Washington — During her first day of questioning before the Senate Judiciary Committee, Democrats pushed Supreme Court nominee Amy Coney Barrett on hot-button issues that included challenges to the Affordable Care Act, Roe v. Wade and even the upcoming election, should the Supreme Court have to weigh in. But Barrett stood firm on her refusal to indicate how she might judge cases that come before the high court.
"I have no mission and no agenda. Judges don't have campaign promises," Barrett said toward the end of the nearly 12-hour hearing.
During one memorable exchange with Senator Dianne Feinstein, who questioned her on abortion, she said she had "an agenda to stick to the rule of the law."
"If I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another in a pending case," she said.
Senate Judiciary Chairman Lindsey Graham asked if she would be an originalist like late Justice Antonin Scalia, for whom she once clerked.
"If I'm confirmed, you would not be getting Justice Scalia, you would be getting Justice Barrett," Barrett said. "And that's so because originalists don't always agree and neither do textualists."
The committee will reconvene on Wednesday, and senators will be given 20 minutes each for their second round of questioning.
- Barrett responds to "cruel" claims centered on her adoptions of two Haitian children
- Barrett tells Kamala Harris she was not aware of Trump's comments about ACA before her nomination
- Barrett reiterates she has not spoken with the White House about abortion, gay marriage and Obamacare cases
- Booker presses Barrett on use of phrase "sexual preference"
After nearly 12 hours of marathon questioning, the second day of confirmation hearings concluded at 8:16 p.m. The Judiciary Committee will reconvene at 9:00 a.m. on Wednesday for a second day of questioning. Senators will be given 20 minutes each in their second round to ask Barrett follow-up questions.
"One more day, 20 minutes apiece," Committee Chairman Lindsey Graham said before gaveling out today's hearing.
Barrett responds to "cruel" claims centered on her adoptions of two Haitian children
Kennedy raised a comment made by Boston University professor Ibram Kendi on Twitter last month, in which he cited "white colonizers" who adopted Black children and used them as "props."
"I want to give you a chance to respond to something some butthead professor at Boston University says that because you and your husband have two children of color, that you're a white colonist, the implication is that you're a racist and that you use your two children as props," Kennedy said. "Do you use your children as props?"
Barrett, whose voice trembled, referenced comments she made to Graham earlier in the day in which she discussed the risks she and her family were taking by accepting the Supreme Court nomination.
"Senator Kennedy, it was the risk of people saying things like that which would be so hurtful to my family that when I told Senator Graham this morning that my husband and I had to really weigh the costs of this, it was saying deeply offensive and hurtful things, things that are not only hurtful to me, but are hurtful to my children, who are my children and who we love and who we brought home and made part of our family, and accusations like that are cruel."
Barrett says she is not a liar
GOP Senator John Kennedy asked Barrett if she would adhere to the oath of office as a justice. Barrett has repeatedly said that she would and would not allow her personal views to influence her decision-making process.
"So when Senator Harris and her colleagues say you're a liar, they're wrong," Kennedy said.
"They are," Barrett said. No Democrat has called Barrett a liar, but Kennedy accused them of implicitly having done so by suggesting she would violate her oath of office by letting her personal opinions influence her decision making.
She also said that Harris was "not right" when she suggested that Barrett's personal views could affect her jurisprudence.
Barrett tells Kamala Harris she was not aware of Trump's comments about ACA before her nomination
Senator Kamala Harris asked Barrett whether she was aware of President Trump's comments and tweets saying he would want to nominate a judge who would overturn the Affordable Care Act.
"I don't recall seeing or hearing those statements," Barrett said. She added that she had become aware of these statements during her discussions with senators ahead of the confirmation hearings.
Barrett addresses mock argument in Obamacare case
Barrett addressed her participation in a moot court at William & Mary Law School, which featured a mock argument in the Obamacare case.
"It was an educational exercise," she said. "It was made very clear to the audience both at the outset and in the deliberation room, and then outside that this was not designed to reflect the actual views of any of the participants, and nor could it."
Barrett said she found the individual mandate was unconstitutional but severable from the rest of the law, which would allow Obamacare to stand. She stressed, however, the exercise "wasn't designed to reflect my actual views."
"To the extent that people think I might have been signaling to the president or anyone else what my views on the Affordable Care Act are, they couldn't have taken any signal from that, but I was not trying to signal anything because it was a mock exercise," she said.
Barrett reiterates she has not spoken with the White House about abortion, gay marriage and Obamacare cases
Idaho Senator Mike Crapo, a Republican, focused on the principle of stare decisis, and asked Barrett about three different cases and whether she had discussions with anyone in the White House about them.
On Roe v. Wade, Barrett said, "I have not," when asked whether she has had any discussion with President Trump or White House aides about the case.
On Obergefell v. Hodges, she said, "I've had no conversations with anyone on the White House staff about that case, my views on it, how I would rule."
And on California v. Texas, the Obamacare case before the justices next month, Barrett said, "No conversations at all."
Booker presses Barrett on use of phrase "sexual preference"
Following up on Hirono's comments about Barrett's use of the phrase "sexual preference," Booker also pressed Barrett on her use of the term.
"I really, in using that word, did not mean to imply that … it's not an immutable characteristic or that it's solely a matter of preference. I honestly did not mean any offense or to make any statement by that," she said.
"I'm saying I was not trying to make any comment on it. I fully respect all the rights of the LGBTQ community, Obergefell is an important precedent of the court," she continued. "I reject any kind of discrimination on any sort of basis."
Barrett indicates that she believes there is "implicit bias" in U.S. judicial system
Barrett answered several questions from Senator Cory Booker about her views on race. Booker asked her about systemic racism, and Barrett said that she was "aware that there have been studies" on issues of systemic racism and implicit bias.
"It would be hard to imagine a criminal justice system as big as ours not having implicit bias in it," Barrett said.
Booker also discussed Smith v. Illinois Department of Transportation, where Barrett wrote for a unanimous three-judge panel that upheld the dismissal of a Black Illinois transportation official. Terry Smith, the plaintiff, claimed that his supervisor called him the n-word. But Barrett and the other judges found that Smith "introduced no evidence that Colbert's use of the n-word changed his subjective experience of the workplace."
"To be sure, Smith testified that his time at the Department caused him psychological distress. But that was for reasons that predated his run-in with Colbert and had nothing to do with his race," Barrett wrote in the 2019 decision. "His tenure at the Department was rocky from the outset because of his poor track record."
She defended that decision to Booker, stating that Smith had not presented the use of the n-word as the reason for his termination.
Barrett discusses peaceful transfer of power
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."
Hirono criticizes Barrett for using term "sexual preference"
Referencing an earlier line of questioning from Feinstein about Obergefell v. Hodges, Hawaii Senator Mazie Hirono, a Democrat, criticized Barrett for using the term "sexual preference," calling it "offensive and outdated."
Barrett told Feinstein this morning she has "never discriminated on the basis of sexual preference."
"It is used by anti-LGBTQ activists to suggest that sexual orientation is a choice," Hirono said. "It is not."
The senator said Barrett's use of the term underscores concerns about the future of LGBTQ rights under a Supreme Court with a 6-3 conservative majority.
In response, Barrett said, "I certainly didn't mean and would never mean to use a term that would cause any offense in the LGBTQ community, so if I did, I greatly apologize for that."
Barrett says she would consider "real-world consequences" in certain cases
Senator Mazie Hirono, Democrat of Hawaii, asked Barrett if she would follow in the footsteps of Justice Ruth Bader Ginsburg by considering the real-world impact a ruling could have when making a decision. Barrett said that she would when relevant.
"No case comes before the court unless it involves real life people," Barrett said, adding that it was sometimes necessary to consider "real-world consequences."
"I will take into account all factors including real-world impact when the law makes it relevant," Barrett said.
However, Hirono was unsatisfied with Barrett's answer, as the judge then continued to refuse to say whether she believed previous cases were decided correctly.
Barrett addresses claims she omitted materials from her committee questionnaire
In the wake of her nomination to the Supreme Court, Democrats have claimed that Barrett omitted materials from her extensive questionnaire submitted to the Senate Judiciary Committee, including two advertisements that expressed an anti-abortion view.
Senator Richard Blumethal, a Democrat from Connecticut, pressed Barrett about the 2006 ad from St. Joseph County Right to Life, which was not cited in Barrett's questionnaire.
"I didn't have any recollection of that statement," Barrett said. "I signed it almost 15 years ago quickly on my way out of church, and the questionnaire asks me for 30 years worth of material."
Barrett said after the ad was brought to her attention, "I did go back and look at the questionnaire, and I actually don't think that statement is responsive to question 12."
Question 12 asks for specified published writings and public statements.
Barrett noted she provided more than 1,800 pages of documents to the committee and submitted supplemental information to the committee last week. Among the additional information is a 2013 open letter from University Faculty for Life, an organization Barrett was a member of while she was a professor at Notre Dame Law School, that stated the signatories "reaffirm our full support for our university's commitment to the right to life."
Notre Dame is a Catholic university.
"Thirty years worth of material is a lot to try to find and remember," she said. "I had no recollection of it and it surfaced in the press and so it came to my attention and so I supplemented."
Blumenthal suggested the information was not referenced on the questionnaire because of the "rushed" process, though Barrett rejected the notion.
"All six prior nominees, or the most recent six, have had to supplement too," she said. "I don't think it really has anything to do with time. I think it has to do with the volume of material."
Barrett stresses she sees her "personal, moral, religious views" as "distinct" from tasks as a jurist
Senator Josh Hawley, a Republican from Missouri, questioned Barrett about a 2006 newspaper ad sponsored by St. Joseph County Right to Life which said the signers "oppose abortion on demand and support the right to life from fertilization to a natural death."
Barrett signed her name to the statement and reiterated that she did so on her way out of church, as the position on abortion described in the ad is that of the Catholic Church.
"I do see as distinct my personal, moral, religious views and my tasks of applying the law as a judge," Barrett said.
Barrett noted that the ad dates back 15 years, and she signed it in her personal capacity while she was a private citizen. Barrett was a professor at Notre Dame Law School for 15 years and was confirmed to the 7th Circuit in 2017.
"Now I'm 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 says she would consider recusing herself from an election case
Senator Chris Coons asked Barrett again whether she would recuse herself from an election-related case, noting that President Trump has expressed the wish for the Supreme Court vacancy to be filled in order to rule on any election disputes. Barrett said that she did not exhibit any "actual bias," meaning that Mr. Trump nominating her would not impact her decision-making process.
"No matter what anyone else may think or expect, I have not committed to anyone," Barrett said, adding that she hasn't made a ruling on any election-related cases in her three years on the bench. "I haven't even written anything that I would think anybody would reasonably say, 'Ah, this is how she would settle an election dispute.'"
She said she hoped senators thought more of her "integrity," but acknowledged that there might be an "appearance of bias" because she was nominated by Mr. Trump.
"I will consider all factors that are relevant to that question that requires recusal when there's an appearance of bias," Barrett promised. "If I were confirmed, and if an election dispute arises, and those are both ifs, then I would very seriously undertake that process and I would consider every factor."
Barrett: "I'm not here on a mission to destroy the Affordable Care Act"
In a lengthy exchange 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 was evidence that 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 says Roe v. Wade is not "superprecedent"
Democratic Senator Amy Klobuchar of Minnesota pressed Barrett about a 2015 Texas Law Review article focused on precedent, in which Barrett listed specific cases included on "most hit lists of superprecedent," including Brown v. Board of Education and Marbury v. Madison.
Asked whether she believes Roe v. Wade is superprecedent, Barrett said that under the definition of the term used in scholarly literature, it is not.
"The way that it's used in the scholarship and the way that I was using it in the article that you're reading from was to define cases that are so well-settled that no political actors and no people seriously push for their overruling," she said. "I'm answering a lot of questions about Roe, which I think indicates that Roe doesn't fall in that category and scholars across the spectrum say that doesn't mean that Roe should be overruled. But descriptively it does mean that it's not a case that everyone has accepted and doesn't call for its overruling."
Barrett added that the landmark 1973 decision "doesn't fall on the small handful of cases like Marbury v. Madison and Brown v. the Board that no one questions anymore."
Barrett says she "can't speak to what the president has said on Twitter"
Senator Amy Klobuchar asked Barrett whether she took President Trump at his word when he tweeted in 2015 that he wanted his judicial appointments to "do the right thing" with regard to the Affordable Care Act. Barrett reiterated that Mr. Trump had never put any political pressure on her to overturn the ACA.
"I can't really speak to what the president has said on Twitter. He hasn't said any of that to me," Barrett said. "No one has elicited from me any commitment in the case or even brought up a commitment in the case."
Barrett said she would not consider any campaign promises when making decisions, explaining that "the reason why judges have life tenure is to insulate them from those pressures."
Klobuchar asked Barrett if she would have sided with Justice Antonin Scalia in his dissenting opinion in a 2012 case which upheld the ACA. Barrett said that opinions as she professed as an academic did not necessarily reflect how she would rule as a justice.
"A professor professes and can opine, but it's very different in the judicial decision-making process," Klobuchar said. "Now, having been a judge for three years, I appreciate greatly the distinctions between academic writing and academic speaking and judicial decision making."
Committee returns to resume questioning
The Senate Judiciary Committee reconvened at 12:45 p.m. Rhode Island Senator Sheldon Whitehouse has begun his 30 minutes of questions for Barrett.
Committee breaks for lunch
Graham recessed the committee for a 30-minute break. They are set to resume questioning at 12:45 p.m. Fifteen senators remain in the first round of questioning for Barrett, with each getting 30 minutes.
Barrett declines to weigh in on expanding seats to the Supreme Court
Under questioning from Republican Senator Mike Lee, Barrett noted that there was no constitutional provision dictating how many justices should be on the Supreme Court.
Some Democrats have proposed adding seats to the Supreme Court to counter the conservative majority on the court. Lee asked Barrett whether she thought that expanding the court would upset the balance of the three branches of government.
"It's difficult for me to imagine what specific constitutional question you're asking me," Barrett replied, saying that the question was too hypothetical.
Democratic presidential nominee Joe Biden and vice presidential nominee Kamala Harris have sidestepped questions on expanding the court for weeks. However, Bidenthat he was "not a fan" of adding seats to the court.
Lee accused Democrats of wanting to expand the court, but did not ask any more specific questions of Barrett.
Barrett discusses impact of George Floyd's death on her family
Durbin asked Barrett whether she had watched the video of the death of George Floyd, a Black man who died after being pinned to the ground for nearly nine minutes by police officers in May. Barrett, who has two adopted Black children from Haiti, said she had seen the video, and that it had been "very, very personal" for herself and her family. She described explaining Floyd's death to her children, and how they struggled with it.
"My children, to this point in their life, have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence," Barrett said.
However, Barrett did not explicitly say whether she believed that systemic racism existed in the country.
She said that she believes it is an "entirely uncontroversial and obvious statement" to say "that racism persists in our country." But she said that "putting her finger on the nature of the problem" was not her responsibility.
"Giving broader statements or making, you know, broader diagnoses about the problem of racism is kind of beyond what I'm capable of doing as a judge," Barrett said.
Barrett: "I am not hostile to the ACA"
Under questioning from Senator Dick Durbin, Barrett said that Democrats appear to have reached a conclusion that she was "hostile" to the Affordable Care Act given her previous criticisms of Chief Justice John Roberts' reasoning in a 2012 decision upholding the law.
"I am not hostile to the ACA. I am not hostile to any statute that you pass," Barrett said. "I apply the law, I follow the law, you make the policy."
Barrett says "precedent of the Supreme Court" established right to same-sex marriage
Leahy pressed Barrett for her opinion on the rights of same-sex couples to marry, something guaranteed by the Supreme Court in the 2015 case Obergefell v. Hodges. Previously, Feinstein had asked Barrett whether she agrees with the late Justice Antonin Scalia's criticism of that decision, and Barrett declined to offer her opinion.
To Leahy, Barrett said it's clear that Obergefell establishes the right of same-sex couples to marry.
"It's precedent of the Supreme Court that gives same-sex couples the right to marry," Barrett said.
Barrett declines to commit to recusing herself from election-related disputes
Appearing remotely via video conference, Democratic Senator Patrick Leahy of Vermont asked Barrett to commit to recusing herself from any election-related disputes that may end up before the Supreme Court.
Barrett declined to commit to doing so, citing the process a justice goes through when deciding whether to sit out a case, and said she "can't offer an opinion on recusal without short-circuiting that entire process."
"I commit to you to fully and faithfully applying the law of recusal, and part of that law is to consider any appearance questions," she said. "I can't offer a legal conclusion right now about the outcome of a decision I would reach."
Mr. Trump has said it's vital for the Supreme Court vacancy to be filled before the election because the outcome of the race may be decided by the high court.
Barrett: "I've never expressed a view on" IVF
Leahy questioned Barrett about whether she agrees with the views expressed by St. Joseph County Right to Life, an organization that has said it opposes in vitro fertilization. Barrett signed a newspaper ad in 2006 placed by the group, which stated support for the right to life from conception to natural death.
Barrett said she signed the statement while leaving church and stressed it did not include a view on IVF.
"I've never expressed a view on it and for the reasons that I've already stated, I can't take policy positions or express my personal views before the committee because my personal views don't have anything to do with how I would decide cases, and I don't want anybody to be unclear about that," she said.
Barrett says she didn't take a position on filling Scalia seat in 2016
Senator Patrick Leahy, appearing remotely, referenced comments Barrett made in an interview with CBSN shortly after Scalia died in 2016 and Republicans in the Senate were blocking the nomination of Judge Merrick Garland, President Obama's pick to replace him on the high court.
"You said it's 'not a lateral move.' That's your quote, that it 'was not a lateral move.' So now you're nominated to replace Justice Ginsburg, perhaps the staunchest champion for civil rights on the court," Leahy said. "You mentioned that the philosophy of Justice Scalia is your own. Of course, he was on the opposite side of Justice Ginsburg on countless civil rights cases. Would you say that replacing Justice Ginsburg by yourself is 'not a lateral move', like you urged when you supported the blocking of President Obama's nominee, Judge Garland?"
Barrett corrected Leahy's characterization of the CBSN interview, in which she did not say whether the Senate should move forward with Garland's nomination and stated she did not think precedent "establishes a rule for either side in the debate."
"Senator Leahy, I want to be very clear. I think that's not quite what I said in the interview," Barrett replied. "It was an interview that I gave shortly after Justice Scalia's death, and at that time, both sides of the aisle were arguing that precedent supported their decision. I said while I had not done the research myself, my understanding of the statistics was that neither side could claim precedent, that this was a decision that was the political branches' to make, and I didn't say which way they should go. I simply said it was the Senate's call."
Barrett added that she "didn't advocate or publicly support the blockade of Judge Garland's nomination, as you're suggesting."
Here is the full 2016 interview with Barrett, who was a professor at Notre Dame Law School at the time:
Barrett says she never made any commitments to White House on cases
GOP Senator Chuck Grassley of Iowa asked Barrett whether she made any promises or guarantees to the White House about how she might rule on a case or issue, addressing claims from Barrett's detractors that she was selected because she would vote to overturn Roe.
"I want to be very, very clear on this Senator Grassley," Barrett said. "The answer is no, and I submitted a questionnaire to this committee in which I said no. No one has ever talked about any cases with me."
"Just as I didn't make any precommitments and was not asked to make any commitments on the executive branch side, I can't make any precommitments to this body either," she continued. "It would be inconsistent with judicial independence."
Grassley also asked Barrett whether she committed to Mr. Trump that she would vote to kill Obamacare after the Supreme Court hears a challenge to the health care law next month.
"Absolutely not," she said emphatically. "I was never asked, and if I had been, that would've been a short conversation."
Barrett: "Racism is abhorrent"
While Barrett declined to say how she would rule on cases that involve issues that could come before her as a Supreme Court justice or 7th Circuit judge, Feinstein asked Barrett whether she has a general belief on discrimination and racism.
"As a person, I have a general belief that racism is abhorrent," Barrett told Feinstein.
In a separate line of questioning about discrimination on the basis of sexula orientation, Barrett said, "Like racism, I think discrimination is abhorrent."
Barrett also declined to say whether she believed Obergefell v. Hodges, which legalized same-sex marriage nationwide, was correctly decided. Feinstein noted that Scalia, a mentor of Barrett with whom she shares the same judicial philosophy, dissented in the landmark 2015 decision.
"I don't think that anybody should assume that just because Justice Scalia decided a decision a certain way that I would too," Barrett said. She said that she had "never discriminated on the basis of sexual preference," but added that she couldn't answer a specific legal question on the issue because she was still a sitting judge.
Barrett declines to say how she would rule on pending Obamacare case
Feinstein questioned Barrett on her views on the Affordable Care Act, saying there is "great concern on what your view is."
Barrett acknowledged that she criticized Chief Justice John Roberts' decision in the Supreme Court's 2012 blockbuster ruling upholding the law's individual mandate to buy health insurance. However, she said the case on the ACA currently before the court — California v. Texas — dealt with a "different issue" than previous cases on the ACA, and one which she hadn't spoken about publicly. The court is set to hear arguments in the case one week after the election.
"The issue in California v. Texas is whether now that Congress has just completely zeroed out the mandate, whether it's still a tax or a penalty," Barrett said. California v. Texas challenges the individual mandate, which was largely eliminated as part of the 2017 tax cuts. The U.S. Court of Appeals for the 5th Circuit ruled that the individual mandate was no longer constitutional, but didn't make a decision about whether the rest of the law should be struck down.
Barrett said the case raises the question of "severability, that is, "is that provision that's been zeroed out so critical to the statute that the statute falls apart?"
She said that she hadn't expressed a view before on the issue of severability, and would not do so now.
"It's a case that's on the court's docket and the canons on the judicial conduct would prohibit me from expressing that view," Barrett said.
Barrett declines to say whether Roe v. Wade was wrongly decided
Senator Dianne Feinstein, the committee's top Democrat, opened her questioning by asking Barrett to introduce her family, seated behind her. Feinstein then turned to Roe v. Wade to question whether Barrett believes the landmark 1973 abortion case should be overturned.
"Do you agree with Justice Scalia's view that Roe was wrongly decided?" Feinstein asked.
Barrett declined to address Roe directly, citing Justice Elena Kagan to say she couldn't comment on precedents that continue to be challenged in court.
"When she was in her confirmation hearing, she said that she was not going to grade precedent, or give it a thumbs up or thumbs down, and I think in an area where precedent continues to be pressed and litigated, as is true of Casey, it would be particularly, it would actually be wrong and a violation of the canons to do that as a sitting judge," Barrett replied. "So if I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another in a pending case."
"So on something that is really a major cause, with major effect on over half of the population of this country who are women, after all, it's distressing not to get a straight answer," Feinstein said.
Barrett insisted that she had no agenda, specifically mentioning Planned Parenthood v. Casey, the 1992 ruling that established the "undue burden" standard for restrictions on abortion.
"I can't pre-commit or say I'm going in with some agenda, because I'm not," Barrett said. "What I will commit is that I will obey all the rules of stare decisis, that if a question comes up before me about whether Casey or any other case should be overruled, that I will follow the law on stare decisis, applying it as the court has articulated it."
Barrett also discussed District of Columbia v. Heller, a 2008 case where the Supreme Court reaffirmed the right to bear arms. She said the Heller decision "leaves room for gun regulations," and that the right to bear arms was not "absolute."
Barrett: "I'm aware of a lot of the caricatures that are floating around"
In his final question to Barrett at the end of his 30-minute allocation, Graham asked Barrett how she feels about being nominated to the Supreme Court.
"I've tried to be on a media blackout for the sake of my mental health," she said. "But you can't keep yourself walled off from everything, and I'm aware of a lot of the caricatures that are floating around."
Barrett said that in her life, she has "made distinct choices."
"I've decided to pursue a career and have a large family. I have a multi-racial family. Our faith is important to us. All of those things are true, but they are my choices," she said. "I have a life brimming with people who have made different choices and I've never tried in my personal life to impose my choices on them, and the same is true professionally. I apply the law."
Barrett went on to explain why she decided to accept Mr. Trump's offer of the Supreme Court nomination.
"I don't think it's any secret to any of you or to the American people that this is a really difficult, some might say excruciating process, and Jesse and I had a very brief amount of time to make a decision with momentous consequences for our family," she said. "We knew that our lives would be combed over for any negative detail. We knew that our faith would be caricatured. We knew our family would be attacked and we had to decide whether those difficulties would be worth it, because what sane person would go through that if there wasn't a benefit on the other side?"
Barrett said the benefit is that she is committed to the rule of law and the "role of the Supreme Court in dispensing equal justice under law," and said she believes she should serve her country.
Barrett: If confirmed, "you would not be getting Justice Scalia. You would be getting Justice Barrett"
In response to questions from Graham, Barrett described her judicial philosophy and sought to dispel claims that judges who believe in originalism and textualism rule in lockstep.
"If I'm confirmed, you would not be getting Justice Scalia, you would be getting Justice Barrett," Barrett said. "And that's so because originalists don't always agree and neither do textualists."
Barrett noted that the late Justice Antonin Scalia and current Justice Clarence Thomas, who shared the same judicial philosophy, did not find themselves on the same sides of cases at times.
Graham, in an effort to head off questions from Democrats on Brown v. Board of Education and Roe v. Wade, asked Barrett the process that would occur for the Supreme Court to take up challenges to both.
"You would have to have Congress or some state or local government impose segregation again," Barrett said.
Judges, she continued, "can't just wake up one day and say 'I have an agenda. I love guns. I hate guns. I like abortion. I hate abortion' and walk in like a royal queen and impose their will on the world."
"You have to wait for cases and controversies, which is the language of the Constitution, to wind their way through the process," Barrett said.
Asked whether she owns a gun, Barrett said, "We do," but asserted that she can set aside her views and rule on Second Amendment cases fairly.
Graham also touched on whether Barrett can set aside her Catholic faith in her role as a judge.
"I can, I have done that in my time on the 7th Circuit," she said.
Graham gavels in hearing at 9 a.m. sharp
Graham convened the second day of Barrett's confirmation hearing at 9 a.m. on the dot. Joining Barrett again today are her children and husband. White House counsel Pat Cipollone is also in attendance.
Graham began his time remarking on the Affordable Care Act, calling it a "disaster" for his home state of South Carolina.
Tillis cleared for in-person activities after COVID-19 diagnosis
North Carolina Senator Thom Tillis, who announced October 2 he tested positive for COVID-19, received approval from his personal physician to return to in-person activities Tuesday, in time for the second day of Barrett's confirmation hearing.
A letter from Dr. Jack Faircloth and released by the senator states that "since you have had such a mild case of COVID-19 and have a strong immune system you are free to return to work without any restrictions on" October 13.
"The CDC guidelines for ending isolation re: those that know they are positive for the new coronavirus are simple. Regarding your case, there are 3 criteria that are CDC guidelines to meet," Faircloth wrote. "One must complete 10 days of quarantine from testing positive when they were diagnosed asymptomatically like yourself. Second, one must be fever free for at least 24 hours without the use of fever reducers. Last, one must have all other symptoms improve. You will fulfill all of these CDC criteria of ending your COVID-19 isolation at 4 pm today, 10/12/2020."
Tillis participated in the first day of Barrett's confirmation hearings remotely, appearing via video conference to deliver his opening statement.
Graham schedules committee vote on Barrett nomination for Thursday before hearings conclude
Senate Judiciary Committee Chairman Lindsey Graham, a Republican from South Carolina, scheduled a vote by the committee to approve Barrett's Supreme Court nomination for Thursday, before her confirmation hearings are complete.
The 22-member committee is set to meet Thursday at 9 a.m. to vote on a slew of nominations, including Barrett's, according to an agenda from the panel. The business meeting is scheduled to occur before the final portion of her four-day-long confirmation hearings, which end with an outside panel of witnesses testifying in support of and opposition to Barrett's nomination.
Committee rules allow the nomination to be held over for one week, teeing up a vote by the committee on October 22. The timeline would allow for a vote by the full Senate the following week, just before the November 3 election.
Graham's scheduling of the vote before hearings are complete rankled Senate Democrats who view the move as further evidence Republicans are rushing to confirm Barrett.
California Senator Dianne Feinstein, the committee's top Democrat, said Graham's announcement is "unprecedented in my time on the committee."
"It's another example of Republicans ignoring rules and tradition so they can rush this nominee through before the election — and in time to supply a vote to strike down the Affordable Care Act," Feinstein said.
Senate Minority Leader Chuck Schumer of New York also denounced the move.
"By jumping to the next step in the process before Judge Barrett's hearing is complete, Chairman Graham is showing that even he considers this process to be an illegitimate sham," he said in a statement.
How to watch Amy Coney Barrett's Senate hearing
- What: Day 2 of Senate Judiciary Committee hearings on the nomination of Amy Coney Barrett to the Supreme Court
- Date: Tuesday, October 13
- 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