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Amy Coney Barrett Supreme Court confirmation hearing day 3: Highlights and analysis

Trump's nominee faced a second round of questions from the Senate Judiciary Committee.

Judge Amy Coney Barrett faced a second round of questions from the Senate Judiciary Committee on Wednesday, the third day of her confirmation hearings for the U.S. Supreme Court.

Barrett, President Donald Trump's nominee to replace the late Justice Ruth Bader Ginsburg, on Tuesday also endured a marathon day of questioning from the committee's 22 senators, including Democratic vice presidential nominee Sen. Kamala Harris.

Democrats on the committee asked her to explain her positions on the Affordable Care Act, abortion rights, the upcoming election and other contentious issues that she might need to rule on if she is confirmed.

Read the latest updates below:

Live Blog

Leahy calls out Cornyn retweet showing dated photo of maskless senators

In a tweet, Leahy called out a post on Twitter from Cornyn, who retweeted a photo of Democratic senators huddled together, free of face coverings, along with the question, "Masks?" 

The photo of Booker and Whitehouse surrounding Blumenthal is from the Kavanaugh hearings in 2018, well before the coronavirus pandemic. 

Leahy noted that the photo was dated and added that he looks forward to Cornyn "calling out President Trump for not wearing a mask next time."

Barrett doesn’t say if Social Security and Medicare are constitutional

Amy Coney Barrett refrained Wednesday from saying whether she believes the Social Security and Medicare programs are constitutional.

Senate Judiciary Ranking Member Dianne Feinstein, D-Calif., asked Barrett if she agrees with originalist scholars like Mike Rappaport, a law professor at the University of San Diego, who has written to argue that those two programs are unconstitutional.

Barrett, who also describes herself as an originalist, said she hasn’t seen his article and could not comment.

Asked broadly if she agrees with scholars who say Social Security and Medicare exceed the government's power under the Constitution, Barrett said she couldn’t answer because she hadn't reviewed the arguments and that such a lawsuit could become before her.

"I can't answer the question in the abstract," Barrett replied.

Feinstein sounded surprised at her evasion. "It's hard for me to believe that's a real question,” the senator said. “The Medicare program is really sacrosanct in this country."

Committee to take lunch break around noon

Graham announced the committee will take a break for lunch around noon, once Sens. Mike Lee, R-Utah, Sheldon Whitehouse, D-R.I., and Ted Cruz, R-Texas, finish their questions. Each senator has up to 20 minutes for this round of questions.

How SCOTUS has ruled on severability

During her Q&A with Feinstein, Barrett said the key question in this year's Obamacare case is what the lawyers call severability, which means deciding whether a part of a law that’s determined to be invalid dooms the entire law, or whether the invalid part it can be severed to leave the rest of the law intact.

In a case last term about a federal statute, Justice Brett Kavanaugh wrote the majority opinion upholding the law and finding an invalid part of it severable. His opinion included a section analyzing how the court makes that kind of decision. That part of his opinion was joined by Chief Justice John Roberts and Justice Samuel Alito, who are also among the court’s conservatives. 

The Supreme Court's precedents over time have reflected a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause. From Marbury v. Madison to the present, apart from some isolated detours mostly in the late 1800s and early 1900s, the court’s remedial preference after finding a provision of a federal law unconstitutional has been to salvage rather than destroy the rest of the law.

The presumption manifests the judiciary’s respect for Congress’ legislative role by keeping courts from unnecessarily disturbing a law apart from invalidating the provision that is unconstitutional.  

Barrett refuses to say whether a president can deny the right to vote based on a person's race

Sen. Dick Durbin, D-Ill., referred to a question asked by Feinstein on Tuesday about whether the president has the authority to unilaterally delay an election under any circumstances, to which Barrett had answered that she wouldn't be a "legal pundit." 

Durbin then asked Barrett what her response would be if the president had the authority to unilaterally deny the right to vote to any person based on his or her race. Barrett said the equal protection clause "prohibits discrimination on the basis of race," and the 15th Amendment "protects the right to vote against discrimination based on race."

Pressed again to answer the question, Barrett said, "I just referenced the 14th and 15th amendments, the same ones that you just repeated back to me that do prohibit discrimination on the basis of race and voting. So, as I said, I don't know how else, I can say it, the Constitution contains provisions that prohibit discrimination on the basis of race and voting."

"I really can't say anything more than I'm not going to answer hypotheticals," she added.

Can the president pardon himself?

Barrett is right to say the Supreme Court has never considered whether a president can pardon himself or herself.

Because no president has ever been charged with a crime, no president has ever tried to pardon himself, and therefore no one knows whether a president has the power of self-pardon. 

Not surprisingly, legal scholars disagree. A 1974 Justice Department memorandum concluded that the answer was no, because of "the fundamental rule that no one may be a judge in his own case."

However, that same memo also laid out the following scenario, which it said would probably be legally permissible. A president could invoke the 25th Amendment, declaring himself temporarily unable to discharge the duties of the office, allowing the vice president to become acting president and issue a pardon. The president could then resume the duties of the office, pardon intact. So a president would not have directly issued the pardon, but he’d have it anyway. 

 

Barrett says no man is above the law when asked if a president must follow a court order

Leahy asked Barrett if a sitting president must follow a court order and whether a ruling by the Supreme Court is final. 

Barrett said that she agrees no man is above the law — a continual Democratic refrain during their impeachment proceedings and legal challenges to Trump — but she said, "As a matter of law, the Supreme Court may have the final word but the Supreme Court lacks control over what happens after that."

Asked if a president can pardon himself, Barrett said that the question has never been litigated. 

"It’s not one in which I can offer a view," she said.

'Look at that line': Leahy holds up image showing long waits at an early voting site in Georgia

Voters line up to cast their ballots for the upcoming presidential elections in Atlanta on Oct. 12, 2020.Chris Aluka Berry / Reuters

Sen. Patrick Leahy, D-Vt., held up a photo of long voting lines in DeKalb County, Georgia, during his round of questioning when discussing the Voting Rights Act. 

"Look at that line. I suspect neither you nor I have ever had to wait in line like that to vote," Leahy said to Barrett. "People talked about, well, are we giving racial entitlement? This is not entitlement for any Americans. This is turning our back on democracy. This is saying you can't vote or we're gonna make it so difficult for you to vote so that you can't."

Asked if Barrett acknowledges that communities of color disproportionately face voting restrictions and obstacles to voting, she said, "I wasn't aware of the statistics that you were citing to me. If it became relevant in any case that was litigated before me and was presented to me, I would of course have an open mind about it."

Barrett says she would keep an 'open mind' about allowing cameras in the Supreme Court

Grassley asked Barrett about the issue of allowing cameras in courtrooms, including the Supreme Court. 

"Many of us believe that allowing cameras in the courtroom would open the courts to the public and bring about a better understanding of the judiciary," said Grassley, who added that he's introduced legislation over many years to give judges the discretion for media coverage of federal court proceedings.

Asked what her position is on the issue, Barrett said, "I would certainly keep an open mind about allowing cameras in the Supreme Court."

Barrett says she can't say whether Medicare or Social Security are constitutional

Barrett refused to say during an exchange with Feinstein whether the government's Medicare program is constitutional. 

"It's hard for me to believe that's a real question. The Medicare program is really sacrosanct in this country," Feinstein said. 

Barrett also wouldn't say whether she agrees with other originalists that Medicare and Social Security are unconstitutional. 

"I can't answer the question in the abstract," she said.