Amy Coney Barrett's confirmation hearing: Day 3

Senators on the Judiciary Committee had a second opportunity to ask Supreme Court nominee Amy Coney Barrett questions today.

The committee asked her questions for nearly 18-hours over the course of two days.

Committee members will now enter a closed session to discuss Barrett’s FBI background check, which is part of the confirmation process.

Senators will meet at 9 a.m. Thursday for a business meeting to vote on Barrett's nomination.

In case you missed it, here are some of the highlights from the hearing:

• On the Affordable Care Act: After facing a barrage of questions over the past two days from Democrats about her past writings and a comment where she took issue with rulings upholding the Affordable Care Act, Barrett was asked today: “Did you ever write or speak out against the ACA?” Barrett said her past criticism of ACA rulings was when “I was speaking as an academic.” When asked if she’s ever spoken in favor of the ACA, she said, “No, I’ve never had a chance to weigh in on the policy question.”
• On cameras in the court: Barrett was asked how she feels about allowing cameras into the Supreme Court, which historically has not allowed recordings but is currently allowing a live feed of audio as justices work remotely during the pandemic. Barrett agreed to “keep an open mind” about the possibility.
• On presidential pardons: Barrett said that "no one is above the law," but would not say one way or another if a president has the right to pardon him or herself. On pardons, she said, “that question has never been litigated” and said she couldn’t answer “because it would be opining on an open question when I haven’t gone through the judicial process to decide it, it’s not one in which I can offer a view.”
• On voting: Sen. Amy Klobuchar asked Barrett about whether mail-in voting was essential for millions of Americans in the middle of the coronavirus pandemic. Barrett did not engage, saying she did not recall if she had previously voted by mail. "That's a matter of policy on which I can't express a view," Barrett said.
• On climate change: When asked by Sen. Kamala Harris if she thought climate change is happening, Barrett declined to answer, saying, "I will not express a view on matter of public policy, especially one that is politically controversial that is inconsistent with the judicial rule, as I explained."

Democratic vice presidential nominee Sen. Kamala Harris started her second round of questioning during Supreme Court nominee Amy Coney Barrett’s confirmation by walking through the 1965 Voting Rights Act and the Supreme Court’s 2012 ruling striking down a key part of the law. 

Harris asked Barrett whether she agreed with Chief Justice John Roberts’ writing in the opinion that “voting discrimination still exists, no one doubts that.”

Barrett would not engage on the question, saying it was one that could come before the court.

“Sen. Harris I will not comment on what any justice said in an opinion, whether an opinion is right or wrong, or endorse that proposition,” Barrett said.

When Harris asked her about it a second time, Barrett said, “I think racial discrimination still exists in the United States."

“I don’t mean to signal I disagree with the statement either, what I mean to say is I’m not going to express an opinion because these are very charged issues, they have been litigated in the courts, and so I will not engage on that question,” Barrett said.

The Senate Judiciary Committee is expected to meet at 9 a.m. Thursday to mark up the nomination of Amy Coney Barrett to the Supreme Court, according to a GOP aide.

The GOP will have enough members for a quorum, the aide said.

Democrats are expected to use their power under the committee rules to delay the vote for one week, according to the aide. The vote should occur on Oct. 22.

After both sides argue for a bit tomorrow, the committee will hear testimony from outside witnesses, the aide said.

What to expect: Americans should expect to hear a lot of criticism from Democrats about this truncated processes, which typically takes two to three months but they are on pace to get it done in just over a month’s time and days before the election.

For much of the hearings, six of Judge Amy Coney Barrett’s seven children have been in attendance to witness their mother’s hearing.

Today, Barrett said that one of her son’s “got very upset yesterday during the questioning.” 

Barrett had introduced the country to Liam as “smart, strong and kind,” she said, “to our delight, he still loves watching movies with Mom and Dad.” 

She has expressed concerns about the impact of her confirmation before calling the process “excruciating” at times. 

Here's a portion of her exchange with Sen. Thom Tillis:

Tillis: I asked you when we met why would you do this knowing how this was going to play out, knowing that you were going to be attacked and unfairly treated, and I think to a level of where maybe some of your constitutional rights have been questionably denied. So, why are you doing this, Judge Barrett? Why not just say thanks but no thanks, leave it for someone else? 

Barrett: Well, as I said to Sen. Graham yesterday, and I think this was part, you know, in parts of the conversation that you and I had, that this is a very difficult process, actually, I think I used the word excruciating, over the weeks. And knowledge that people are going to say horrible things, you know, that your entire life will be combed over, that you will be mocked, that your children will be attacked. And so one might wonder why and sane person would undertake that risk and that task unless it was for the sake of something good. And as I said yesterday to Sen. Graham, I do think the rule of law and its importance in the United States, and I do think the role of the Supreme Court is important, it’s a great good. It would be difficult for anybody in this seat, I think everybody knows the confirmation process is very difficult. And so, for me to say no, I mean other people could do this job, but the same difficulty will be present for everyone. And so, for me to say I’m not willing to undertake it even though I think the system is important would be a little cowardly. And, you know, I wouldn’t be answering a call to serve my country in the way that I was asked. I also think in our conversation I said that, you know, my children were part of the reason not do it, because, you know, my son Liam got very upset yesterday during the questioning. And so, we had to call him in the car, he didn’t stick it out until the end. You know, I was surprised he stuck it out as long as he did. But Liam got very upset at the questioning, and Sen. Kennedy referenced some of the other things that happened to the children in the process. And so, I said to you that before any of that happened that in many ways the children are the reason not do it. But they're also the reason to do it, because if we are to protect our institutions and protect the freedoms and protect the rule of law that's the basis for the society and freedom that we all enjoy, if we want that for our children and children's children, then we need to participate in that work."

 

As they did yesterday, Democrats are continuing to push Judge Amy Coney Barrett on a 1965 case called Griswold v. Connecticut establishing that married couples have a right to obtain and use contraception in the privacy of their own home. 

Griswold comes up in most every confirmation hearing because of its legal underpinnings concerning the “right to privacy” surfaced again in Roe v. Wade in 1973.

The Democrats, including Sen. Chris Coons and Sen. Richard Blumenthal, among others, suggest that Barrett should easily be able to say that Griswold was correctly decided.

But she is not doing so, likely because she fears the next question is whether Roe v. Wade was correctly decided.

Barrett told Coons that she thinks Griswold is “very, very, very, very, very, very, very, very, unlikely” to be overturned. 

Coons pointed out that he thought Chief Justice John Roberts, Samuel Alito, Brett Kavanaugh and Elena Kagan went further than Barrett.

Barrett said she thinks the question is “entirely academic” and that the “only reason” that It’s even worth asking “is to lay a predicate for whether Roe was right decided” and she does not want to telegraph her thoughts on that.

The hearing room audio system is out for the second time today, forcing another break. 

The mics went out earlier causing a 40-minute delay in Judge Amy Coney Barrett's confirmation hearing.

Answering questions about voting from Sen. Amy Klobuchar, Judge Amy Coney Barrett said she “can’t recall a time” she voted by mail.

The comment came as the US prepares for the November election, and many Americans are choosing to vote by mail as the coronavirus pandemic continues to grip the nation.

Here's the exchange:

Klobuchar: We're in the middle of a global pandemic that is forcing voters to choose between their health and their vote. Are absentee ballots, or better known as mail-in ballots, an essential way to vote for millions of Americans right now? 

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

Klobuchar: Okay, to me that just feels like a fundamental part of our democracy. But okay, let's try this. Have you ever voted by mail? 

Barrett: Umm, I can't recall a time that I voted by mail. It may be in college that I did, when I was living away from home. But I can't as I'm sitting here specifically recall a time I voted by mail.

Klobuchar: Do you have friends or family that have voted by mail or are voting by mail? 

Barrett: I have had friends and family vote by mail.

The hearing has gone into a 10-minute recess following what appeared to be a malfunction in Judge Amy Coney Barrett's mic.

Chair Lindsey Graham said the hearing would return shortly once the issue was resolved.

The Senate Judiciary Committee has returned from break to continue questioning Supreme Court nominee Amy Coney Barrett.

Senators are now asking Barrett questions.

Each senator on the committee will get 20 minutes to question Barrett. Yesterday, on the first round of questioning, each member had 30 minutes of question time.