Amy Coney Barrett Senate confirmation hearings Day 3 highlights

Sen. John Cornyn, R-Texas, in a series of leading questions aimed at addressing any concerns about Barrett's judicial independence, gave her another opportunity to explain why she was choosing not to answer questions that may reveal how she would decide a future case, a response she and other nominees have called the "Ginsburg rule."

"I know you follow the same rule as Justice Ruth Bader Ginsburg and not expressing opinions on cases that might come before the court," Cornyn said. "Is there another practical reason you won't rule in the future because you don't know the facts of the case or the issues of controversy might be? How can you sit here and tell us what your policy would be without knowing all of that?" 

"I couldn't, and I think what Justice Ginsburg said, it would show disregard for the process and litigants. What she was getting at is she would signal all of the briefs you file in the case, doesn't matter because judges have a gut reaction. They know what they think and this is all just going through the motions. That's not how the judicial process should work or does work," Barrett said. 

"There is no reason to believe the judge's gut reaction is better than any other American citizen reaction?" Cornyn asked. 

"No," Barrett said. "A judge needs to have an open mind every step of the way. As I said, I've changed my mind at oral arguments after reading the briefs. I’ve changed my mind after consulting colleagues. If I say how I would resolve the case because I saw the issue, it is short circuiting the process because it would go against an open mind."

CALLOUT=MORE: Key takeaways from 1st day of Amy Coney Barrett's Supreme Court nomination hearing

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.