Amy Coney Barrett Senate confirmation hearings Day 3 highlights

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.

Graham announced the Senate Judiciary Committee is in recess until 12:30 p.m.

Sen. Amy Klobuchar, D-Minn., is up next to question Barrett.

Sen. Ted Cruz, R-Texas, slammed Democrats at the top of his questioning for their lack of physical presence in the room and said it signals they have no “substantive criticisms” against the “respected scholar.” 

“First of all, the last three days of hearings have revealed good news. They have revealed the news that Judge Barrett is going to be confirmed by this committee, by the full Senate,” Cruz said. “Two full days of questions, we have seen that our Democratic colleagues have very few questions actually to raise about Judge Barrett's qualifications, very little of the time we have spent in here has concerned her record.”

Instead, he said, Democrats have made the hearing a political attack against the president and “largely abandoned” making any case against Barrett.

“It is striking, as we sit here right now in this committee room, there are only two Democratic senators in the room. If you look at the dias, there’s chair after chair after chair that is empty. Democratic senators are no longer even attending. I assume they will show up for their time. But it is indicative of what they are tacitly admitting, that they don’t have substantive criticisms,” Cruz said.

Sen. Dick Durbin, D-Ill., then interrupted. 

"Mr. Chairman, may I make a point of personal privilege?” Durbin asked Graham. 

“Of course,” Cruz said with a smile. “Of course, as you may”

“We are in the midst of a COVID-19 crisis, a pandemic. And some members are in their offices following this on television and to suggest their absence here means they are not following or participating is incorrect,” Durbin said.

Sen. Kamala Harris, D-Calif., and Sen. Patrick Leahy, D-Vt., are the two committee members of 22 who opted to particate virtually.