Judge Amy Coney Barrett faced questions from the Senate Judiciary Committee on Tuesday, the second day of her confirmation hearings for the U.S. Supreme Court.
Barrett, nominated by President Donald Trump, on Monday delivered her opening statement to the 22-member committee, explaining her judicial philosophy and paying tribute to the late Justice Ruth Bader Ginsburg, whom she would replace if confirmed. The senators also read their opening statements, previewing the key points that each side is likely to put forward during their questioning.
This coverage has ended. Follow the latest on Day 3 of the hearings here.
Read the latest updates below:
- Barrett: 'I'm not hostile to the ACA'
- Barrett dodges question about whether she'd recuse herself from any 2020 election case
- Barrett declines to say whether Roe v. Wade was wrongly decided
- Barrett says George Floyd's death was 'personal,' but can't make broad statement about racism
Whitehouse decries dark money in court process, does not ask Barrett any questions
Sen. Whitehouse used his time to break down how conservative legal groups like the Federalist Society and the Judicial Crisis Network use their deep pockets to influence the Supreme Court process.
"This is a pretty big deal. I've never seen this with any court I've been involved with, where there's this much dark money being used," Whitehouse said. "That raises the question, what are they getting for it?"
Whitehouse did not ask Barrett, who has ties to the Federalist Society, any questions during his time. He thanked Barrett for listening and said it would tee them up for a good conversation Wednesday, the third day of the hearing.
Sen. Sheldon Whitehouse, D-R.I., is now up for questioning after a brief lunch break.
Committee breaks for lunch
Graham announced a lunch break, which will last until 12:45 p.m. ET. Seven senators have questioned Barrett so far, and there are 15 left to go after the break.
Sen. Sheldon Whitehouse, D-R.I., will be up first when the committee returns. Graham said the panel might take additional breaks later. The hearing could go to 9 p.m. ET or later.
Lee, not wearing mask, goes on at length about judicial philosophy
Sen. Mike Lee, R-Utah, went on a filibuster of sorts, speaking about the Federalist Papers, judicial philosophy and the foundation of the U.S. legal system — all without a mask.
Lee recently tested positive for Covid-19 but said he was told Monday by his doctor that he could participate in the hearing in person. He spoke for 30 minutes without a mask on.
One of the few questions he asked of Barrett was about the difference between will and judgment. She said that will is an imposition of policy preferences as it happens in the making of law and judgment is evaluating that law for its consistency with the Constitution.
"A judge who approaches a case as an opportunity for an exercise of will has betrayed her judicial duty," she said.
ANALYSIS: Barrett concedes point on originalism
Under questioning from Sen. Durbin, D-Ill., Barrett appeared to acknowledge that the Constitution and the law are open to multiple interpretations. That can be gleaned from the need for appellate courts, not to mention the fact that there are Supreme Court decisions rendered as majority, concurring and dissenting opinions — meaning two justices can come to the same ruling from different applications of the Constitution to the law.
"It's hard," she said.
That's an acknowledgment of the inherent difficulty in the theories of "originalism" and "textualism" to which she subscribes. If the text and original "public meaning" were clear and agreed upon, there would be no need for a federal judiciary at all.
Originalism "is the original public meaning, not the subjective intent of any particular drafter,” Barrett said under friendly questioning from Sen. Lee, R-Utah. It's the "full body" of Congress that speaks, not any single lawmaker who participates in the process, she continued in rejecting the idea of legislative intent being implied by congressional debates. And yet, liberals and conservatives often vote for the same text believing that it has different meanings.
That's true in Congress and on the Supreme Court, which leads to Barrett's view that "the original public meaning" of laws should be the standard for determining their constitutionality. It is equally true that members of the public have different interpretations of what the law says. That's why there are lawsuits.
Durbin takes aim at Barrett's interpretation of felons owning guns and voting
Durbin asked Barrett what her legal opinion is about people previously convicted of a felony having the right to own a gun and how that's different from felons having the right to vote.
Barrett said that owning firearms is an individual right, but voting is only a collective civil right.
"To the extent, Senator Durbin, that you're suggesting that I have some sort of agenda on felon voting rights or guns or campaign finance or anything else, I can assure you and the whole committee that I do not," she said during the exchange.
Barrett says George Floyd's death was 'personal,' but she can't make broad statement about racism
Durbin asked whether Barrett saw the video of George Floyd's death in police custody earlier this year, and Barrett said she has and it was "very, very personal" for her family because she has two Black children.
She said she cried with her daughter, for example, who was adopted from Haiti, about the video. Barrett said she had to explain to her children what had happened because she said they've had the benefit of "growing up in a cocoon" and not experiencing hatred or violence.
Barrett, however, said that she couldn't give a broad statement or diagnoses about the "problem of racism" because she said it's "kind of beyond what I'm capable of doing as a judge."
"I would doubt it," Durbin responded. "I just don't believe you can be as passionate about originalism, and the history behind language that we've had for decades, if not centuries, without having some thought about where we stand today."
Barrett: 'I'm not hostile to the ACA'
Sen. Dick Durbin, D-Ill., expressed concern that Barrett's previous writings that were critical of the Affordable Care Act signal that she would vote to dismantle the law when the Supreme Court rules on it in an upcoming case.
"I think that your concern is that because I critiqued the statutory reasoning that I'm hostile to the ACA, and that because I'm hostile to the ACA, I would decide a case a particular way," Barrett said. "I'm not hostile to the ACA. I'm not hostile to any statute that you pass."
Democrats again tell stories of Obamacare recipients
Like many did on Monday, several Democrats on the committee have told stories of constituents who rely on Obamacare for their medical conditions and have shown images of them on large easels inside the hearing room for Barrett — and the public — to see.
Saying they fear Barrett's confirmation would lead to the demise of the 2010 health care law, the Democrats' strategy is to show real people who would suffer if they lost their health insurance provided by the Affordable Care Act. The Supreme Court is set to hear oral arguments in a case challenging the law on Nov. 10.
Panel will take a 30-minute break after Durbin, Lee finish questions, Graham says
Graham announced a 30-minute lunch break after Sens. Dick Durbin, D-Ill., and Mike Lee, R-Utah, conclude their questions. If both senators use their full allotted time, the lunch break will begin at around noon.
'That's impressive': Cornyn praises Barrett as she shows she has no notes in front of her
Sen. John Cornyn, R-Texas, asked Barrett to hold up the notepad on the table in front of her and asked if it said anything on it.
Barrett said it just showed the U.S. Senate letterhead, but nothing was written on it.
"That's impressive," Cornyn said, given that many witnesses testifying before lawmakers take notes or have notes in front of them.