WASHINGTON (NewsNation Now) — Supreme Court nominee Amy Coney Barrett faced questioning from senators during the second day of confirmation hearings on Tuesday, as the Judiciary Committee draws closer to an initial vote later this week.
After a full day of opening statements Monday, Judge Barrett’s confirmation hearings pivoted to a question-and-answer portion.
For the first round, senators had 30 minutes to question Barrett on her views and legal history. The questioning period is expected to carry into Wednesday.
Senate Judiciary Committee Q&A
In opening statements on Tuesday, Sen. Lindsey Graham, R-SC, Chairman of the Senate Judiciary Committee, went over the process of the question and answer forum.
Graham started his 30 minute portion by explaining what he called “the difference between politics and judging.” He referenced Monday’s confirmation hearings criticizing the focus on saving the Affordable Care Act.
“My colleagues on the other side had very emotional pleas about Obamacare. Charts of people with preexisting conditions,” said Graham. “From my point of view, Obamacare has been a disaster for the state of South Carolina. All of you over there, Warren imposed Obamacare on South Carolina. We don’t want it, we want something better. We want something different. You know what we want in South Carolina? South Carolina care not Obamacare. Now why do we want that? Under the Affordable Care Act 3 states get 35% of the money folks. Can you name them? I’ll help you, California, New York and Massachusetts.”
Graham went on to explain how Judge Amy Coney Barrett will play a role in the fate of the ACA.
“There’s a lawsuit involving the Affordable Care Act before the Supreme Court will talk about that in a bit. And the difference between analyzing a lawsuit and having a political argument is fundamentally different and I hope to be able to demonstrate that over the course of the day,” said Graham.
Graham’s first question directed at Judge Amy Coney Barrett, “You said you’re an originalist is that true? What does that mean in English?”
“That means that I interpret the Constitution as a law. That I interpret its text as text. And I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to updated or infuse my own policy views into it,” said Barrett.
Graham followed up his question with referencing the late Justice Antonin Scalia’s ideology and how Barrett compares.
“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. You know he was a very eloquent defender of originalism and that was also true of textualism which is the way that I approach statutes and their interpretation,” said Barrett. “And similarly to what I just said about originalism for textualism the judge approaches the text as it was written with the meaning it had at the time and doesn’t influence your own meaning into it. 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.”
Graham talked about Justice Ginsburg being a “trailblazer” and “unashamedly progressive in her personal thought.” He said we want the American people to know that you can “still be qualified for the Supreme Court” while living your life in “traditional Catholic fashion.”
“So all the young conservative women out there, this hearing to me is about a place for you. I hope when this is all over that you, there will be a place for you at the table. There will be a spot for you at the Supreme Court like there was for Judge Ginsburg,” said Graham.
The next line of questioning focused on Barrett’s legal writings. Sen. Graham asked her to explain her thoughts on Brown vs. Board of Education. In the 1954 landmark Supreme Court case, justices ruled unanimously that racial segregation of children in public schools was unconstitutional.
“In my writing, I was using a framework that’s been articulated by other scholars and in that context, super precedent means precedent that is so well established that it would be unthinkable that it would ever be overruled and there are about six cases on this list that other scholars have identified,” said Barrett.
Graham moved on to question Barrett about the rationale for Roe v. Wade. In 1973, in the landmark decision of the U.S. Supreme Court in Roe v. Wade, the Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. Graham also discussed a bill he introduced that would not allow abortion in the fifth month of pregnancy, asking Barrett how she would proceed if the litigation made its way before the Supreme Court. Barrett replied saying she would listen to both sides and would “do that in every case.”
Graham moved on the topic of gun control, Barrett who said she owns a gun, responded with a yes when asked if she could fairly decide a case. Graham continued to question Barrett about her process on several topics including Citizens United, same-sex marriage and how she feels about being nominated to serve on the United States Supreme Court.
“We knew that our lives would become combed over for any negative detail, we knew that our faith would be caricature. We knew our family would be attacked. And so 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?” said Barret. “The benefit I think is a commitment to the rule of law and the role of the Supreme Court and 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.”
Sen. Dianne Feinstein, D-CA, ranking member of the Senate Judiciary Committee, started her time with Barrett with the topic of abortion. Feinstein discussed Justice Ruth Bader Ginsburg’s view that the constitution protects a woman’s right to abortion and she quoted Ginsburg’s stance, ‘the decision whether or not to bear a child is central to a woman’s life to her well-being and dignity. It’s a decision she must make for herself when government controls that decision for her she is being treated as less then a fully adult human responsible for her own choice.’ Feinstein asked Barrett if she believes Roe v. Wade was wrongly decided, a position the late Justice Scalia took.
“I think in an area where precedent continues to be pressed and litigated as is true of Casey. It would actually be wrong and a violation of the candidates for me to do that as a sitting judge. So if I express a view on a precedent one way another whether I say I love it, I hate it, it signals to litigants that I might tilt one way or another in a pending case,” said Barrett.
Feinstein reiterated her question whether or not Barrett agreed with Justice Scalia’s position that Roe v. Wade was wrong.
“Senator I completely understand why you’re asking the question. Again I can’t pre-comment or say yes I’m going in with some agenda because I’m not, I don’t have any agenda. I have no agenda to try to overrule Casey, I have an agenda to stick to the rule of law, decide cases as they come,” said Barrett.
Feinstein rephrased the question for the third time but Barrett’s answer remained the same.
Feinstein responded, “Well that makes it difficult for me and I think for other women also on this committee because this is a very important case and it affects a lot of people millions and millions of women and you could be a very important vote. And I had hoped you would say as a person. You’ve got a lovely family, you understand all the implications of family life. Should be very proud of that—I’m proud of you for that. But my position is a little different, you’re going on the biggest court of this land with the problem out there that all women see one way or another in their life. Not all but it certainly married women do. and others too. And so the question comes what happens and will this justice support a law that has substantial precedent now? Would you commit yourself and whether you would or would not?”
Barrett said in an exchange with Democratic Sen. Amy Klobuchar that the Roe decision does not have the same secure place in the law as Brown v. Board of Education.
Barrett says no one talks about overturning the Brown decision. But she says all the questions she’s gotten in her confirmation hearing about her views of abortion “indicates Roe doesn’t fall in that category.” She says it’s “not a case that’s universally accepted.”
Feinstein also asked Barrett’s position on gun violence citing a “troubling spike in gun sales.” She said, “Americans bought approximately 2 million guns this past March. It’s the second highest month ever for gun sales. That figure does not take into account all the gun sales that could not be completed because the purchaser failed a background test.”
Feinstein also quoted Barrett’s recent dissenting opinion on the topic. In a dissent in the 2019 gun rights case of Kanter v. Barr, Barrett argued a conviction for a nonviolent felony such as mail fraud was not enough to disqualify someone from owning a gun.
“You said, ‘no question’ that ‘keeping guns out of the hands of those who are likely to misuse them’ is ‘a very strong governmental interest.’ Do you stand by that statement?” said Feinstein.
“What I said in that opinion I stand by which is that the original meaning of the second amendment and I went through a lot of detailed history in that case, does support the idea that governments are free to keep guns out of the hands of the dangerous so for example, the mentally ill others who would be likely to misuse guns,” said Barrett.
Feinstein asked Barrett to clarify her position on how she would view her “place on the court with respect to controlling weapons in this country.”
“I think what I can say is that my opinion and canter shows how I approach questions as a matter of judicial philosophy. Meaning I spent a lot of time on that opinion looking at the history of the second amendment and looking at the Supreme Court’s cases. And so the way in which I would approach the review of gun regulation is in that same way to look very carefully at the text,” said Barrett. “I promised that I would come to that with an open mind applying the law as I can best determine it.”
Feinstein referenced President Trump’s claims of voter fraud and his suggestion to delay the upcoming election. She asked Barrett whether or not “the Constitution gives the president of the United States, the authority to unilaterally delay a general election under any circumstances?
“If that question ever came before me I would need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion writing process. So you know if I give off the cuff answers and I would be basically a legal pundit. And I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind,” said Barrett.
Barrett said that she has not been asked by Trump or anyone else how she’d rule in possible upcoming cases, including the election.
Sen. Chuck Grassley, R-IA, began his questioning with highlighting Judge Barrett’s career and then followed up with a question, “How important is legislative history to you, when is it appropriate to look to legislative history didn’t to endure the statute. And are there some circumstances one more appropriate another.”
“I’m very comfortable talking about the use of legislative history because that’s a matter of interpretive philosophy. What governs of course is the text of the statute, so you know the legislative history can never supersede the text and it should never substitute for the text of the statute,” said Barrett. “As a general rule, I don’t look to legislative history when I’m deciding cases. I wouldn’t say that it would never be relevant even Justice Scalia himself said that there could be instances.”
The Affordable Care Act continued to be a theme during the confirmation hearings. Sen. Dick Durbin, D-IL, shared a personal story of a family that relies on the ACA for their health benefits. He went on to question Barrett on her writings in regards to the Affordable Care Act.
“I think that your concern is that because I critique the statutory reasoning that I’m hostile to the ACA and that because I’m hostile to the ACA that I would decide a case a particular way. 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,” said Barrett.
Durbin asked Barrett whether she had seen the footage of a Minneapolis police officer pressing a knee to the George Floyd’s neck until he stopped breathing. Barrett said she had.
Barrett has two Black adopted children. She says the Floyd video was “very, very personal” for her family and they “wept together.”
Barrett made a distinction between her feelings as a person and her role as a judge, withholding her thoughts on Durbin’s question about systemic racism.
“Giving broader statements or making you know, broader diagnoses about the problem of racism, is kind of beyond what I’m capable of doing as a judge,” said Barrett.
The 48-year-old appellate court judge declared her conservative views with often colloquial language, but refused many specifics. She declined to say whether she would recuse herself from any election-related cases involving President Donald Trump, who nominated her to fill the seat of the late Justice Ruth Bader Ginsburg.
“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 Senate Judiciary Committee during the second day of hearings.
“It’s not the law of Amy,” she said later. “It’s the law of the American people.”
During her Senate Judiciary Committee confirmation hearing, Barrett has so far said it would be “inappropriate” to restate her personal view on abortion as a public official and that she signed a 2006 statement opposing “abortion on demand” that was circulated by a group in her home state of Indiana “in my personal capacity.”
While the statement Barrett signed didn’t address IVF, the group that circulated it has also criticized IVF. Democratic Sen. Tammy Duckworth of Illinois has urged her colleagues to reject Barrett’s nomination, citing her daughter’s conception using the common reproductive technology.
The Roman Catholic Church, of which Barrett is a member, is opposed to abortion. The U.S. Conference of Catholic Bishops has described IVF as “in disagreement” with church teachings.
Barrett answered questions from Democratic Sen. Chris Coons of Delaware, who brought up the article she wrote in 2017 before she became a judge that said Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Democrats have focused much of their questioning on the health care law, as the court will hear a new case in November that could overturn it. Barrett said that case is very different, and her “critique of the reasoning” in the previous case does not mean she doesn’t like the law. “I can promise you that’s not my view, that’s not my approach to the law,” she said.
Coons said he believes the article is highly relevant to the upcoming case and that in many ways Barrett has signaled how she would rule. He said he believes Republicans are rushing her confirmation partly so she can rule on that case.
“It concerns me gravely,” Coons said.
What’s next after the hearings
The hearings will then wrap up Thursday, when outside witnesses are expected to make their case for and against President Donald Trump’s choice to fill the vacant seat left by late Justice Ruth Bader Ginsburg.
Judiciary Committee Chairman Sen. Lindsey Graham has already scheduled an initial committee vote on the nomination for Thursday morning, before the final day of hearings. It would allow for final approval by the panel one week later. A full Senate vote for confirmation would then be held by the end of October, just about a week before Election Day.
“From a qualifications point of view, I think she is a slam dunk. Unfortunately, politics abounds now around judges. We’ll see what happens in the next two days,” Graham told reporters
Northwestern University Law Professor Martin Redish, who specializes in constitutional law and federal jurisdiction, told NewsNation to watch Tuesday for Democratic senators to focus on health care and the potential threat to the Affordable Care Act, an effort by former President Barack Obama to expand medical coverage to millions of Americans.
“The decision the Democrats appear to have made is to try to turn judicial lemons into political lemonade,” Redish said. “They realize that they can’t stop her, the confirmation. There’s really no way they can, so what they’re trying to do while the nation’s attention is turned here is make a strong political argument that the Republicans are out to destroy Obamacare, the Affordable Care Act.”
It’s an issue that Democratic Sen. Dick Durbin, of Illinois, brought attention to on Monday.
“President Trump has explained it. He wants to make sure we eliminate the Affordable Care Act, and that protects 23 million people with health insurance in this country. That protects over 100 million with preexisting conditions so they can afford to buy insurance,” Durbin told NewsNation. “The president has said he wants Judge Barrett to go to the court and eliminate the Affordable Care Act.”
Republican efforts to repeal the Affordable Care Act in Congress have failed.
Republican Senator Ted Cruz said the Democratic focus on health care and other policy issues showed they were not contesting Barrett’s qualifications to serve as a justice.
Among Republicans, Sen. Chuck Grassley, R-Iowa, dismissed warnings Barrett will undo the law as “outrageous.”
President Trump tweeted several times about the hearing. In one message, he tweeted that he’d have a “FAR BETTER” health care plan, with lower costs and protections for preexisting conditions.
“This nominee said she wants to get rid of the Affordable Care Act. The president wants to get rid of the Affordable Care Act,” presidential nominee Joe Biden said. “Let’s keep our eye on the ball.”
Redish said that as powerful as the arguments over the health care policy may be on a political level, they “really have nothing to do with the legal issues.”
“The court doesn’t decide the constitutionality of the statute on the basis of whether it thinks the statute is doing good things or bad things, and the Democrats know that,” he explained.
Instead, Redish notes that their mission is to speak to “the American public about the social and political impact that’s coming here and at this late stage of a presidential election.”
If confirmed before the presidential election, Barrett could participate in a case seeking to invalidate the Affordable Care Act, which is scheduled for Nov. 10.
The Associated Press and Reuters contributed to this report.