Amy Coney Barrett Senate confirmation hearings Day 3 highlights

In a testy line of questioning on protections for LGBT Americans, Sen. Richard Blumenthal, D-Conn., pressed Barrett to say whether she agreed that Obergefell v. Hodges, which legalized same-sex marriage, was a sound decision.

While Barrett would say Brown v. Board of Education, which deemed segregation in public schools unconstitutional, and Loving v. Virginia, which did the same for laws banning interracial marriage, were clearly-established precedents, she wouldn’t explicitly say the same about Obergefell.

"Your honor, think of how you would feel as a gay or lesbian American to feel that you cannot answer whether the government can make it a crime for them to have that relationship, whether the government can allow people who are happily married to be overturned," Blumenthal said.

"Well, you are suggesting that I am going to overturn, and you are pushing me to violate the cannons of ethics, and I will not do that,” Barrett interjected, repeating that she should not suggest agreement or disagreement with precedents of the Supreme Court.

Blumenthal said, in turn, Americans have the right to know her legal positions on the cases he presented. 

"I am surprised and I think that a lot of Americans will be scared that the people they want to marry could have marriage equality cut back and in an America where I would not want to live," he said. 

"Well, senator to suggest that is the kind of America that I want to create is not based in any facts of my record and that quote that you read to me from the article talked about it being par for the course for those questions to be asked, but it did not say about whether it is appropriate for the nominees to answer it," Barrett replied.

On Tuesday, Barrett apologized to the LGBT community for using the term "sexual preference" instead of "sexual orientation."

Sen. Josh Hawley, R-Mo., said he wanted to put a "finer point" on something said earlier by Sen. Ben Sasse, R-Neb. -- a point also made by Chairman Graham. 

"I want to agree with the chairman that I think there's nothing wrong with confirming to the Supreme Court of the United States a devout Catholic, pro-life Christian. And it would be my privilege to vote for you," Hawley said. 

On each occasion, Barrett did not object the description of her as anti-abortion.

In a lighter moment, then Sen. Richard Blumenthal, D-Conn., took over for his line of questioning and said he hopes Barrett got some rest since the long day Tuesday.

"I did have a glass of wine," Barrett offered. "I'll tell you that I needed that, at the end of the day."

"Well, let me just say on that kind of point you have a right to remain silent," Blumenthal joked. 

A problem with Barrett’s microphone brought the briefing to a 15-minute recess around 2 p.m.

As she has done many times during these hearings, Barrett drew a distinction between the late Justice Scalia and a "Justice Barrett," despite their sharing an originalist approach to the Constitution and Scalia having been her mentor. 

"I hope that you aren't suggesting that I don't have my own mind or that I couldn't think independently or that I would just decide like -- 'let me see what Justice Scalia said about this in the past' -- because I assure you I have my own mind," Barrett pointedly told Sen. Chris Coons, D-Del. "I share his philosophy, but I have never said that I would always reach the same outcome as he did."

Still, Coons dug into the major conservative shift Barrett would bring to the court and used visual aids to display some of her past writings he argued indicate she would help a new majority overturn landmark cases.

Referring to Scalia's strongly-put contrarian views, Coons said his "memorable dissents may make for great academic reading, but I think most Americans don't expect them to become the law of the land."

"My core concern here, your honor, is that your confirmation may launch a new chapter of conservative judicial activism unlike anything we've seen in decades. And the point of the chart was to just show we've mostly been talking about the Affordable Care Act and privacy-related cases, but if that's true, it could touch virtually every aspect of modern American life," Coons continued.

"I pray that I'm wrong. I hope that I am. But in my reading of your work, nothing has alleviated my grave concerns that rather than building on Justice Ginsburg's legacy of privacy, I'm concerned you will take the court in a very different direction," he said. "So, with all due respect, I will be voting against your confirmation."

Continuing the back and forth about the doctrine of severability, Sen. Amy Klobuchar, D-Minn., said she wanted to make clear to the American people it is the position of the Trump administration that the entire Affordable Care Act should be thrown out, not just part of it as Republicans have suggested.

"Health care is on the line. Judge, that's what is on the line in your nomination hearing, which unfortunately has been plopped in the middle of this election," Klobuchar said. "This is a position of the Trump administration filed by the Trump Justice Department. It says that the entire Affordable Care Act must fall."

"If the brief didn't represent the president, he would have them withdraw the brief. Is that right?" Klobuchar asked.

"I believe so, yes," Barrett said. 

“I wanted to make that clear to the Chairman, there is this doctrine to separate and try to uphold the statute like maybe pre-existing conditions or keeping kids on your insurance. The position of the Trump administration is to throw the whole thing out," Klobuchar said. 

Klobuchar then pressed Barrett on a claim she made Tuesday, when she said she wasn’t aware of Trump’s position to nominate justices that would strike down the Affordable Care Act -- before her Supreme Court nomination. 

"There have literally been hundreds of statements by him, by my colleagues, and I just find it hard to understand that you are not aware of the president's statements," Klobuchar said.  

"I took Senator Harris's question yesterday to be referring to a specific tweet, maybe the one that you have behind you, about how he wanted to put a justice on the court to replace Obamacare. And I'm definitely aware of that tweet now. And as I said to Senator Harris yesterday, it came up in some of my calls with Democratic senators that brought it up, but I honestly can't remember whether I knew about it before I was nominated or not,” Barrett said. 

Klobuchar continued to press Barrett on the timeline of her public criticism of the court upholding the Affordable Care Act in relation to her nomination by Trump to federal court in 2017.

Barrett wrote in law review article published in January 2017 that Chief Justice John Roberts "pushed the Affordable Care Act beyond its plausible meaning to save the statute." She was nominated by Trump to become a judge in May of that year.br/>
"Senator Klobuchar, all of these questions suggest I have animus or that I cut a deal with the president. That isn't what happened," Barrett said. 

"My question is simply, were you aware of President Trump's opposition at that time?" Klobuchar asked Barrett of when she wrote the article. 

"I have no idea. I suspect if it was published in January, I wrote it before the presidential election. I express I have no amimus or agenda to the Affordable Care Act. You are suggesting that this was an open letter to President Trump. It was not," she said.