Amy Coney Barrett Senate confirmation hearings Day 3 highlights

Sen. Dick Durbin, D-Ill., raised Barrett's dissent in a case she dealt with on the Seventh Circuit Court of Appeals, Kanter v. Barr, in which she suggested the Constitution protects the right of non-violent felons to own guns but does not protect their right to vote -- a right she wrote belongs "only to virtuous citizens."

"Here is what it boils down to," Durbin said, laying out his case. "After Heller, after the decision, after Scalia's statement, you concluded that any felony can take away your right to vote, but only a violent felony can take away your right to purchase an AK-47."

"Senator, with respect, that is distorting my position," Barrett interrupted. "What I said in the case, which is what Heller said and which is conventional in all discussions of this, to my knowledge, is that the right to vote is fundamental. However, it is an individual, fundamental right we possess, but we possess it as part of our civic responsibility for the common good."

"It is a distortion of the case that I ever said that voting is a second-class right," she added. 

Durbin pressed forward, hoping to get a new answer from Barrett, but she held her ground.

"When you finished with your dissent here’s what it came down to say, if you are guilty of a felony that is not violent, you can lose your right to vote. You can't lose your right to buy a gun. Am I wrong?" 

"Senator, Kantor had nothing to do with the right to vote. The point I was making in that passage, the 14th Amendment actually expressly allows for states to deprive felons the right to vote. And my point was there is no similar language in the Second Amendment," she began.

"I don't have an opinion and have never expressed one about the scope of a legislature’s authority to take away felon voting rights. What I said is there is a history of provisions and state constitutions and the federal Constitution, but I did not intend and if my words communicated that, this is a miscommunication. I never denigrated the right to vote," she said.

To which Durbin replied, "It was, at best, a serious miscommunication." 

In another line of questioning, Durbin pressed Barrett on why she won’t say whether a president can unilaterally delay an election and she reiterated that she won’t discuss “legal hypotheticals” whether they are "easy or hard" questions.

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.