Amy Coney Barrett grilled on Day 2 of Senate confirmation hearings

Feinstein, recalling more personal stories, this time of friends married after the landmark case on same-sex rights, Obergefell v. Hodges, pivoted her questioning to Barrett’s views on same-sex marriage. 

“Do you agree with this particular point of Justice Scalia's view that the U.S. Constitution does not afford gay people the fundamental right to marry?” she asked. 

Barrett, again, said she is not Justice Scalia but also did not give insight into her views, citing the "Ginsburg rule" -- a precedent for refusing to answer questions about issues before the Supreme Court.

“Senator Feinstein, as I said to Senator Graham at the outset, if I were confirmed you would be getting Justice Barrett, not Justice Scalia. So I don't think that anybody should assume that just because Justice Scalia decided a decision a certain way that I would, too,” Barrett began.

“Justice Ginsburg used this to describe how a nominee should comport herself at a hearing, no hints, no previews, no forecasts. That had been the practice of nominees before her but everybody calls it the Ginsburg rule because she stated it so concisely and it has been the practice of every nominee since. I'm sorry to not be able to embrace or disavow his position but I can't do that on any point of law,” Barrett said.

Feinstein replied, “that’s too bad.”

“You identify yourself with a justice that you, like him, would be a consistent vote to roll back hard-fought freedoms and protections for the LGBT community. And what I was hoping you would say is that this would be a point of difference where those freedoms would be respected. And you haven't said that,” Feinstein said. 

Barrett responded that she has “no agenda.”

“I do want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference. Like racism I think discrimination is abhorrent. On the questions of law, however, because I'm a sitting judge and because you can't answer questions without going through the judicial process, I can't give answers to those very specific questions,” she said. 

Asked earlier by Feinstein if the Constitution gives the president the authority to delay an election, Barrett said she didn't want to be a "pundit."

"If I give off the cuff answers, then I would be basically a legal pundit, and I don't think we want judges to be legal pundits," she said.

Following the Democratic line of attack from Monday, Sen. Dianne Feinstein, D-Calif., brought up emotional stories from constituents who rely on the Affordable Care Act.

“Judge Barrett, how should the loss of ACA's protection against lifetime coverage caps, caps that can be used to end coverage for life-saving care, factor into a court's consideration of the validity of the ACA?” Feinstein asked. “What is your view?”

“I think that any issue that would arise under the Affordable Care Act or any other statute should be determined by the law. By looking at the text of the statute, by looking at precedent, the same way that it would for anyone. And if there were policy differences or policy consequences, those are for this body. For the court, it's really a question of adhering to the law and going where the law leads and leaving the policy decisions up to you,” she said.

Pressed multiple times to provide more insight on her view, Barrett declined, again citing the canons of judicial conduct she said prohibit her from signaling how she would decide on a case.

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.