Amy Coney Barrett grilled on Day 2 of Senate confirmation hearings
Here are highlights of her more than 11 hours of questioning Tuesday.
The high-stakes confirmation hearings for Judge Amy Coney Barrett continued Tuesday with the Supreme Court nominee facing questions for more than 11 hours.
Senate Republicans are keeping up their push for a final vote before Election Day despite Democratic calls to let voters decide who should pick a new justice.
Trump nominated Barrett to fill the seat left by the late Justice Ruth Bader Ginsburg.
The four days of Senate Judiciary Committee hearings are unprecedented, with some members participating virtually and in-person. Barrett is appearing at the witness table to face questions.
Hearings begin at 9 a.m. each day and will be live streamed on ABC News Live.
In opening statements Monday, Democrats argued the nomination puts the health care of millions of Americans at risk amid an ongoing pandemic and some called on Barrett to recuse herself from any presidential election-related cases. Republicans, who say they already have the votes to confirm Trump's pick, defended Barrett's Roman Catholic faith from attacks which have yet to surface from inside the hearing room.
Barrett, 48, was a law clerk to conservative Justice Antonin Scalia and follows his originalist interpretation of the Constitution. She practiced law at a Washington firm for two years before returning to her alma mater, Notre Dame Law School, to teach. She was nominated by Trump in 2017 to the Seventh U.S. Circuit Court of Appeals and confirmed by the Senate in a 55-43 vote.
Headlines:
- Barrett says 'I am not 'a liar,' would not violate judge's oath to be impartial
- Harris: "Suggest that we not pretend that we don't know how this nominee views a woman's right to choose'
- Barrett: Won't be used as a 'pawn to decide this election,' but declines to commit to recusal
- Barrett: Roe v. Wade not a universally-accepted 'super-precedent'
- Barrett on her family's reaction to George Floyd video: 'We wept together'
Hirono presses Barrett on whether she would consider 'real-life' consequences of overturning ACA
Sen. Mazie Hirono, D-Hawaii, calling Republicans "hypocritical," said, "This hearing shows the American public exactly what my Republican colleagues' priorities are, ramming through another ideologically-driven justice to the Supreme Court instead of helping the people in our country suffering during this pandemic."
Hirono then asked if Barrett will consider the “real-world impact” of striking down the Affordable Care Act, noting that she and other Democrats have told stories of their constituents who rely on the law.
"Senator, to be clear, I have the utmost empathy, the stories, you know, that you have told, including the story of Veronica's family are very moving. If I were a justice, the commitment that I would make to you and all people affected by the laws is that I would follow the law as you enacted it," Barrett said. "I would do equal justice under the law for all and not try to thwart or disrupt in any way the policy choices that you and your colleagues have adopted."
Not satisfied with her answer, Hirono pressed Barrett, who reiterated her belief that Congress sets the policy and its up to the court to interpret whether those policies are constitutional, effectively refusing to reveal how she might decide on the highly-consequential case before the court on Nov. 10.
"No case comes before a court unless it involves real live people who've had a real-live dispute, and it is the job of a judge deciding every case to take into account the real-world consequences of the parties before it," Barrett said.
"So are you aligning yourself with Justice Ginsburg in terms of what you would consider real-life impacts and the effect it would have on your decision regarding the law?" Hirono asked.
"I don't know what context -- the particular context in which Justice Ginsburg was describing that. I think what I'm trying to align myself with is the law. And I will take into account all factors, including real-world impacts, when the law makes them relevant. As it clearly does, for example, in the doctrine of stare decisis," Barrett said.
Hirono also argued Barrett’s use of the term "sexual preference" instead of "sexual orientation" -- coupled with her view that constitutionality should overtake precedent -- worry a large part of the LGBT community. Hirono called the term "outdated" and one used to claim homosexuality is a "choice."
"I don't think that you use the term sexual preference as just -- I don't think it was an accident," Hirono said. The next senator to speak, Republican Joni Ernst of Iowa, gave Barrett the opportunity to respond, and Barrett clarified she did not mean to cause offense with her prior use of term. "I certainly didn't mean, and, you know, would never mean to use a term that would cause any offense in the LGBTQ community. If I did, I greatly apologize for that. I simply meant to be referring to Obergerfeld's holding with respect to same-sex marriage," she said.
Blumenthal: Barrett involved in election-related cases would cause court 'explosive damage'
After a short break, Sen. Richard Blumenthal, D-Conn., addressing whether Barrett would participate in any cases involving the presidential election if confirmed, argued that President Trump has made it so that an appearance of bias is unavoidable.
"I continue to believe that if you were to participate in a decision involving that election, it would do enduring and explosive damage to the court," he said.
"I think you know it would be wrong. Not because of anything you've done. In fact, I am not raising the issue of whether you've done any sort of deal -- because of what Donald Trump has done."
"The president has said that he is putting you on the court as the ninth justice so you can decide the election. He's been very clear and transparent. And the American people are not dumb. They are watching and listening, and if you were to sit on this case, if it goes to this Supreme Court, the American people would lose faith and trust in the court itself," Blumenthal said.
"It would be a dagger at the heart of the court and our democracy if this election is decided by the court rather than the American voters, so I wanted to begin by making that point," he added.
Barrett explains 2006 'right to life' ad she signed at church
Sen. Josh Hawley, R-Mo., gave Barrett the opportunity to explain the "right to life" advertisement she and her husband signed in 2006 that Democrats argue shows she is a threat to Roe v. Wade.
"You said you signed it on your way out of church, if I remember correctly?" Hawley asked.
"I did," Barrett said, recalling when she signed it. "That was almost 15 years ago. There was a table set up for people on their way out of Mass to sign a statement validating their commitment to the position of the Catholic Church on life issues. The ad that was next to it. I don't recall seeing at the time and in context looking at it, looked to me like that was an ad by the St. Joseph County Right to Life group. The statement that I signed was affirming the protection of life from conception to natural death," she said.
Barrett emphasized that she signed it in her "personal capacity still as a private citizen."
"Now I am a public official, so while I was free to express my private views at that time, I don't feel like it is appropriate for me anymore because of the canons of conduct to express an affirmative view at this point in time," she said.
Barrett: Won't be used as a 'pawn to decide this election,' but declines to commit to recusal
Sen. Chris Coons, D-Del., noting what President Trump has said about needing nine justices on the Supreme Court by the November election to decide any election-related disputes, asked Barrett if she will commit to recusing herself from those cases.
"Given what President Trump said, given the rest of the context of this confirmation, will you commit to recusing yourself from any case arising from a dispute in the presidential election results three weeks from now?" Coons asked.
"Thank you for giving me the opportunity to clarify this," Barrett began. "And I want to be very clear for the record and to all members of this committee that no matter what anyone else may think or expect, I have not committed or signaled, never even written -- I've had a couple of opinions that have been around this law, but I haven't even written anything that I would think anybody could reasonably say this is how she might resolve an election dispute."
"I would consider it, and I certainly hope that all members of the committee have more confidence in my integrity then to think that I would allow myself to be used as a pawn to decide this election for the American people," Barrett continued.
"That would be on the question of actual bias, and you asked about the appearance of bias and you're right that the statute does require a justice or judge to recuse if there is an appearance of bias. And what I will commit to every member of this committee, to the rest of the Senate and to the American people is that I will consider all factors that are relevant to that question that requires recusal when there's an appearance of bias," she said.
Barrett went on to say she would discuss that with the other justices were a dispute to arise.
"Justice Ginsburg said it is always done with consultation of the other justices. So, I promise you that if I were confirmed and if an election dispute arises, both of which are if, that I would very seriously undertake that process and consider every relevant factor. I can't commit to you right now for reasons that we've talked about before, but I do ensure you of my integrity and that I would take that question very seriously," she said.
Barrett won’t say whether she agrees with Scalia that Roe was wrongly decided
Ranking member Sen. Dianne Feinstein, D-Calif., focused squarely on the future of the landmark abortion cases -- Roe v. Wade and Planned Parenthood v. Casey -- recalling a time when abortion was not legal in the U.S. and she says she saw young women hurt themselves trying to seek care elsewhere as a result.
“Do you agree with Justice Scalia's view that Roe was wrongly decided?” Feinstein asked.
Barrett declined to answer specifically, citing precedent to not share how one would decide on a case as a sitting judge.
Barrett declines to answer: “If I express a view on a precedent … it signals to litigants that I might tilt one way or another in a pending case.”
“I'll invoke Justice Kagan's description in her confirmation hearing. She said she wouldn't grade precedent or give it a thumbs up or thumbs down. In an area where precedent continues to be pressed and litigated -- as is true of Casey -- it would be particularly -- it would be wrong and a violation of the cannons for me to do that as sitting judge,” Barrett said. “So if I express a view on the precedent one way another whether I say or love it or hate it, it signals to litigants I might tilt one way or another in a pending case.”
Feinstein, saying she was "distressed not to get a straight answer," tried again. “Do you agree with Justice Scalia's view that Roe can and should be overturned by the Supreme Court?”
Barrett provided the same non-answer.
“Because, you know, that's a case that is litigated. It could -- its contours could come up again. They came up last term before the court. So, I think what the Casey standard is and that's just a contentious issue which is one reason why it would be comforting for you to have an answer but I can't express views on cases or pre-commit to approaching a case any particular way,” she said.
Feinstein said Barrett’s answer would make it difficult for women on the committee to support her.