Amy Coney Barrett grilled on Day 2 of Senate confirmation hearings

Ranking member Sen. Dianne Feinstein, D-Calif., focused squarely on the future of the landmark abortion cases -- Roe v. Wade and Planned Parenthood v. Casey -- recalling a time when abortion was not legal in the U.S. and she says she saw young women hurt themselves trying to seek care elsewhere as a result. 

“Do you agree with Justice Scalia's view that Roe was wrongly decided?” Feinstein asked. 

Barrett declined to answer specifically, citing precedent to not share how one would decide on a case as a sitting judge.

Barrett declines to answer: “If I express a view on a precedent … it signals to litigants that I might tilt one way or another in a pending case.”

“I'll invoke Justice Kagan's description in her confirmation hearing. She said she wouldn't grade precedent or give it a thumbs up or thumbs down. In an area where precedent continues to be pressed and litigated -- as is true of Casey -- it would be particularly -- it would be wrong and a violation of the cannons for me to do that as sitting judge,” Barrett said. “So if I express a view on the precedent one way another whether I say or love it or hate it, it signals to litigants I might tilt one way or another in a pending case.”

Feinstein, saying she was "distressed not to get a straight answer," tried again. “Do you agree with Justice Scalia's view that Roe can and should be overturned by the Supreme Court?”

Barrett provided the same non-answer. 

“Because, you know, that's a case that is litigated. It could -- its contours could come up again. They came up last term before the court. So, I think what the Casey standard is and that's just a contentious issue which is one reason why it would be comforting for you to have an answer but I can't express views on cases or pre-commit to approaching a case any particular way,” she said. 

Feinstein said Barrett’s answer would make it difficult for women on the committee to support her.

After Graham ripped into the Affordable Care Act in what he acknowledged was an example of approaching the issue as a political question, he pivoted to landmark abortion rights cases and the process for a state to enact laws that challenge them.

She answered that there is a "debate on how to define these rights and how far it should go." br/>
In an attempt to allow Barrett to clearly say she would separate her personal views from her responsibilities as a judge, Graham asked Barrett if she could decide on cases involving guns, being a gun owner, and cases involving religion, being a devout Catholic. 

“I can,” she answered, asked if she could set aside her personal beliefs. “I have done that in my time on the Seventh Circuit. If I stay there I'll continue to do that. If I'm confirmed to the Supreme Court, I will do that still.”

With the Supreme Court hearing oral arguments on the Affordable Care Act one week after the election, Graham then asked if Barrett feels she should recuse herself from the case since Trump nominated her and it’s his administration fighting to strike it down. 

Barrett said she couldn’t provide an answer “in the abstract.”

“Well, senator, recusal itself is a legal issue. There is a statute -- 28 U.S. Code 455 -- that governs when judges and justices have to recuse. There is precedent under that rule,” she said. “Justice Ginsburg in explaining the way recusal works said it is also up to the individual justice but always involves consultation with the colleagues of the other eight justices.”

Finally, asked how does it feel to be a Supreme Court nominee, Barrett noted how she has made distinct choices in her life -- like to have a big family -- but has never imposed them on others.

“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,” she said.

"I apply the law. And I think I should just say why I'm sitting in this seat with response to that question, too -- why I have agreed to be here. I don't think it's any secret to any of you or to the American people this is a really difficult some might say excruciating process. Jesse and I had a very brief amount of time to make a decision with momentous consequences with our family. Our lives would be combed over for negative details and our faith and 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? And the benefit I think is that I'm committed 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. 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 in the rule of law.

Graham posed the first question to Barrett, asking her about her judicial philosophy, giving Barrett the opportunity to share her view that the courts are not meant to right every wrong in society.

“You said you are an originalist, is that true? What does that mean in English?” he asked. 

“In English,” Barrett began, “that means that I interpret the Constitution as a law, that I interpret its text as text, and the meaning doesn't change over time and it is not up to me to update it or infuse my own policy views into it.

Asked about what she would say to people who call her a “female Scalia,” Barrett said while he was her mentor, she is not him. 

“I would say that Justice Scalia was a mentor. As I said when I accepted the president's nomination that his philosophy is mine, too. He was a very eloquent defender of originalism and it was also true of textualism, which is the way that I approach statutes and their interpretation and similarly to what I just said about originalism,” she said. 

“If I'm confirmed, you would not be getting Justice Scalia, you would be getting Justice Barrett,” she said. 

The first question and answer round in the confirmation hearings for Judge Barrett has kicked off in the Senate Judiciary Committee with Chairman Graham opening the proceedings. 

Barrett, who wore a black mask for five hours Monday, took it off at the witness table in anticipation for the rapid-fire round.

Sen. Thom Tillis, R-NC, who appeared virtually Monday due to his recent COVID-19 diagnosis, appeared in-person Tuesday with what he said was clearance from his personal physician. Tillis joins Sen. Mike Lee, R-Utah, who also recently tested positive for COVID-19, inside the hearing room.

Democrats on Monday used their opening statements to highlight the stakes of Barrett's confirmation -- which would give conservatives a 6-3 majority on the Supreme Court and potentially imperil elements of the Affordable Care Act, as a challenge to the Obama-era law is scheduled to come before the court in November. 

Republicans repeatedly returned to Barrett's Catholic faith, launching a pre-emptive strike against Democrats potentially criticizing her on the grounds of her religion.

Barrett’s family, as they did Monday, took seats in the audience.