Washington — Judge Amy Coney Barrett returned Wednesday to the Senate Judiciary Committee for the second day of questioning in her Supreme Court confirmation hearings. The second round of questioning lasted around nine hours, and was significantly shorter than the marathon nearly 12-hour day of questioning on Tuesday.
Each of the 22 senators on the committee were allotted 20 minutes to pose their questions, rather than the 30 minutes they had on Tuesday. Democrats have pressed Barrett to explain her views on challenges to the Affordable Care Act, Roe v. Wade and the upcoming election, should the Supreme Court have to weigh in.
Barrett has refused to indicate how she might judge cases that come before the high court, a time-honored tactic that has been deployed by Supreme Court nominees of both parties. She has been careful to say that declining to answer "doesn't suggest disagreement or agreement" with how a ruling was made.
Democrats pushed Barrett on how closely her jurisprudence would follow that of her mentor, Justice Antonin Scalia, since Barrett has said they share the same judicial philosophy. She reiterated that while both believe in the theory of originalism, interpreting the Constitution based on the Founders' intentions, she would not necessarily decide cases in the same manner.
"I assure you I have my own mind. Everything that he said is not necessarily what I would agree with or what I would do if I was Justice Barrett," Barrett said of Scalia.
Barrett also declined to directly answer questions on hot-button topics, such as whether the president could unilaterally deny the right to vote, whether racial discrimination existed in voting, or whether climate change existed.
Graham concludes second day of questioning
Senate Judiciary Committee Chairman Lindsey Graham wrapped up the second day of questioning shortly before 6 p.m. The committee then convened in private to review Barrett's FBI background check, which is a typical procedure.
Graham thanked Barrett and her family for appearing and, referencing an earlier remark by Barrett about having a glass of wine last night after the grueling first day of questioning, quipped,
"The hearing part is over. You can have two glasses of wine tonight if you like."
Democratic Senator Dick Durbin also thanked Barrett for her presence, and offered sympathy for any pain she and her family has felt throughout the process.
"I'm sorry," he said. "I hope that I was not the cause, and we were not the cause. They are innocent victims and they should not have to go through this."
The committee will reconvene tomorrow for a final day of hearings which will involve testimony from outside witnesses about Barrett's fitness. There will be eight witnesses, four chosen by Republicans and four by Democrats. Two representatives from the American Bar Association are also testifying. The group rated Barrett "well qualified" earlier this week.
Harris presses Barrett on climate change
Harris asked Barrett, given her lack of firm views on climate change, whether she'd consider science in cases related to the environment. Barrett replied that she would "defer when the law requires me to defer."
Harris then asked if she believed COVID-19 was infectious, and if smoking caused cancer. Barrett answered "yes" to both questions. Harris then asked if Barrett believed climate change exists.
"You have asked me a series of questions that are uncontroversial...and then trying to analogize that to eliciting an opinion from me that is on a very contentious matter of public debate," Barrett said.
that climate change exists and that it is caused by humans, but there are political disagreements about addressing it. Harris then said that she believed Barrett's nomination presented a threat.
"Let us not pretend that we don't know what consequences rushing this confirmation will have," Harris said.
Barrett tells Harris "racial discrimination still exists in the United States"
Harris, appearing remotely, opened her 20 minutes of questioning by focusing on the Voting Rights Act, noting it was "not an inevitable triumph," and remarking on the barriers erected by states to deny Black Americans the right to vote. She also recalled walking across the Edmund Pettus Bridge with the late Congressman John Lewis, a Democrat from Georgia.
Harris raised the 2013 case Shelby County v. Holder, which gutted a key provision of the landmark civil rights law, and cited several states — predominantly in the South — that have implemented changes to their voting procedures in the wake of the Supreme Court's 5-4 decision, including the closure of polling places and efforts to remove voters from the rolls.
The California senator asked Barrett whether she agrees with Chief Justice John Roberts' assertion that voting discrimination still exists.
"I will not comment on what any justice said in an opinion, whether an opinion is right or wrong or endorse that proposition," Barrett said, adding she would not "endorse the majority or the dissent in Shelby County."
The judge did say she believes "racial discrimination still exists in the United States, and I think we've seen evidence of that this summer."
"I'm not going to express an opinion because these are very charged issues," Barrett said. "They have been litigated in the courts so I will not engage on that question."
Barrett reiterates that she has not made any commitments to Trump administration
GOP Senator Mike Crapo asked Barrett whether the president or anyone at the White House had spoken to her about controversial cases such as Roe v. Wade and Obergefell v. Hodges.
"I made no commitments on any of these cases or on any case," Barrett said, reiterating what she said on Tuesday about not making any "pre-commitments" to the White House.
Crapo also asked Barrett whether she believed anyone was above the law, following Democrats' questions about whether the president could pardon himself.
"No one is above the law in the United States," she said.
Barrett doesn't give opinion on separating children from parents at the border
Democratic Senator Cory Booker, who focused many of his questions Tuesday on human rights issues, began Wednesday by asking Barrett about her opinion on separating the children of migrants from their parents at the border.
"That's been a matter of policy debate, and obviously that's a matter of hot political debate, in which I can't express a view or be drawn into as a judge," Barrett replied.
Booker asked for her personal views on the practice, which was harshly criticized and ultimately reversed by the Trump administration. Barrett again declined to respond directly, reiterating that it's currently part of the political debate.
The New Jersey senator also asked Barrett if she had researched racial disparities in the judiciary system. Barrett said that she had not specifically done so but had engaged in discussions on the issue during her time as a Notre Dame University law professor.
Disagreeing with nominee's judicial philosophy is "perfectly admissible grounds for voting no"
Asked by Republican Senator Joni Ernst of Iowa about claims she is not an adequate replacement for Justice Ruth Bader Ginsburg because they hold differing judicial philosophies, Barrett acknowledged that some senators may be inclined to oppose her nomination because they don't agree with originalism and textualism.
"Disagreeing with the judicial philosophy that I or any nominee had is perfectly admissible grounds for voting no, because you might have a different vision for what a justice or a judge is to do," she said. "I have no problem with that."
But Barrett said there should be diversity of judicial philosophies on the Supreme Court, as approaches to interpreting the Constitution and statutes "are not designed to yield particular results."
"There's room for different approaches to the Constitution, and I think those approaches should not be broken down into partisan boxes because judges are not partisan," she said. "They do get appointed and confirmed by the political branches, but judges don't have campaign platforms."
Barrett says her children were a reason to accept Supreme Court nomination — or reject it
Barrett spoke again about the "excruciating" confirmation process and the considerations involved in her decision to accept Mr. Trump's offer to nominate her to the Supreme Court.
"For me to say I'm not willing to undertake it even though I think this is something important would be a little cowardly, and I wouldn't be answering a call to serve my country in a way that I was asked," Barrett told Tillis.
The judge revealed her young son Liam "got very upset" during Tuesday's questioning. Barrett said the impact her confirmation process would have on her family weighed on whether to go through with it.
"Senator Kennedy referenced some of the other things that have happened to the children in the process, and I said to you before any of that happened that in many ways the children are the reason not to do it, but they're also the reason to do it," she said, "because if we are to protect our institutions and protect the freedoms and protect the rule of law that is the basis for the society and freedom that we all enjoy, if we want that for our children and our children's children, then we need to participate in that work."
Technical problems disrupt hearing
On two occasions as Wednesday's hearing stretched into the afternoon, the committee was forced to take a recess after microphones for both the senators and Barrett stopped working.
The first sign of trouble occurred just before 2 p.m., when Democratic Senator Richard Blumenthal began his 20-minute round of questions. When it was clear neither he nor Barrett were audible to those outside the committee room, the panel took a break for roughly 40 minutes as a technician worked to fix the issue.
The committee resumed at 2:40 p.m., and Blumenthal continued his questions. But then, as he concluded and Senator Thom Tillis of North Carolina began, technical problems began again.
"Are we not paying the bills?" Graham joked.
The panel again took a brief break to address the audio problems and resumed after about 10 minutes.
"We can press on," Graham said.
Barrett declines to give her views on climate change causes
Democratic Senator Richard Blumenthal asked Barrett about her views on climate change, after Barrett told GOP Senator John Kennedy last night that she didn't have "firm views" on the topic.
Barrett reiterated to Blumenthal on Wednesday that she was "not a scientist," and said that she didn't believe her views were relevant to how she would act on the high court.
"I don't think I am competent to opine on what causes global warming or not," Barrett said. "I don't think that my views on global warming or climate change are relevant to the job I would do as a justice."
Hawley says Democrats are engaged in an "attempted Borking" of Barrett
Senator Josh Hawley, a Republican from Missouri, invoked the 1987 failed nomination of Judge Robert Bork to the Supreme Court to characterize Democrats' opposition to Barrett's appointment to the Supreme Court.
"The legacy of the Bork hearings continues to reverberate. His name has become a verb, the Borking of nominees," Hawley said. "I think what we've seen today is an attempted borking of Judge Amy Barrett."
"The problem is they don't have anything in your record that they can use to so badly misconstrue to suggest you're going to fundamentally change America that now they have to attribute to you the worst readings and most draconian misinterpretation of Justice Scalia," he continued.
Bork was nominated to the Supreme Court by President Ronald Reagan, and his selection set off a fierce political battle over his confirmation, the effects of which are still being felt today. The Senate rejected Bork's nomination by a vote of 42 to 58.
Barrett differentiates herself from Scalia, saying "I have my own mind"
Democratic Senator Chris Coons asked Barrett how closely she would follow the judicial philosophy of Justice Antonin Scalia, who dissented in cases upholding the ACA and legalizing same-sex marriage. Barrett has previously said that she shares Scalia's philosophy in terms of originalism and textualism, but that she would not necessarily rule in the same way as Scalia.
"I assure you I have my own mind. Everything that he said is not necessarily what I would agree with or what I would do if I was Justice Barrett," Barrett said. She also echoed previous comments by Chief Justice John Roberts that there are no Republican or Democratic judges.
"I think there are just judges," Barrett said. "Judges don't have policy platforms, but it is certainly the case that judges have different approaches to interpreting the text."
Coons also asked Barrett about her approach to established precedent. He asked her whether she believed the 1965 case Griswold v. Connecticut, which established the right to privacy and served as the basis for Roe v. Wade, was correctly decided. Barrett did not directly answer, but said she believed that Griswold is "very, very, very, very, very unlikely to go anywhere."
Klobuchar asks if it's a "coincidence" Barrett and 2 other justices worked on Bush v. Gore
Minnesota Senator Amy Klobuchar, a Democrat, raised Barrett's work as a young lawyer for the Republican side in Bush v. Gore in 2000, suggesting she was deliberately being put on the court in the event the justices take up election-related disputes stemming from the 2020 presidential race.
"If you are confirmed, the Supreme Court will have not one, not two, but three justices — you, Justice Kavanaugh and Chief Justice Roberts — who worked on behalf of the Republican Party in matters related to the Bush v. Gore case," Klobuchar said. " Do you think that that's a coincidence?"
Mr. Trump has said the Supreme Court vacancy should be filled before the November 3 election in the event the high court is tasked with deciding the outcome, as it did in 2000 with Bush v. Gore.
"If you're asking me whether I was nominated for this seat because I worked on Bush v. Gore for a period of time as a young associate, that doesn't make sense to me," Barrett responded.
"Such a coincidence to me," Klobuchar said. "I think the public has a right to know that now three of these justices have worked on the Republican side on a major, major issue related to a presidential election."
Klobuchar also asked Barrett whether she had ever voted by mail, though the judge said she could not recall.
Klobuchar says Barrett will be the "deciding vote" in several cases
Democratic Senator Amy Klobuchar said that Barrett will be the "deciding vote" in several cases, implying that Chief Justice John Roberts may side with the four liberal justices on the court on certain issues. Roberts has previously voted to uphold the Affordable Care Act.
"You will be the deciding vote in many cases that will affect people's lives," Klobuchar said. "You will have the polar opposite judicial philosophy of Justice Ginsburg."
Klobuchar asked Barrett if she was aware that Mr. Trump had made appointing a justice who would overturn the ACA a campaign promise ahead of his election.
"I am aware that the president opposes the Affordable Care Act," Barrett said, adding that she was "definitely aware" of a 2015 tweet that has been cited several times, in which Mr. Trump promised to appoint a justice to "do the right thing" on the ACA. However, she added that she "honestly can't remember whether I knew about it before I was nominated or not."
Barrett appeared to express some frustration with Klobuchar's line of questioning.
"All these questions, you're suggesting that I have animus or that I cut a deal with the president, and I was very clear yesterday that is not what happened," Barrett said. She also said that an article she wrote published in 2017 criticizing Roberts' legal position in a case upholding the ACA was not an "open letter" to the president.
Senators acknowledge that Barrett is likely to be confirmed
Although Barrett must sit through one more day of confirmation hearings, her eventual confirmation to the Supreme Court is all but a foregone conclusion. Republicans hold the majority in the Senate, and there is very little Democrats can do to block her confirmation. Democratic Senator Sheldon Whitehouse acknowledged in his questioning that Barrett was likely to be confirmed to the Supreme Court.
Senator Ted Cruz began his questioning by saying that the day's questioning had shown that "Judge Barrett is going to be confirmed by this committee and by the full Senate."
Cruz also criticized his Democratic colleagues for not sitting through the hearing. Senator Dick Durbin interrupted, using a "point of personal privilege" to note that many Democrats were watching the hearings remotely due to the coronavirus pandemic. Cruz himself had self-quarantined due to exposure to COVID-19 and only returned to Congress in person yesterday. He noted that several absent Democratic members had been present for Tuesday's proceedings.
Whitehouse says conservative groups using Supreme Court to accomplish policy goals
Democratic Senator Sheldon Whitehouse of Rhode Island used the 2018 case Janus v. AFSCME, involving fees from non-union members to public-sector unions, to demonstrate the ties between conservative organizations and what he said were their efforts to use the Supreme Court to further their policy goals.
He discussed the overlaps in organizations involved in the Janus fight and the earlier Friedrichs v. CTA, in which the Supreme Court deadlocked 4-4 in 2016 after Scalia's death. Friedrichs v. CTA raised the same issue as Janus.
"I've got a feeling that the lawyers going into the United States Supreme Court in that Janus case, looking at this array of commonly funded anti-union front groups assembled against them as amici, having seen what Friedrichs portended, having been signaled by Alito in those earlier cases that they wanted to get rid of Abood, that they were on the hunt for Abood, that's a feeling that no lawyer should have in America," Whitehouse said.
The Supreme Court overturned Abood v. Detroit Board of Education in the Janus case.
Whitehouse added that he hopes Barrett and the Supreme Court conduct themselves so that "no lawyer goes into an argument in the United State Supreme Court feeling that the case is set against them, and there is nothing to be done other than go in and take your medicine."
Barrett said she was unaware of the ties between organizations, including those that file amicus briefs with the Supreme Court in cases that raise politically charged issues. In a slip of the tongue, she vowed to approach "every case with an open wine — open mind."
"I think judges should not have pet projects and they should not have campaigns. They should decide cases," she said.
Barrett on ACA: Judges "shouldn't be trying to undermine the policy that Congress enacted"
Barrett, under questioning from Durbin, said there are two points on which they agree.
"Judicial activism is bad from either side," she said, "and no matter what somebody's policy preferences are about the ACA, I completely agree with you they shouldn't be trying to undermine the policy that Congress enacted. You and I agree on that, and I embrace that view of a judge's role wholeheartedly."
Barrett doesn't say whether a president could unilaterally bar certain people from voting
Democratic Senator Dick Durbin questioned Barrett on whether it would be constitutional for the president to unilaterally delay the election. It is, in fact, unconstitutional, as the date of the election is set by Congress under the Constitution. Barrett repeated what she told Democratic Senator Dianne Feinstein yesterday, that she can't weigh in on hypotheticals.
Durbin then asked Barrett whether the president could unilaterally deny the right to vote based on race or gender. Barrett did not directly answer, but just said the 14th and 15th Amendment would not allow this.
"That strains originalism," Durbin said about Barrett's reasoning, as the 15th and 19th Amendments explicitly state that the right to vote cannot be denied on the basis of race or sex. She replied that "it would strain the canons of conduct" if she were to weigh in on a hypothetical about a president attempting to unilaterally bar some people from voting.
Judiciary Committee announces more witnesses for Thursday's hearing
Graham announced an additional six witnesses who will appear before the committee Thursday for the final day of Barrett's confirmation hearings.
The additional witnesses are:
- Randall D. Noel, chair of the American Bar Association's Standing Committee on the Federal Judiciary
- Pamela J. Roberts, member of the American Bar Association's Standing Committee on the Federal Judiciary
- Retired Judge Thomas Griffith of the U.S. Court of Appeals for the D.C. Circuit
- Saikrishna Prakash, a professor at the University of Virginia Law School
- Amanda Rauh-Bieri, who clerked for Barrett on the 7th Circuit
- Laura Wolk, the first blind woman to clerk at the Supreme Court and a former student of Barrett's at Notre Dame Law School
Barrett says court can't force a president to follow its orders
Democratic Senator Patrick Leahy asked Barrett whether she believed it would present a threat to the Constitution if a president ignored the ruling of the Supreme Court. Barrett did not answer directly, but noted that the court could not force a president to follow its orders.
"As a matter of law, the Supreme Court may have the final word, but the Supreme Court lacks control over what happens after that," Barrett said. She gave the example of Brown v. Board of Education. Although the court ordered that segregation was unconstitutional, the National Guard had to be sent to a high school in Little Rock, Arkansas, to enforce it.
"The Supreme Court can't control whether or not a president obeys," Barrett continued.
Barrett declined to say whether she believed a president could pardon himself, as President Trump has suggested.
Barrett says she would "keep an open mind" about cameras in the Supreme Court
Barrett signaled that she would be willing to support allowing cameras in the Supreme Court. The court has long resisted allowing cameras to broadcast oral arguments live, but has recently begun livestreaming audio of remote proceedings during the pandemic.
GOP Senator Chuck Grassley asked Barrett if she would be willing to consider allowing cameras into the court.
"Many of us believe that allowing cameras in the courtroom would open the courts to the public and bring a better understanding of the judiciary," Grassley said. Grassley, who is 87, worried that he "won't live long enough to see" cameras in the courtroom.
"I would certainly keep an open mind about cameras in the Supreme Court," Barrett replied.
The court itself prohibits cameras in the courtroom during oral arguments. Various congressional efforts to require the court to broadcast proceedings have been pursued over the years, with none succeeding. Several lower courts do allow cameras, including the 7th Circuit Court of Appeals, where Barrett is currently a judge.
Democratic Senator Patrick Leahy, who spoke next, began his round of questioning by signaling his agreement with Grassley on the importance of introducing cameras into the court.
"I agree with him on that," Leahy said.
Barrett says Voting Rights Act is a "triumph in the civil rights movement"
Pressed by Feinstein about whether she shares the views of the late Justice Antonin Scalia on the Voting Rights Act of 1965, Barrett called it a "triumph in the civil rights movement" and reiterated that she would not be a carbon copy of the late justice.
"When I said that Justice Scalia's philosophy is mine too, I certainly didn't mean to say that every sentence that came out of Justice Scalia's mouth or every sentence that he wrote is one that I would agree with," she said, adding that she would, however, approach cases in the same manner he did.
Barrett declined, however, to say whether she agrees with Scalia's characterization of the landmark civil rights law as a "perpetuation of racial entitlement."
"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 that I can opine on because that's tied in with these Shelby County questions," she said.
In Shelby County v. Holder, the Supreme Court gutted a central provision of the Voting Rights Act that required jurisdictions with a history of race-based voter discrimination to receive approval from the federal government before making changes to their voting procedures and laws.
Feinstein announces Democratic witnesses for final day of confirmation hearing
Senator Dianne Feinstein, the top Democrat on the Judiciary Committee, announced the four outside witnesses who will testify at the invitation of Democrats on Thursday, the fourth and final day of Barrett's confirmation hearing.
The witnesses are:
- Stacy Staggs, a mother of twins with pre-existing health conditions who will testify on importance of the Affordable Care Act.
- Dr. Farhan Bhatti, a family physician who will testify on the impact to patients if the Supreme Court overturns the ACA.
- Crystal Good, who will testify on reproductive rights.
- Kristen Clarke, the president of the Lawyers' Committee for Civil Rights Under Law, who will testify about voting rights.
Graham convenes third day of confirmation hearing with praise for Barrett
Chairman Lindsey Graham began the third day of Barrett's confirmation hearing at 9:01 a.m. and offered glowing remarks about Barrett, praising her for not cowering when pressed about her personal views on abortion and her faith.
"I'm highly confident that you would judge every American based on their case, not the law of Amy," he said. "This hearing to me is an opportunity to not punch through a glass ceiling, but a reinforced concrete barrier around conservative women. You're going to shatter that barrier."
Graham rejected claims from Senator Kamala Harris that Barrett has not been forthcoming in her answers, saying instead she has offered a more complete look at her judicial philosophy than either Justices Sonia Sotomayor and Elena Kagan did during their respective confirmation hearings. Sotomayor and Kagan were nominated to the high court by President Barack Obama, and Graham voted to confirm both.
Graham said he has "never been more proud of a nominee than I am of you."
"This is history being made, folks," he said. "This is the first time in American history that we have nominated a woman who is unashamedly pro-life and embraces her faith without apology, and she's going to the court. A seat at the table is waiting on you."
Democrats grill Barrett on first day of questioning
On Tuesday, the second day of her confirmation hearings, Barrett insisted she didn't have any agenda against key issues like health care or abortion. Democratic senators are expected to continue their intensive questioning Wednesday:
How to watch Amy Coney Barrett's Senate hearing
- What: Day 3 of Senate Judiciary Committee hearings on the nomination of Amy Coney Barrett to the Supreme Court
- Date: Wednesday, October 14
- Time: 9 a.m. ET
- Location: Capitol Hill
- Online stream: Live on CBSN — in the player above and on your mobile or streaming device
- CBSN coverage: Preshow coverage begins at 8:30 a.m. ET
Barrett: "I'm not a mission to destroy the Affordable Care Act"
In a lengthy exchange on Tuesday with Senator Chris Coons, a Democrat from Delaware, Barrett was asked about a law review article she wrote in 2017 when she was a law professor at Notre Dame.
In the article, Barrett wrote that Chief Justice John Roberts, who sided with the court's liberal wing to uphold the constitutionality of the Affordable Care Act in 2012, "has not proven himself to be a textualist in matters of statutory interpretation." She argued Roberts "pushed the Affordable Care Act
beyond its plausible meaning to save the statute" in the 2012 case, known as NFIB v. Sebelius.
Coons said the article showed Barrett would have voted to strike down the law, and might do so when the court considers another case concerning the ACA next month. Barrett said she "did express a critique" but said it would have no bearing on her judgment in the upcoming case.
"I guess I'm a little uncertain what it indicates, because as I've said, I have no hostility to the ACA. If a case came up before me, presenting a different question to the ACA, I would approach it with no bias or hostility," she said.
She added that "the exercise of being a commentator or an academic is much different than the exercise of judging, and I didn't have to sit in Chief Justice Roberts' seat or Justice Scalia's seat with NFIB v. Sebelius was decided."
"But you will, if we follow the timeline laid out by my colleagues. You will sit in former Justice Ginsburg's seat," Coons countered. "And you will sit as a member of the court deciding a case that is very similar to a previous one."
"I'm standing before the committee today saying that I have the integrity to act consistently with my oath and apply the law as the law. To approach the ACA and every other statute without bias, and I have not made any commitments or deals or anything like that," she said soon after. "I'm not here on a mission to destroy the Affordable Care Act. I'm just here to apply the law and adhere to the rule of law."
Barrett discusses peaceful transfer of power
On Tuesday, New Jersey Senator Cory Booker asked questions directly related to President Trump, regarding his hesitance to condemn white supremacy and his refusal to commit to a peaceful transfer of power. Although Barrett emphatically said "yes" when asked if she condemns white supremacy, she initially declined to say whether a president should commit to a peaceful transfer of power.
"That seems to me to be pulling me into the question of whether the president has said he would not leave office," Barrett said. "To the extent that this is a political controversy right now, as a judge, I want to stay out of it."
But when pressed, Barrett said that she believed the peaceful transfer of power between presidents is a critical part of the functioning of the country.
"One of the beauties of America from the beginning of the republic is that we have had peaceful transfers of power," she said. "I think it is part of the genius of our Constitution and the good faith and good will of our people."
Barrett also declined to say whether the president could pardon himself. But she reiterated that "I don't take orders from the executive branch and the legislative branch."
Booker asked Barrett if she could empathize with people who have concerns about her nomination, and that she would overturn the ACA.
"I can certainly empathize with people who are struggling. I can empathize with people who lack health care," Barrett. She reiterated that, with regard to the ACA, "I will hear all the arguments on both sides."