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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:

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Klobuchar asks if it's a coincidence Barrett would be third justice who worked on Bush v. Gore

Klobuchar asked Barrett if absentee ballots, "better known as mail-in ballots," are an essential way to vote for millions of people right now in the middle of the current pandemic.

"That's a matter of policy on which I can't express a view," Barrett said. 

"To me, that just feels like a fundamental part of our democracy," Klobuchar responded.

Klobuchar then pointed out that if confirmed, the Supreme Court would have three justices who worked on behalf of the Republican Party on the pivotal Bush v. Gore case in 2000 that resulted in George W. Bush winning that year's presidential election after a recount in Florida. She said that would include Barrett, Chief Justice John Roberts and Justice Brett Kavanaugh. 

Asked if she thinks that's a coincidence, Barrett said, "Senator Klobuchar, if you're asking me whether I was nominated for this seat because I worked on Bush versus Gore for a very brief period of time as a young associate, that doesn't make sense to me."

Barrett says she did not 'cut a deal with the president' on any cases

In an exchange with Klobuchar, Barrett reiterated comments that she made in her testimony before the committee on Tuesday about not making any pre-commitments about any cases — including the Affordable Care Act case.

"You're suggesting that I have animus or that I cut a deal with the president and I was very clear yesterday that that isn't what happened," Barrett said. 

Klobuchar says Barrett's 'tracks' signal that she could vote to strike down 'Obamacare'

Klobuchar said that Barrett's record signals that she could vote to strike down the Affordable Care Act in the upcoming Supreme Court case. 

"I've been following the tracks and the only way for the American people to figure out how you might roll is to follow your record and follow the tracks," said Klobuchar, who noted that Barrett has said she considers Scalia a mentor, has criticized Chief Justice John Roberts upholding the ACA and praised the dissent by Scalia in that ruling. 

"To me, these tracks lead us to one place, and that is that you will have the polar opposite judicial philosophy of Justice Ginsburg, and to me, that would change the balance of this court," Klobuchar added. 

Hearing has resumed after quick lunch break

The hearing has resumed after a 30-minute lunch break. Sen. Amy Klobuchar, D-Minn., is up for her second round of questioning. 

Committee takes 30-minute lunch break

The committee is taking a lunch break and will return at 12:30 p.m. ET, Graham said. Sen. Amy Klobuchar, D-Minn., will begin her questions for Barrett when the senators return. Lawmakers are on their second round of questions and their third day of the hearing. Each senator has been given up to 20 minutes to ask questions of the nominee.

Cruz attacks absent Democrats, Durbin responds by pointing to pandemic

Sen. Ted Cruz, R-Texas, began his round of questions by criticizing Democrats for not being inside the hearing room throughout the day, claiming it indicates they "don't have substantive criticism." 

Durbin, however, interjected, raising a point of personal privilege to say the country is in the midst of the Covid-19 pandemic, "and some members are in their offices following this on television, and to suggest their absence here means they're not following or participating is incorrect."

Cruz then noted that all but two Democrats on the committee were in the hearing room at one point during the first round of questions Tuesday. 

The second round of questions is taking place Wednesday before the panel goes into closed session with Barrett. Many senators generally pop into hearings when it comes time for them to speak and don't sit in the room throughout. 

Barrett says she didn't know justices are subject to lower ethics standards

Whitehouse spoke about how Supreme Court justices are not subject to some of the codes of ethics that apply to lawmakers or judges of lower courts and about the lower reporting requirements that the justices have.

"I think it's anomalous that the highest court should have the lowest standards," Whitehouse said. "I hope you'll keep an open mind about trying to fix that when you're on the court." 

Barrett said she didn't realize that justices have lower standards in reporting their financial disclosures.

"I'm surprised because I did think it was a statute that applied to everyone — so I'm surprised," she said. "I've always complied with filling out my financial disclosure reports." 

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.