millions of Americans to lose coverage during a pandemic.
Nominee: Amy Coney Barrett, on the first of two days of questioning by the Senate Judiciary Committee, faced scrutiny from Democrats over abortion, Obamacare, the outcome of the election and same-sex marriage
Remote questions: Kamala Harris, the Democratic vice-presidential candidate made Obamacare and abortion rights the center of her questions for Coney Barrett
‘People are fed up,’ said Senator. Dick Durbin, criticizing GOP priorities in forcing the Senate action as the country suffers from the pandemic and Congress squabbles over approving additional economic aid.
The 48-year-old appellate court judge declared her conservative views in often colloquial language, but she refused many specifics yesterday. She aligns with the late Justice Antonin Scalia, a conservative mentor, and declined to say whether she would recuse herself from any election-related cases involving Trump and Democratic nominee Joe Biden.
‘Judges can’t just wake up one day and say I have an agenda – I like guns, I hate guns, I like abortion, I hate abortion – and walk in like a royal queen and impose their will on the world,’ Barrett told the committee during its second day of hearings.
‘It’s not the law of Amy,’ she said. ‘It´s the law of the American people.’
Trump seemed pleased with her performance. ‘I think Amy’s doing incredibly well,’ he said at the White House departing for a campaign rally.
Trump has said he wants a justice seated for any disputes arising from his heated campaign against Biden, but Barrett testified she has not spoken to Trump or his team about election cases. Pressed by Democrats, she skipped past questions about ensuring the date of the election or preventing voter intimidation, both set in federal law, and the peaceful transfer of presidential power. She declined to commit to recusing herself from any post-election cases without first consulting the other justices.
‘I can’t offer an opinion on recusal without short-circuiting that entire process,’ she said.
A frustrated Sen. Dianne Feinstein, the top Democrat on the panel, all but implored the nominee to be more specific about how she would handle landmark abortion cases, including Roe v. Wade and the follow-up Pennsylvania case Planned Parenthood v. Casey, which confirmed it in large part.
‘It’s distressing not to get a good answer,’ the U.S. senator from California told the judge.
Barrett was unmoved. ‘I don’t have an agenda to try to overrule Casey,’ she said. ‘I have an agenda to stick to the rule of law and decide cases as they come.’
She later declined to characterize the Roe v. Wade decision that legalized abortion as a ‘super-precedent’ that must not be overturned.
Democrats had no such reticence.
‘Let’s not make any mistake about it,’ said California Sen. Kamala Harris, the Democratic vice presidential nominee, appearing remotely due to COVID concerns.
Allowing Trump to fill the seat with Barrett ‘poses a threat to safe and legal abortion in our country,’ Harris said.
She added: ‘I would suggest that we not pretend that we don’t know how this nominee views a woman’s right to choose to make her own health care decisions.’
‘Republicans are scrambling to confirm this nominee as fast as possible because they need one more Trump judge on the bench before November 10 to win and strike down the entire Affordable Care Act,’ she said. ‘This is not hyperbole. This is not a hypothetical situation. This is happening.’
She also connected a 2017 article by Barrett to Trump’s nomination of her – in light of his own comments about taking down Roe.
‘My question is how many months after you published that article did President Trump nominate you to be a judge on the Court of Appeals?’ she asked.
Questions on contentious issues: Amy Coney Barrett was asked about her positions on Roe v. Wade, same-sex marriage, the Affordable Care Act and whether she would recuse herself from ruling on cases relating to the upcoming election but declibe to spell out any position on them
The Senate, led by Trump´s Republican allies, is pushing Barrett´s nomination to a quick vote before Nov. 3, and ahead of the latest challenge to the Affordable Care Act, which the Supreme Court is to hear a week after the election. Democrats warn that she would be a vote to undo the ‘Obamacare’ law.
‘I’m not hostile to the ACA,’ Barrett told the senators.
The judge, accompanied by her family, described herself as taking a conservative, originalist approach to the Constitution. A former law professor, she told the senators that while she admires Scalia, she would bring her own approach.
‘You would not be getting Justice Scalia, you would be getting Justice Barrett,’ she declared.
Overall, Barrett’s conservative views are at odds with the late Justice Ruth Bader Ginsburg, a liberal icon.
Ginsburg offered a forthright defense of her position on abortion as a fundamental right for women when she was confirmed to the high court in 1993, while Barrett declined repeatedly to address whether she agrees, saying it was a ‘hypothetical’ and that she could be asked to rule on the issue.
Barrett would be Trump’s third justice.
At yesterday’s hearing, Barrett opened up about her decision to undergo the ‘excruciating process’ of accepting President Trump’s nomination to the Supreme Court – telling senators she strives never to ‘impose’ her own choices on others.
She addressed her Catholic faith saying that she did not bring it to her rulings as a federal appeals judge and would not do so if she is confirmed to the high court, and said she had known that her faith and that of her family would be ‘caricatured’ as a result of being nominated.
‘I have decided to pursue a career and have a large family. I have a multi-racial family. Our faith is important to us. They are my choices. I have never tried in my personal life to impose my choices,’ she said. She also said her family owns a gun.
‘We knew that our lives would be combed over for any negative detail, with he knew that our faith would be caricatured. We knew our family would be attacked.’
Underscoring the Republicans´ confidence, Graham set an initial committee vote on the nomination for Thursday, the last day of hearings, which would allow final approval by the full Senate by the end of the month.
Protesters rallied outside the Senate building, unable to come inside the hearing room.
Family arrival: Six of Amy Coney Barrett’s children arrived just ahead of her for the hearing
‘I want to be careful to say that if I’m confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett,’ she distinguished
CLASH AFTER CLASH ON ABORTION AS DEMOCRATS DEMAND TO KNOW IF ROE V. WADE IS SETTLED LAW
Barrett resisted attempts by Democrats who pressed her repeatedly on whether she believes Roe v. Wade was wrongly decided – which would be an obvious clue on whether she would vote to strike it down, a key aim of some conservatives but also a rallying cry for liberals.
‘If I express a view on a precedent one way or another, it signals to litigants that I might tilt one way or another on a pending case,’ she explained as she faced the question on Roe v. Wade by ranking Democrat Sen. Dianne Feinstein.
The senior lawmaker then asked Barrett if she agreed with the late Justice Antonin Scalia’s view that the case was wrongly decided.
Scalia expressed the view in dissents and in speeches, and Barrett said she sees herself as inspired by his philosophy – but repeatedly declined to answer questions about whether she agreed.
‘WE WEPT OVER GEORGE FLOYD VIDEO’
Coney Barrett said the police killing of George Floyd in Minneapolis in May had a ‘very personal’ effect on her family and she and her children wept over his death.
Barrett was asked by Illinois Democratic Sen. Dick Durbin whether she had seen the footage of a police officer pressing a knee to the black man’s neck until he stopped breathing.
Barrett said she had.
‘Given that I have two black children, that was very, very personal for my family,’ she said.
‘My 17-year-old daughter Vivian, who’s adopted from Haiti, all of this was erupting, it was very difficult for her. We wept together.’
Personal: Coney Barrett highlighted how her children, including adopted son John Peter, wept over the George Floyd video
She said Vivian was upset about the potential to happen to ‘her brother or the son she might have,’ and that she had also to explain to her youngest daughter the presence of racism in American society.
‘My children, to this point in their life, have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence,’ she said.
Barrett made a distinction between her feelings as a person and her role as a judge, refusing to give her thoughts on systemic racism as Durbin had requested.
She said commenting on what policies should be used to combat racism would be ‘kind of beyond what I´m capable of doing as a judge.’
Whether Roe v. Wade is settled law is a key liberal-conservative dispute, with liberals seeing the right to choose as just as settled as the court’s prohibition of segregation in Brown v. Board of Education, while conservatives do not, and say that they would like to see it overturned.
That would eliminate federal abortion rights and return abortion to being potentially outlawed by some states.
For decades confirmation hearings have seen judges asked about Roe v. Wade by both sides, with most nominees giving similar answers to Coney Barrett – although Ruth Bader Ginsburg told senators clearly that she believed in abortion rights at her confirmation hearing.
Coney Barrett did not offer any view.
‘Senator I completely understand why you are asking the question,’ she told Feinstein as she was asked if Roe v. Wade was ‘wrongly decided.’
‘I can’t pre-commit or say: yes I’m going in with some agenda because I am not,’ she said.
‘I don’t have any agenda. I have an agenda to stick to the rule of law and decide cases as they come.’
Nor would she say ‘as a person’ whether it should be overturned. Barrett said she understands ‘why it would be comforting to you to have an answer,’ but again refused to do so.
But she said the she would not bring her personal views to court and behave like a ‘royal queen.’
‘Judges can’t just wake up one day and say ‘I have an agenda. I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world,’ Barrett said.
Feinstein told her: ‘So on something that is really a major cause with major effects on over half of the population of this country – who are women, after all – it’s distressing not to get a straight answer.’
To further exhibit her qualifications to serve, which has been spouted by Republicans even before her nomination, Senator John Cornyn brought to attention the loads of material and papers laid out in front of members of the committee as they questioned Barrett.
‘Most of us have multiple notebooks and notes and books and things like that in front of us. Can you hold up what you’ve been referring to in answering our questions?’ the Republican from Texas asked the nominee.
She held up a blank notepad.
‘Is there anything on it?’ he asked.
‘The letterhead that says ‘United States Senate,” she read from the top of the notepad, provided to her by Congress.
‘That’s impressive,’ Cornyn applauded.
The senator only used 12 of his allotted 30 minutes.
Democratic Senator Sheldon Whitehouse of Rhode Island kicked off a second block of testimony by tearing into the process and bringing up past comments by Republicans on the committee. He said there were ‘outside forces are here pulling strings’ on the nomination.
‘We have colleagues here who supported you, this nominee, before there was a nominee,’ he said.
‘We have the political ram job that we have already complained of, driving this process through at breakneck speed in the middle of a pandemic while the Senate is closed for safety reasons,’ he continued.
‘We have some very awkward 180s from colleagues,’ he said, pointing to Graham’s infamous comment
He quoted Trump calling to ‘terminate health care under Obamacare,’ and the GOP platform calling to reverse Roe. v. Wade. Whitehouse held up a quote from Trump saying Roe would be undone automatically because he would put conservative justices on the court.
‘So don’t act surprised when we ask questions about whether that’s what you’re up to here,’ he told Barrett.
‘I KNEW OUR FAMILY WOULD BE PICKED OVER’
Barrett responded with a lengthy answer where she defended her own decisions inlife, vowed not to impose her lifestyle on others – and said it was her belief in the ‘rule of law’ that drove her to accept the nomination – in a remark that hinted at the steep national divides that serve as the backdrop of her confirmation fight.
‘Well, senator, I’ve tried to be on a media blackout for the sake of my mental health, but, you know, you can’t keep yourself walled off from everything, Barrett began.
‘And I’m aware of a lot of the caricatures that are floating around, so I think what I would like to say in response to that question is that, look, I have made distinct choices.
‘I have decided to pursue a career and have a large family. I have a multi-racial family. Our faith is important to us.’
‘All of those things are true, but they are my choices and in my personal interactions with people. I mean, I have a life brimming with people who have made different choices and I have never tried in my personal life to impose my choices on them and the same is true professionally,’ said the judge and former law professor.
I have decided to pursue a career and have a large family. I have a multi-racial family. Our faith is important to us. All of those things are true, but they are my choices.
Her defense of her life choices comes after media outlets have scoured her background in the two weeks since Trump named her for the lifetime appointment. With Obamacare, abortion rights, and a potential Biden agenda on the line, some outlets have mined her biography for clues on whether she would follow the mold of her influence Justice Anthony Scalia and Justice Clarence Thomas.
Barrett brought her seven children, including two who were adopted from Haiti, to the White House for the event celebrating her nomination, effectively putting them on the public stage.
The practicing Catholic had her dean at Notre Dame law school testify on her behalf. Media outlets have also scrutinized her membership of People of Praise, a charismatic religious group. Other details only emerged through the questionnaire process – like her signing on to a newspaper ad blasting Roe. V. Wade that she did not initially disclose.
But as in earlier questioning with Graham – and like many justices before her – Barrett described herself as someone who was bound by precedent and the principle of stare decisis – not as a judge who is driving to strike down Obamacare on her first weeks on the job, or to rip away precedents like Roe v. Wade, even if her allies consider it to have been wrongly decided.
Barrett introduced her husband, children and siblings by pointing to each after Feinstein requested to share who they are with the room
Each of the 22 senators on the Senate Judiciary Committee has 30 minutes to interact and ask questions of Barrett on Tuesday. Pictured are Chairman Lindsey Graham (left) and Democratic Ranking Member Dianne Feinstein (right) speaking with masks on ahead of the second day of the hearing
‘I mean, I apply the law and, senator, I think I should say why I’m sitting in this seat in response to that question, too. Why I have agreed to be here because i don’t think it’s any secret to any of you or to the American people that this is a really difficult, some might say excruciating process and [husband] Jesse and I had a very brief amount of time to make a decision with momentous consequences for our family.
‘We knew that our lives would be combed over for any negative detail, with he knew that our faith would be caricatured. We knew our family would be attacked. We had to decide whether those difficulties would be worth it because what sane person would go through that if there wasn’t a benefit on the other side?
‘The benefit i think is that I’m committed to the rule of law and the role of the Supreme Court in dispensing equal justice for all and I’m not the only person who could do this job– but I was asked and it would be difficult for anyone, 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.’
Barrett spoke about her discussions with family about her high-profile nomination even as she began her second day of hearings seeking to shroud any indications about how she might rule on critical faces facing the nation.
She also revealed another detail of her background during Graham’s questioning about key court principles when he asked if she owned a gun.
‘Ah, we do own a gun,’ Barrett responded. Graham then moved on to other subjects.
Barrett received praise from several senators, on both sides, regarding the well-behaved nature of her children as they sat still and quietly for hours during her hearing.
Republican Senator John Kennedy of Louisiana brought over blank pads of paper and pencils for Barrett’s children for their use in the midst of the hearing.
BARRETT QUESTIONED OVER SAYING: ‘IT SOUNDS KIND OF RADICAL TO SAY FELONS CAN HAVE FIREARMS’
While questions of the Second Amendment were not a central theme of the second hearing day, questions did arise throughout the day from several Democrats over Barrett’s decision in Kanter v. Barr while serving as judge on 7th Circuit.
In her dissenting opinion, Barrett ultimately wrote that the U.S. government should not prohibit nonviolent criminals who were convicted of a felony from legally buying a firearm after they had served their sentence.
Currently, convicted felons are stripped of their Second Amendment rights along with others – including the right to vote.
Senator Richard Blumenthal of Connecticut, brought up the language of her opinion where Barrett admitted that the reasoning could appear ‘radical.’
‘It sounds kind of radical, because it is radical. In fact, no courts of appeals, except maybe the 7th Circuit, has adopted this reasoning,’ Blumenthal quipped at Barrett as she said she did not remember writing that.
Barrett’s jurisdiction in the 7th Circuit includes Wisconsin, Illinois and Indiana. She claimed the 3rd Circuit Appeals Court, which includes Pennsylvania, New Jersey and Delaware, might have the same reasoning.
Senator Amy Klobuchar of Minnesota also called out Barrett for her decision in Kanter v. Barr.
‘You said these rights belong only to virtuous citizens. I’m trying to understand what that means,’ Klobuchar said.
Barrett reasoned that nonviolent felons should be awarded the right to a firearm because it is an civic right. She argues that voting is an individual right that could still be kept from felons without violating the Constitution.
Klobuchar pushed back, claiming that arguing for the right to a firearm but against voting in the case of felons was inherently racist.
CORY BOOKER PUTS TRUMP ON TRIAL WITH QUESTIONS TO JUDGE – AND HIS TARGET LASHES OUT ON TWITTER
Sen. Cory Booker tried to put President Donald Trump on trial during intensive questioning – and immediately drew an angry response from his target.
Trump lashed out at Booker after the Democrat cornered Barrett for 30 minutes of questions more than eight hours into her Senate appearance for her Supreme Court confirmation.
Booker not only queried her about hot court topics like abortion and same sex marriage – but dove into topics that Trump on the spot – including his refusal at the first presidential debate to condemn white supremacy and his refusal to pledge a peaceful transfer of power.
‘I wish out president would say that so resolutely unequivocally as well,’ he told Barrett, after she did condemn white supremacy in response to a question.
When Booker was done, Trump accused him of making ‘false charges,’ called him an ’empty suit,’ and accused him of not living in Newark when he was mayor.
‘How dare failed Presidential Candidate (1% and falling!) @CoryBooker make false charges and statements about me in addressing Judge Barrett. Illegally, never even lived in Newark when he was Mayor,’ Trump said in a pair of tweets as soon as Booker finished.
‘Guy is a total loser! I want better Healthcare for far less money, always …protecting people with Pre-existing conditions. He has done nothing on Healthcare, cost or otherwise, or virtually anything else. An empty suit!!!’
Booker, employing a soft tone and a smile even as he repeatedly delved into fraught topics, tried to get Barrett – who held up her status as an ‘originalist’ during her hearings – to split with Trump on demanding a peaceful transfer of power.
Trump’s comments about white supremacy and a peaceful transfer of power became fodder for Judge Amy Coney Barrett’s confirmation hearings
Trump lashed out a Booker immediately after his questioning time
Trump for days would only say he would agree to a peaceful transfer if there were a ‘fair’ election.
‘To the extent that this is a political context right now, as a judge I want to say out of it,’ Barrett told him.
‘In light of our founding fathers, in light of our traditions … I’m just asking you should a president commit themselves like our founding fathers I think had the clear intention … to the peaceful transfer of power,’ Booker tried again.
Barrett responded only that: ‘One of the beauties of America … is that we have had peaceful transfers of power,’ whereas many other nations don’t, she said.
Booker then hit Trump’s Supreme Court nominee with an arcane question that is also debated by scholars: whether the Constitution permits a president to pardon himself.
It is a potential issue, as Trump investigation by federal prosecutors in New York, and the New York Times obtained Trump tax returns that experts said could open him to investigation for potentially fraudulent tax deductions. Trump paid just $750 in federal income taxes in 2016, the Times reported.
‘That would be a legal question. That would be a constitutional question,’ Barrett told him on the pardon. ‘I think I agree with you. That it is an issue right now that our president may seek to pardon himself,’ Booker said.
It was one of several topics Barrett sought to dodge, and it is one she might have to consider if she makes it to the high court and Trump does take the action.
The Booker asked about Trump’s reported multi-million debts to foreign entities. ‘I think it’s disturbing that we’re having this conversation,’ he told the witness.
‘Presidents should reveal what their debts are. Especially if it’s to foreign nations,’ Booker told her.
Booker began quoting former Trump Defense James Mattis calling Trump a ‘danger to our democracy.’ Mattis blasted Trump in June after the clearing of protesters across from Lafayette Park.
‘The legitimacy of our institutions are at stake,’ Booker said. ‘It’s not normal that the president would further cast a shadow over your nomination,’ he added. ‘It’s an illegitimate process. Most Americans think that we should wait.’
Trump’s attack appeared to revive a 2013 claim by Booker’s former opponent, although his campaign shot back that property records and other evidence established Booker lived in Newark from 2006 through 2013 while he was mayor. Booker’s campaign provided rent checks as well as payments from his security detail, which lived on a floor of a home following threats.
DEMOCRATS PRESS ON OBAMACARE
The appeals court judge refused to get pinned down on whether she would recuse herself from the Affordable Care Act case – even though President Trump has said repeatedly he wants to take down the law.
Democrats have made the alleged threat she represents to Obamacare the center of their strategy for the hearings, seeing her confirmation as inevitable but putting healthcare on the ballot as beneficial to them in November.
Asked if she would step aside from the case she said: ‘That’s not a question that I could answer in the abstract.’
She repeatedly tried to reassure Sen. Richard Durbin that she is not ‘hostile’ to the Affordable Care Act – although she acknowledged that in legal writings she has attacked the reasoning of a Supreme Court decision that upheld most of the law in 2012.
‘And I assure you that I am not. I am not hostile to the ACA I am not hostile to any statute that you pass,’ she said.
‘Judges can’t just wake up one day and say ‘I have an agenda. I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world.
Texas Republican John Cornyn described the Democrats’ question as ‘ACB v. ACA.’
Oral arguments regarding the ACA will begin in November – after the election but two months before inauguration.
They center on a Republican-led attempt to strike down the whole law on the grounds that the individual mandate is unconstitutional, which the Trump administration supports but which Democrats oppose.
Barrett was questioned about her past writings, including a piece in which she was critical of Chief Justice John Roberts’ previous rulings on the Obama-era law.
The appellate court judge distanced herself from those writings, saying they were not addressing specific aspects of the law which she may have to rule on if confirmed. The court is set to hear a challenge to the law Nov. 10.
Barrett told the senators, ‘I apply the law. I follow the law. You make the policy.’
Still, Barrett appeared stumped when grilled by Democratic Sen. Patrick Leahy of Virginia about particulars of the law, also called Obamacare. Barrett could not recite specifics, including that 23 million people are covered by the law or that more than 2 million people are on their parent’s health insurance.
White House Chief of Staff Mark Meadows joined the hearing in-person the second part of the day and took a seat on the sidelines of the hearing room
Fist bump: Meadows and Graham shared a ‘COVID-friendly’ greeting by fist-bumping each other before walking into the hearing room for Part 2 of the second day of Barrett’s confirmation hearing
DEMOCRATS PRESS ON ELECTION RULINGS
Nor would she commit to recusal should the Supreme Court take up a disputed case resulting from the presidential election. Trump handed Democrats the issue when he stated as a reason to fill the court vacancy in part to settle any election disputes on the election, after repeatedly attacking mail-in ballots.
‘I have had no conversations with the president or any of his staff on how I might rule on that case,’ she told Democratic Sen. Patrick Leahy of Vermont.
‘I can’t offer an opinion on recusal without short-circuiting that entire process,’ she said.
The Republican president has said he expects the Supreme Court to decide the election’s outcome as he faces Democratic challenger Joe Biden.
Barrett said no one at the White House sought a commitment from her on how she would rule on that or any issue.
‘It would be a gross violation of judicial independence for me to make any such commitment or for me to be asked about that case,’ Barrett told the committee of possible election cases.
Leahy connected Trump’s statements about getting a full court to rule on his election with the decision to ‘ram through’ Barrett’s nomination just weeks before Election Day.
All she would allow is that ‘I commit to you to fully and faithfully applying the law of recusal,’ and that she could ‘consider any appearance questions’ – meaning the appearance of a conflict of interest even if none actually existed.
Senator Chris Coons insisted Barrett’s impartiality could come into question if a case on deciding the presidential election ended up at the Supreme Court – and pushed the judge on whether she would recuse herself from such a case.
‘Given what President Trump said, given the rushed context of this confirmation, will you commit to recusing yourself from any case arising from a dispute in the presidential election results three weeks from now?’ the Delaware senator asked of Barrett during her second marathon hearing day Tuesday.
‘I want to be very clear for the record and to all members of this committee that no matter what anyone else may think or expect, I have not committed to anyone or so much as signaled… – I haven’t even written anything that I would think anybody could reasonably say, ‘Oh, this is how she might resolve an election dispute,’ Barrett explained.
She also said she would commit to consider all relevant factors when deciding whether to recuse herself from a case where there is an ‘appearance of bias.’
‘In describing the recusal process of the Supreme Court, Justice Ginsburg said that it is always done with consultation of the other justices,’ Barrett said, inciting the words of the late justice whose vacant seat she would fill if confirmed.
‘So I promise you, if I were confirmed and if an election dispute arises – you know, both of which are ifs – then I would very seriously undertake that process and consider every relevant factor,’ she continued. ‘I can’t commit to you right now…. But I do assure you of my integrity and I do assure you that I would take that question very seriously.’
Her remark seemed designed to assure a skeptical block of outvoted senators and the public that she would not use her powerful lifetime position to foist her religious views or conservative social beliefs on the nation.
On Tuesday, she spoke at length after Judiciary Committee Chairman Sen. Lindsey Graham tossed her a softball question, asking the appeals court judge: ‘How does it feel to be nominated for the Supreme Court of the United States?’
High-profile hearing: The confirmation is being held in the Senate’s largest hearing room to ensure social distancing
Look no notes! Coney Barrett was asked to show what materials she was relying on as she was questioned and held up a blank notebook of headed Senate paper – which is left on the desk for all witnesses
WILL CONEY BARRETT OVERTURN GAY MARRIAGE RULING?
Coney Barrett didn’t provide much more information on the landmark Obergefell v. Hodges case, which established a right to same sex marriage when she was asked about it.
It was the subject of a fiery dissent earlier this month by conservative justices Clarence Thomas and Samuel Alito, who said it should be overturned – suggesting that it could in fact be something the high court comes to rule on again.
Barrett was asked because Scalia – her mentor – firmly expressed the view that Obergefell was not constitutional.
But Barrett said that a challenge to the ruling would be about ‘substantive due process’ that was not explicitly spelled out in the Constitution, after explaining her philosophy as a textualist.
She said the Supreme Court has ‘grounded’ rights in the Constitution which ‘are not expressed,’ and that this included same-sex marriage.
But she explained there also was a ‘reliance interest’ in that there are ‘people in the United States who have ordered their affairs around it.’
Barrett explained that any effort by a state to try to take away the rights established by the ruling must go through a multi-phase process.
If [a state] outlawed same-sex marriage, there would have to be a case challenging it. And for the Supreme Court to take it up, you’d have to have lower courts going along and say, ‘We’re going to flout Obergefell,’ she said.
‘And the most likely result would be that lower courts, who are bound by Obergefell, would shut such a lawsuit down and it wouldn’t make its way up to the Supreme Court. But if it did, it would be the same process I’ve described,’ she said.
She also said ‘I do not discriminate on sexual preference,’ a use of language which was different from the more normal term sexual orientation.
Later on in the day, Democratic Senators Mazie Hirono of Hawaii and Cory Booker of New Jersey called out Barrett for using the term ‘sexual preference’ to describe those within the LGBTQ community.
The Hawaii senator said even though Barrett did not give a direct response on if she agreed with her mentor, the late Justice Antonin Scalia, that same sex marriage should not be protected under the Constitution her response did ‘speak volumes.’
‘Not once, but twice, you used the term ‘sexual preference’ to describe those in the LGBTQ community. And let me make clear, ‘sexual preference’ is an offensive and outdated term,’ Hirono said.
She continued: ‘It is used by anti-LGBTQ activists to suggest that sexual orientation is a choice. It is not. Sexual orientation is a key part of a person’s identity.’
‘If it is your view that sexual orientation is just a preference, as you noted, then the LGBTQ community should be rightly concerned whether you would uphold their constitutional right to marry,’ she said.
Hirono accused that if Barrett were confirmed she could adopt the same ‘resistant’ view as Scalia that those within the LGBTQ community do not have equal rights and protections under the Constitution.
‘YOU WON’T GET JUSTICE SCALIA, YOU’LL GET JUSTICE BARRETT’
Barrett embraced her classification as a ‘female Scalia’ on Tuesday as questioning of the Supreme Court nominee commenced on Day 2 of her confirmation hearing – but made sure to distinguish herself from the last Justice.
‘Justice [Antonin] Scalia was obviously a mentor,’ Barrett began of the Supreme Court Justice she clerked for, adding her previous claim that ‘his philosophy is mine too.’
‘He was a very eloquent defender of originalism, and that was also true of textualism’ she said.
‘But I want to be careful to say that if I’m confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett,’ she distinguished. ‘And that’s so because originalists don’t always agree and neither do textualists.’
Barrett arrived with her family in tow for the second day of her confirmation hearing Tuesday morning as she prepares to field questions from all 22 members of the Senate Judiciary Committee – each receiving 30 minutes.
Like Monday, pro-abortion and anti-Trump protesters and healthcare activists immediately gathered outside on Capitol Hill to express their opposition to Barrett’s nomination.
Barrett would not say if she believed the court could overturn Roe v. Wade in the future
Like the first day of the hearing Monday, demonstrators immediately gathered outside on Capitol Hill to protest Barrett’s nomination
The demonstrators were met by pro-life and pro-Trump protesters holding signs with images of Barrett reading ‘Hope’.
Chairman Lindsey Graham started the day off asking Barrett to explain her ‘originalist’ views in plain English.
‘I interpret the Constitution as a law,’ she detailed. ‘I understand it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy view into it.’
Graham, a Republican Senator from South Carolina, kicked off the day by telling Barrett she could relax and remove her white face cover and then launched a monologue claiming he wanted to distinguish between politics and judgeships.
He railed against the Affordable Care Act, which Democrats spent the majority of their time during Monday’s opening remarks claiming was at risk if Barrett were confirmed.
Six of Barrett’s seven children and her husband sat in a row over her right shoulder while her youngest child, who has Down Syndrome, remained at home for the hearings – but she assured he was watching her on TV.
The row behind her children and husband were seated all six of Barrett’s siblings.
Behind her to the left sat White House Counsel Pat Cipollone and for the second half of the day, White House Chief of Staff Mark Meadows joined the hearing room.
On Monday, all members of the committee, along with Barrett, made their opening statements.
Democrats argued against Barrett’s nomination, claiming it’s a political move made just weeks before the 2020 election by President Donald Trump to strike down the Affordable Care Act at the Supreme Court level.
They also claim her religion could get in the way of her being a ‘fair’ Justice, and say her devout Catholic beliefs would lead to the dismantling of abortion rights with a 6-3 conservative Supreme Court likely to overturn Roe v. Wade.
Republicans, on the other hand, said Democrats are playing politics and making a judgeship into a campaign issue. The GOP is also accusing the opposition party of creating a religious test for Barrett, which they lament is against the Constitution.
CLASH WITH KLOBUCHAR ON IN GRUDGE MATCH FROM KAVANAUGH HEARINGS
Tuesday’s hearings featured a tense clash between the nominee and Sen. Amy Klobuchar – following Klobuchar’s televised battle with now Justice Brett Kavanaugh during his own hearing. Klobuchar had asked Kavanaugh whether he had ever experienced a blackout, after testimony about his high school drinking, amid rape and sexual assault allegations that he vigorously denied.
With Barrett, Klobuchar asked a series of questions about court cases, and tried to get to whether Barrett considered them binding precedent.
Barrett avoided substantive answers, even when Klobuchar about voter intimidation, which is already on the legal books.
‘Judge Barrett under federal law is it illegal to intimidate voters at the polls?’ Klobuchar asked.
‘Senator Klobuchar, I can’t characterize the facts in a hypothetical situation, and I can’t apply the law to a hypothetical set of facts. I can only decide cases as they come to me, litigated by parties on the full record,’ she said.
When she tried again, Barrett responded: ‘Sen. Klobuchar that is eliciting – I’m not sure if it’s elicidating [eliciting] a legal opinion from me … or just an opinion as a citizen but it’s not really something that’s appropriate for me to comment on.’
Then Klobuchar asked about a legal article she wrote, about cases such as Brown v. Board of Education that are considered ‘super precedents’ that are essentially accepted as binding.
‘Is Row a super precedent?’ Klobuchar wanted to know.
‘How would you define super precedent?’ the nominee shot back.
‘Actually, I might [have’ thought someday I’d be sitting in that chair. I’m not so I’m asking you,’ Klobuchar responded.
‘I’m answering a lot of questions about Row, which indicates that Row doesn’t fall in that category,’ Barrett explained, signaling it is outside of that category.
‘Why won’t you say that about Row v. Wade?’ Klobuchar said, pushing for a straight answer.
‘Senator I can just give you the same answer that I just did,’ Barrett told her.