Amy Coney Barrett Senate confirmation hearings Day 3 highlights

Bringing up speculation that President Trump might pardon himself if he is prosecuted in cases currently being litigated in federal courts, Sen. Patrick Leahy, D-Vt., first asked Barrett if a president who refuses to comply with a court order is a threat to the Constitution.

Barrett said the Supreme Court can't control whether a president obeys its orders.

"Abraham Lincoln once disobeyed an order during the Civil War of the circuit court. A court can pronounce the law and issue judgment, but lacks control of how the political branches respond to it," Barrett began.

"Would you agree, first, that nobody is above the law? Not the president, not you, not me. Is that correct?" Leahy asked.

"I agree. No one is above the law," Barrett said. 

"And does a president have the absolute right to pardon himself for a crime?" he questioned.

Barrett declined to give a direct answer. 

"Senator Leahy, so far as I know that question has never been litigated. That question has never risen. That question may or may not arise, but it is one that calls for legal analysis of what the scope of the pardon power is. So, because it would be opining on an open question when I haven't gone through the judicial process to decide it, it is not one I can offer a view." 

Leahy said he found her answers "somewhat incompatible."

Looking to derail some of the Democrats' driving arguments, Sen. Chuck Grassley, R-Iowa, claimed that Republicans aren’t seeking to strike down preexisting conditions -- even though Republicans and the Trump administration want to strike down the Affordable Care Act that guarantees that coverage. 

"The American people deserve to be reminded of this hearing what it's all about. It's all about your qualifications to be on the Supreme Court. It's not about health care advocacy," Grassley said. 

He accused Democrats of distorting Barrett's refusal to say how she'd rule on certain cases.

"Democrats' strategy continues to be to use scare tactics, distortions, and speculation," he said. "This is all a charade just because of your comment, I believe just from one law review article you wrote critiquing Chief Justice Roberts' reasoning, referring to her raising questions in a 2017 article about the constitutional justification Roberts used to uphold the ACA. "So, it's time to get real. This is all just a distraction."

Democrats have used the hearings to raise the heat on health care, arguing it’s imperative to question Barrett on the Affordable Care Act since the Supreme Court will hear oral arguments on its fate one week after the election.

Grassley also asked Barrett if she would keep an open mind about allowing cameras inside the Supreme Court, which he supports, and she said she "certainly" would.

Sen. Dianne Feinstein, D-Calif., the committee's top Democrat, followed up on the doctrine of severability, central to the Affordable Care Act case being argued before the Supreme Court on Nov. 10, asking Barrett for her definition of it.

"The doctrine of severability as it's been described by the court, you know, serves a valuable function of trying not to undo your work when you wouldn't want a court to undo your work," Barrett said. "Severability strives to look at a statute as a whole and say: Would Congress have considered this provision so vital that -- kind of in the Jenga game, pulling it out -- Congress wouldn't want the statute anymore?"

"Insofar as it tries to effectuate what Congress would have wanted, it's the Congress and court working hand in hand," she said.

Feinstein said she was "impressed" at the response -- but when they moved along to voting rights, the senator was not satisfied with Barrett.

Feinstein raised Justice Scalia’s questioning during oral arguments in the 2013 case Shelby County V. Holder in which he questioned strong congressional support for re-enactment of the Voting Rights Act.

"Do you agree with Justice Scalia's assertion that the Voting Rights Act is a, quote, 'perpetuation of racial entitlement' end quote?" Feinstein asked.

Barrett said she can’t opine on the issue.

"Senator Feinstein, I can't -- I don't obviously know what Justice Scalia was thinking when he said that. And any characterization of the Voting Rights Act or a statement like that is simply really not something I can opine on. Because, you know, that's tied in, I would think, with the Shelby County questions,” Barrett said. 

"I'm not asking for a formal opinion. But would you believe that it's a perpetuation of racial entitlement?" Feinstein pressed. 

"Senator Feinstein, I think that goes to the question of whether the coverage formula was outdated and needed to be updated from the 1960s or not. I take that to be the thrust of the disagreement in Shelby County and the position that Justice Scalia was taking. So again, I can't express a view on Shelby County and whether the majority or dissent had the better of the argument," Barrett said.

Chairman Lindsey Graham began the hearing with a defense of Barrett’s impartiality as a judge, after Sen. Kamala Harris, D-Calif., suggested in her questioning Tuesday that Barrett’s personal views may inhibit her judicial independence. 

Graham, taking specific issue with Harris' claim that Justice Ginsburg was more forthcoming in her hearing than Barrett has been, pointed to a single example in the Seventh Circuit when Barrett upheld a legislative provision that restricted access for protesters at abortion clinic, in an attempt to show Barrett has ruled against her personal beliefs.

"So, I'm highly confident that you will judge every American based on their case, not the law of Amy," Graham said. "There's one group in America I think has had a hard time of it, and that's conservatives of color and women conservatives ...This hearing, to me, is an opportunity to not punch through a glass ceiling but reinforce a concrete barrier around conservative women. You're going to shatter that barrier."

Graham went on to say he’s never been prouder of a nominee and thanked Trump for bringing her to the table. 

"This is the first time in American history that we have nominated a woman who is unashamedly pro-life, and embraces her faith without apology, and she's going to the Court. A seat at the table is waiting on you. And it will be a great signal to all young women who want -- who share your view of the world that there's a seat at the table for them," Graham said. 

Addressing complaints from Democrats that the fate of the Affordable Care Act is at stake in a case being argued before the court shortly after the election, Graham asked Barrett to outline the doctrine of severability -- namely, that part of a law can be overturned without the entire statute being struck down.

"The main thing is the doctrine of severability has a presumption to stave the statute is possible, is that correct?" Graham asked. "That is correct."

"I want every conservative in the nation to listen. The doctrine of severability presumes and its goal is to preserve the statute if that is possible. So, from a conservative point of view, generally speaking, we want legislative bodies to make laws, not judges, is that correct?

"That is correct," Barrett said.

"Would it be further true that if you can preserve a statute, you try to, to the extent possible?, Graham continued.

"That is true," Barrett said.