By LIBBY CATHEY, ABC News
(WASHINGTON) — The high-stakes confirmation hearings for Judge Amy Coney Barrett continued Tuesday with the Supreme Court nominee facing questions for more than 11 hours.
Senate Republicans are keeping up their push for a final vote before Election Day despite Democratic calls to let voters decide who should pick a new justice.
Trump nominated Barrett to fill the seat left by the late Justice Ruth Bader Ginsburg.
The four days of Senate Judiciary Committee hearings are unprecedented, with some members participating virtually and in-person. Barrett is appearing at the witness table to face questions.
Hearings begin at 9 a.m. each day and will be live streamed on ABC News Live.
In opening statements Monday, Democrats argued the nomination puts the health care of millions of Americans at risk amid an ongoing pandemic and some called on Barrett to recuse herself from any presidential election-related cases. Republicans, who say they already have the votes to confirm Trump’s pick, defended Barrett’s Roman Catholic faith from attacks which have yet to surface from inside the hearing room.
Barrett, 48, was a law clerk to conservative Justice Antonin Scalia and follows his originalist interpretation of the Constitution. She practiced law at a Washington firm for two years before returning to her alma mater, Notre Dame Law School, to teach. She was nominated by Trump in 2017 to the Seventh U.S. Circuit Court of Appeals and confirmed by the Senate in a 55-43 vote.
Oct 13, 8:40 pm
Committee adjourns after more than 11 hours of questioning
After more than 11 hours — and not a single note in sight in front of Barrett on her witness table — Graham adjourned the second day of hearings about 8:15 p.m. after expressing pleasant surprise with the civility in the proceedings so far and complimenting the nominee.
“You have been very patient, very poised and I really appreciate the way you have handled yourself,” he told Barrett. “I quite frankly think this has been a good example of what can be in the Judiciary Committee — challenging questions on things that matter to people and a way you can leave the arena saying, well, that worked pretty well,” Graham said.
Barrett’s confirmation hearings continue Wednesday at 9 a.m. for another round of questioning from the committee’s 22 senators with each getting 20 minutes apiece.
-ABC News Trish Turner
Oct 13, 8:11 pm
Barrett says people don’t want to live under ‘the law of Amy’
As with Republicans before her, Sen. Marsha Blackburn, R-Tenn., gave Barrett the opportunity to explain the reasoning behind her originalist approach to interpreting the Constitution.
“Judges are not policymakers. We live in a pluralistic society where we have lots of different views on lots of different matters,” Barrett said.
“So, who am I or who is any judge to say that their result — ‘oh, just this once I will reach the result that seems the best even if runs against the law that the people have ratified,"” Barrett said. “And so, it would be wrong because I don’t think people — I think I said earlier — want to live under the law of Amy. We have the United States Constitution and that’s what judges should be faithful to,” she said.
“I think probably the law of Amy prevails at the Barrett household over those children?” Blackburn said with a smile.
“50/50,” Barrett joked.
Oct 13, 8:43 pm
Barrett says ‘I am not ‘a liar,’ would not violate judge’s oath to be impartial
Sen. John Kennedy, R-La., fired back at Harris in his line of questioning, claiming that Sen. Kamala Harris, D-Calif., had called Barrett a “liar” when, while she did not use the word, strongly implied that Barrett would not be impartial as she said she would be when it came to considering abortion rights and the ACA.
Kennedy led Barrett through the wording of the Supreme Court oath to administer the law in an impartial manner.
“Are you going to take that oath and affirm it if you are confirmed?” he questioned. “Not lying?”
“Yes,” Barrett replied. “Not lying. I took that oath before I began as a judge in the Seventh Circuit. I’ve never violated that oath. I would take it again. Oaths are serious to me.”
“Senator Harris just called you a liar,” Kennedy quipped back. “She said if you take that oath, you would be lying. That you have already made up your mind on how you will vote on some cases, particularly dealing with abortion and the Affordable Care Act. Let’s cut to the chase. She said you are a liar. Are you a liar?
“I am not a liar,” Barrett replied.
“I want you to tell me again. Look me in the eye. You’re in front of God and country. If you take that oath, will you meet it?” Kennedy asked.
“I will,” Barrett answered.
“Do you swear to God?” he said.
“I swear to God. I have sworn at the Seventh Circuit. I meant it there too,” she said.
“You will never break that oath? No matter what your personal feelings are? No matter what your religion is?” he continued.
“No matter what my religion is,” she said.
“When Senator Harris and her colleagues say you are a liar, they are wrong?” he finally asked.
“They are,” Barrett said.
Though Barrett has been careful about providing her personal view on abortion, repeatedly citing her responsibility to be impartial as a sitting judge, when asked directly by Kennedy if she has a view on it, Barrett confirmed, “I do have personal feelings about abortion.”
Oct 13, 7:51 pm
Harris: “Suggest that we not pretend that we don’t know how this nominee views a women’s right to choose’
The Democratic nominee for vice president, Sen. Kamala Harris, D-Calif., appearing virtually, opened her line of questioning with a 10-minute defense of the Affordable Care Act, arguing Republicans are confirming Barrett before the election so they can achieve their goal of getting the court to strike down the health care law.
She asked Barrett when she wrote the article which criticized the majority decision of Chief Justice Roberts to uphold the Affordable Care Act, homing in on the timeline.
Barrett said she didn’t remember when she wrote it, but Harris responded that Trump nominated Barrett to the Seventh Circuit court five months after the article was published.
“In other words, the Affordable Care Act and its protections hinge on this seat,” Harris claimed. “You’ve already opined the constitutionality of the Affordable Care Act. And that position satisfied the president’s promise to only nominate judges who would tear down the Affordable Care Act.”
Harris also asked if she was aware of Trump’s statements committing to nominate judges who would strike down the Affordable Care Act before she was picked — to which Barrett said she didn’t recall.
“I want to be very very careful. I’m under oath. As I’m sitting here, I don’t recall seeing those statements,” Barrett said.
Highlighting the real-world impact of the health care law, as her Democratic colleagues had before her, Harris then asked, “Would you consider the 135 million people who gained protection under the Affordable Care Act when deciding the case that challenges that law?”
“Senator Harris, if I were to be confirmed and conclude that I was not — I was able to sit on the case pursuant to the recusal statute and heard the case and decided the case, I would consider all the protections that Congress put in place,” Barrett said.
Harris ended her questioning by arguing Barrett has been much less forthcoming than Justice Ginsburg was in her confirmation hearing, specifically when it came to legislation involving reproductive rights, but said the American people should be familiar with Barrett’s views by now.
“I would suggest that we not pretend that we don’t know how this nominee views a women’s right to choose,” she added, referring to Roe v. Wade.
Oct 13, 3:31 pm
Barrett: Won’t be used as a ‘pawn to decide this election,’ but declines to commit to recusal
Sen. Chris Coons, D-Del., noting what President Trump has said on needing nine justices on the Supreme Court by the November election to decide any election-related disputes, asked Barrett if she will commit to recusing herself from those cases.
“Given what President Trump said, given the rest of the context of this confirmation, will you commit to recusing yourself from any case arising from a dispute in the presidential election results three weeks from now?” Coons asked.
“Thank you for giving me the opportunity to clarify this,” Barrett began. “And I want to be very clear for the record and to all members of this committee that no matter what anyone else may think or expect, I have not committed or signaled, never even written — I’ve had a couple of opinions that have been around this law, but I haven’t even written anything that I would think anybody could reasonably say this is how she might resolve an election dispute.”
“I would consider it, and I certainly hope that all members of the committee have more confidence in my integrity then to think that I would allow myself to be used as a pawn to decide this election for the American people,” Barrett continued.
“That would be on the question of actual bias, and you asked about the appearance of bias and you’re right that the statute does require a justice or judge to recuse if there is an appearance of bias. And what I will commit to every member of this committee, to the rest of the Senate and to the American people is that I will consider all factors that are relevant to that question that requires recusal when there’s an appearance of bias,” she said.
Barrett went on to say she would discuss that with the other justices were a dispute to arise.
“Justice Ginsburg said it is always done with consultation of the other justices. So, I promise you that if I were confirmed and if an election dispute arises, both of which are if, that I would very seriously undertake that process and consider every relevant factor. I can’t commit to you right now for reasons that we’ve talked about before, but I do ensure you of my integrity and that I would take that question very seriously,” she said.
Oct 13, 3:00 pm
Barrett: ‘My boss is the rule of law’
Republicans continued to question Barrett on her impartiality, with Sen. Ben Sasse of Nebraska asking Barrett to confirm that judges can make decisions without imposing their own views.
“I hope that’s what people think because that’s what I have always driven to do. In my time as a judge, my job, my boss is the rule of law, not imposing my policy preferences,” Barrett said.
Barrett was then asked to explain why judges wear black robes in our judicial system, in another opportunity to emphasize her commitment to the law, not her personal views in a courtroom.
“Chief Justice John Marshall started the practice in the beginning. Justices used to wear colorful robes that identified them with the schools they graduated from. John Marshall decided to wear a simple black robe. Pretty soon the other justices followed suit and now all judges do it,” Barrett said, before offering her take on the garb.
“I think the black robe shows that justice is blind. We all dress the same. It shows once we put it on, we are standing united symbolically, speaking in the name of the law, not speaking for ourselves as individuals,” she said.
Oct 13, 2:55 pm
Protesters and supporters gather again on Day 2
Demonstrators protested the Senate Judiciary Committee hearing outside the Supreme Court Tuesday. One group wore masks and waved signs that featured Justice Ruth Bader Ginsburg’s “dissenting collar.”
Outside the Senate office building where Barrett’s confirmation hearing was taking place, some of her supporters were praying.
Oct 13, 2:17 pm
Barrett: Roe v. Wade not a universally-accepted ‘super-precedent’
Under questioning from Sen. Klobuchar, Barrett said Roe v. Wade is not a “super-precedent” — so it could theoretically be overturned by the Supreme Court.
Earlier, Barrett said that Brown v. Board of Education, which established that racial segregation in schools is unconstitutional, is one of just a handful of cases she and some others consider to be “super-precedent” or settled law.
“Is Roe a super-precedent?” Klobuchar asked, before Barrett asked in return, “How would you define ‘super-precedent?’”
“I’m asking you,” Klobuchar said.
“People use super-precedent differently. The way that I was using it in the article that you’re reading was to define cases that are so well-settled that no political actors … seriously push for their overruling. I’m answering a lot of questions about Roe v. Wade which I think indicates Roe v. Wade doesn’t fall in that category. Descriptively means it’s a case, not a case that everyone has accepted,” Barrett said.
Oct 13, 11:56 am
Durbin presses Barrett on gun rights, civic rights
Sen. Dick Durbin, D-Ill., homed in on Barrett’s dissent in Kanter v. Barr, a gun rights case from 2019. Barrett was the lone dissenter when a Seventh Circuit panel majority rejected a Second Amendment challenge from a man, Ricky Kanter, found guilty of felony mail fraud and prohibited from possessing a gun under federal and Wisconsin law.
Barrett argued non-violent felons shouldn’t be banned for life from gun ownership, writing in her dissent that the Second Amendment “confers an individual right, intimately connected with the natural right of self-defense and not limited to civic participation.”
Knowing this, Durbin asked Barrett about the differentiation she made in Kanter between felon voting rights and gun ownership.
“You are saying a felony should not disqualify Ricky [Kanter] from buying an AK-47 but using a felony conviction to deny them the right to vote is all right?” Durbin asked.
Barrett answered confidently but provided little insight into what her Kanter decision might mean for future voting rights cases.
“Senator, what I said was that the Constitution contemplates that states have the freedom to deprive felons of the right to vote. It is expressed in the constitutional text, but I expressed no view whether it was a good idea, whether states should do that. I didn’t explore in that opinion because it was completely irrelevant to what limits, if any, there might be on a state’s ability to curtail felon voting rights,” she said.
Oct 13, 11:37 am
Barrett on her family’s reaction to George Floyd video: ‘We wept together’
Sen. Dick Durbin, D-Ill., asked Barrett if she’s seen the video of George Floyd dying in police custody. She said yes.
“What impact did it have on you?” he then asked.
Barrett paused for a moment before answering.
“Senator, as you might imagine, given that I have two Black children, that was very, very personal for my family,” she began.
“Jesse was with the boys on a camping trip out in South Dakota, so I was there and my 17-year-old daughter Vivian, who is adopted from Haiti, all of this was erupting and it was very difficult for her. We wept together in my room and it was also difficult for my daughter, Juliette, who is 10. I had to try to explain some of this to them,” she continued.
“My children to this point in their lives have had the benefit of growing up in a cocoon where they haven’t experienced hatred or violence. For Vivian to understand there would be a risk to her brother or the son she might have one day of that kind of brutality has been an ongoing conversation. It is a difficult one for us like it is for Americans all over the country,” Barrett said.
Durbin then acknowledged how some Americans don’t teach children the history of slavey while others say there is implicit bias in aspects of American life and many argue racism is systematic.
“How do you feel?” he asked Barrett.
“I think it is entirely uncontroversial that racism persists in our country. As to putting my finger on the nature of the problem, whether as you say it’s just outright or systemic racism, or how to tackle the issue of making it better those things, you know, are policy questions,” she said, avoiding a clear answer.
“They are hotly contested policy questions that have been in the news and discussed all summer. So while, you know, as I did share my personal experience very happy to be discussed the reaction our family had to the George Floyd video, giving broader statements or making broader diagnoses about the problem of racism is kind of beyond what I’m capable of doing as a judge,” she said.
Durbin replied, “Well, I would doubt that. 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.”
Oct 13, 11:22 am
Barrett stresses she’s an ‘independent’ judge
Sen. John Cornyn, R-Texas, deeming the battle in the hearing room “ACA versus ACB,” said predictions from Democrats about how nominees will make decisions is “propaganda in order to try to make a political point.”
“So judge,” he asked, “you’re not willing to make a deal?”
“No, Senator Cornyn,” Barrett replied emphatically. “I’m not willing to make a deal, not with the committee, not with anyone. I’m independent.”
In what became something of a civics lesson, Cornyn asked Barrett why she thinks the American people agree to surrender their right to self-govern and instead live under their elected representatives, the Constitution and “nine people who don’t run for election and who serve for life — why in the world should the American people do that?”
“I think part of the rationale for courts adhering to the rule of law and for judges taking great care to avoid imposing their policy preferences is that it’s inconsistent with democracy. Nobody wants to live with the ‘law of Amy.’ My children don’t even want to do that. I can’t as a judge get up on the bench and say you are going to live by my policy preferences because I have life tenure and you can’t kick me out if you don’t like them,” Barrett said.
Asked if she agrees with the belief of Justice Scalia that to be a good and faithful judge, one must resign themselves to the fact that they may not always like the conclusions reached, Barrett said yes.
“It is your job to pass the statutes. It is your job to choose policy. Then it’s my job to interpret those laws and apply them to facts of particular cases,” Barrett said. “They don’t always lead me to results that I would reach if I were queen of the world and I could say ‘you win, you lose or this is how I want it to be’ because I just don’t have the power to impose my policy preferences or choose the result I prefer. That’s just not my role. I have to go with what you guys have chosen.”
Oct 13, 11:11 am
Leahy presses Barrett on impartiality, raises ‘right to life’ 2006 newspaper ad she signed
Sen. Patrick Leahy, D-Vt., after launching a line of questioning on the Affordable Care Act, which Barrett largely avoided, focused on Barrett’s impartiality as he says Trump has put her and the court “in the worst of positions.”
“Are you able to commit to recuse yourself from if it arises out of the 2020 presidential election?” Leahy asked.
Barrett said she would consider questions of appearance but that she can’t offer a legal conclusion right now on whether she would ultimately recuse herself from election-related cases.
“I commit to fully apply the law of recusal and to consider any appearance question. I will apply the factors that other justices have before me in determining whether it requires my recusal. I can’t offer a legal conclusion about the outcome of the decision I would reach right now,” Barrett said.
Leahy also asked Barrett about a 2006 newspaper advertisement she had signed onto opposing “abortion on demand” but did not disclose in her 2017 appeals court confirmation hearing, Right to Life of St. Joseph County, Indiana. Leahy said the group likened in vitro fertilization to manslaughter in the ad and asked for her subsequent views.
“I signed the statement that you and I have just discussed and you are right that the St. Joseph County Right to Life ran an ad on the next page, but I don’t even think the IVF view you’re expressing was on that page. Regardless, I have 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,” Barrett said.
“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 added.
Oct 13, 9:23 am
Barrett lays out originalist interpretation of the law
Graham posed the first question to Barrett, asking her about her judicial philosophy, giving Barrett the opportunity to share her view that the courts are not meant to right every wrong in society.
“You said you are an originalist, is that true? What does that mean in English?” he asked.
“In English,” Barrett began, “that means that I interpret the Constitution as a law, that I interpret its text as text, and the meaning doesn’t change over time and it is not up to me to update it or infuse my own policy views into it.”
Asked about what she would say to people who call her a “female Scalia,” Barrett said while he was her mentor, she is not him.
“I would say that Justice Scalia was a mentor. As I said when I accepted the president’s nomination that his philosophy is mine, too. He was a very eloquent defender of originalism and it was also true of textualism, which is the way that I approach statutes and their interpretation and similarly to what I just said about originalism,” she said.
“If I’m confirmed, you would not be getting Justice Scalia, you would be getting Justice Barrett,” she said.
Oct 13, 9:21 am
Senators appear virtually and in-person as questioning kicks off
The first question and answer round in the confirmation hearings for Judge Barrett has kicked off in the Senate Judiciary Committee with Chairman Graham opening the proceedings.
Barrett, who wore a black mask for five hours Monday, took it off at the witness table in anticipation for the rapid-fire round.
Sen. Thom Tillis, R-N.C., who appeared virtually Monday due to his recent COVID-19 diagnosis, appeared in-person Tuesday with what he said was clearance from his personal physician. Tillis joins Sen. Mike Lee, R-Utah, who also recently tested positive for COVID-19, inside the hearing room.
Democrats on Monday used their opening statements to highlight the stakes of Barrett’s confirmation — which would give conservatives a 6-3 majority on the Supreme Court and potentially imperil elements of the Affordable Care Act, as a challenge to the Obama-era law is scheduled to come before the court in November.
Republicans repeatedly returned to Barrett’s Catholic faith, launching a pre-emptive strike against Democrats potentially criticizing her on the grounds of her religion.
Barrett’s family, as they did Monday, took seats in the audience.
Oct 13, 8:58 am
Barrett arrives on Capitol Hill
Barrett arrived on Capitol Hill about 8:30 a.m. Tuesday with her children and extended family following in a line behind her.
The first question and answer round in the confirmation hearings for Judge Barrett will kick off shortly in the Senate Judiciary Committee.
Oct 13, 8:24 am
Breakdown for Day 2
Senators will have the opportunity to grill Judge Barrett Tuesday on her judicial philosophy in what is expected to be a marathon question and answer session. Committee aides tell ABC News to expect the day to last between nine and 12 hours.
All 22 members of the Senate Judiciary Committee are allotted 30 minutes each to question the nominee in the first round, making the total run time 11 hours — but Graham may decide to break up round one of questioning into Wednesday.
Graham will give an introduction and swear in Barrett around 9 a.m. to begin the hearing.
Democrats are expected to press Trump’s nominee on the Affordable Care Act and the precedent of Roe. v. Wade.
Oct 13, 7:35 am
Barrett’s friend and colleague: Be careful about ‘too many assumptions’
Nicole Garnett, a friend and colleague of Judge Barrett who has known her since they both served as law clerks for Supreme Court justices, said Barrett has the qualifications and characteristics that will make her an “amazing justice.”
“She’s got a great legal mind, she’s a person of great character, a person of humility, she’s kind to everyone, she’s compassionate, she impresses everybody, she works harder than everybody else,” Garnett said during an interview on ABC News Live.
Garnett, a law professor at the University of Notre Dame, had just started a clerkship with Justice Clarence Thomas in 1998 when she met Barrett, who was clerking for Justice Antonin Scalia.
Barrett has said her philosophy is that of Scalia’s, which is to apply the law as written as she sees it — but Garnett warned that the public “should really be careful before we make too many assumptions about people based on the party of the president who nominated them.”
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