Amy Coney Barrett grilled on Day 2 of Senate confirmation hearings

Sen. Chuck Grassley, R-Iowa, used his time to slam Democrats for what he called “painting the judge as heartless and on a mission to scrap the health care law.”

“Apparently her concerns in Roberts' ruling in the Obama decision disqualifies her,” Grassley said, referring to his deciding vote to uphold the Affordable Care Act. He then launched into a defense into one of her writings from 2017.

In an essay published by a journal of Notre Dame Law School, Barrett argued that Chief Justice Roberts, who wrote the majority opinion, “pushed the Affordable Care Act beyond its plausible meaning to save the statute” -- a writing Democrats are likely to seize on.

Grassley asked Barrett directly if she has a “goal” of appealing the Affordable Care Act and whether Trump told her to plan on it. 

"Absolutely not," Barrett said. "If I had been, that would have been a short conversation."

Grassley also questioned Barrett on her dissent of a case involving The First Step Act, a bipartisan criminal justice bill passed by Congress and signed by Trump in Dec. 2018.

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.