Takeaways from Day 3 of the Amy Coney Barrett confirmation hearings

By Alex Rogers, CNN

    (CNN) -- Supreme Court nominee Amy Coney Barrett faced the Senate Judiciary Committee on Wednesday for likely the last time before the Senate votes to confirm her in two weeks.

Barrett again declined to preview how she would rule on potential cases during her confirmation hearing, as she did for the previous two days, seeking to portray herself as an independent judge without an agenda.

Here are some takeaways from the third day of the hearings:


Graham pushes idea that Barrett would support keeping Obamacare

Judiciary Committee Chairman Lindsey Graham seemed to suggest that Barrett would vote to uphold the Affordable Care Act in an upcoming case because of a judicial principle known as severability, defending himself from political attacks in his tough reelection race against Democrat Jaime Harrison.

Barrett explained that the question before the court is whether a section of the ACA can be "severed" if the statute is deemed unconstitutional, or whether the whole law would have to fall, as the Trump administration and several GOP-led states argue.

"The presumption is always in favor of severability," said Barrett.

The exchange between the South Carolina Republican and Barrett at the start of Wednesday's session indicated that Democrats' health care-focused attacks on Barrett's nomination have been politically effective.

"This hearing has been more about Obamacare than it has you," said Graham.

"From a conservative point of view, generally speaking, we want legislative bodies to make laws, not judges," Graham said later. "Would it be further true that if you can preserve a statue you try to, to the extent possible?"

"That is true," Barrett responded.

"That's the law, folks," Graham responded.

Democrats go in the other direction on Obamacare

Democrats were not deterred by Graham's suggestion that Barrett would uphold the ACA.

California Sen. Dianne Feinstein, the Judiciary Committee's top Democrat, also asked the nominee about the severability doctrine. Barrett explained to Feinstein that the doctrine was like a game of "Jenga," where a court must decide whether a law can stand if it pulls out part of it.

Barrett told her that severability "serves a valuable function of trying not to undo your work when you wouldn't want a court to undo your work."

Vermont Democratic Sen. Patrick Leahy said that Barrett had not written or spoken in defense of the ACA but had publicly criticized the court and Chief Justice John Roberts for voting to uphold sections of it. Barrett said on Wednesday she had previously spoken as an academic rather than as a judge, and had "never had occasion to speak on the policy question."

Barrett later told Minnesota Democratic Sen. Amy Klobuchar, "I have no animus to, or agenda for, the Affordable Care Act."

Barrett says 'no one is above the law' but declines to say whether Trump can pardon himself

Leahy also pressed Barrett on whether Trump can pardon himself as he claims. Barrett said, "No one is above the law," but declined to answer the question, saying it "has never been litigated."

"That question may or may not arise but it's one that calls for legal analysis of what the scope of the pardon power is," said Barrett. "So 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."

Barrett says case finding constitutional right to contraceptives is "very, very, very, very, very, very unlikely to go anywhere"

Delaware Democratic Sen. Chris Coons asked Barrett if she agreed with her mentor and former boss, the late Justice Antonin Scalia, that Griswold v. Connecticut, which established that married couples have a right to obtain and use contraception in the privacy of their own home, was wrongly decided.

Barrett responded that the Griswold precedent is "very, very, very, very, very, very unlikely to go anywhere."

She explained that it's "unthinkable that any legislature would pass such a law" prohibiting the use of birth control and that it's "very unlikely" a lower court would buck the Supreme Court precedent.

Barrett said that "the only reason that it's even worth asking that question" is because the 1965 case underpins the 1973 landmark case Roe v. Wade, which found a constitutional right to abortion. "So because Griswold involves substantive due process, an area that remains subject to litigation to the country, I don't think it's an issue or case that I can opine on," she said. "But nor do I think Griswold is in danger of going anywhere."

Missouri Republican Sen. Josh Hawley said Democrats were attributing to Barrett "the worst readings and most draconian misinterpretations of Justice Scalia."

"I was under the impression that you are a different person than Justice Scalia, and that you had your own words, your own mind," he added.

Republicans confident that Barrett will be confirmed

Republican senators appeared confident on Wednesday that they will confirm the Notre Dame law professor and judge on the 7th US Circuit Court of Appeals by the end of the month, giving conservatives a strong 6-3 majority on the Supreme Court.

"The last three days of hearings have revealed very good news," said Texas Sen. Ted Cruz. "Judge Barrett is going to be confirmed by this committee, and by the full Senate."

The Judiciary Committee will meet at 9 a.m. ET Thursday to vote on Barrett's nomination, and Republican members will have enough members present for a quorum. Democrats will use their power under committee rules to delay the vote until October 22, according to a Senate GOP aide.

After that is all finished, the committee will hold the fourth day of the hearings, with testimony from outside witnesses for and against Barrett's confirmation.

Barrett is not expected to appear again after what will have been over 20 hours of questioning from senators Tuesday and Wednesday.

Perhaps her most candid moment was when she admitted to having a glass of wine on Tuesday evening, after an 11-hour hearing.

"I will tell you that I needed that at the end of the day," she said to laughter.

Connecticut Democratic Sen. Richard Blumenthal replied: "Let me just say, on that kind of point, you have a right to remain silent."

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By Jeremy Herb, CNN

    (CNN) -- Democrats and Republicans both sought to get a better understanding about how Supreme Court nominee Amy Coney Barrett may rule on a challenge to the Affordable Care Act that the high court will hear next month, dancing around the key legal issues surrounding the case.

Both Senate Judiciary Chairman Lindsey Graham and Sen. Dianne Feinstein, the panel's top Democrat, asked Barrett about the legal doctrine of "severability," or whether the entire law can stand if one part of it is deemed unconstitutional, during Barrett's second day of questions before the committee on Wednesday.


It's a concept that could play a key factor in the case from Republican attorneys general and the Trump administration seeking to strike down the Affordable Care Act case next month, arguing that the entire law -- also short-handed as Obamacare -- should be struck down because the law's individual coverage mandate is unconstitutional.

Barrett explained to Feinstein, a California Democrat, that severability was like a game of "Jenga."

"If you picture severability being like a Jenga game, it's kind of like, if you pull one out, can you pull it out while it all stands? If you pull two out, will it all stand?" Barrett asked. "Severability is designed to say well would Congress still want the statute to stand even with the provision gone?"

Graham, during his questioning of Barrett, seemed to suggest he thought that the Affordable Care Act could be saved because of severability, saying the doctrine's "goal is to preserve the statute if that is possible."

"From a conservative point of view, generally speaking, we want legislative bodies to make laws, not judges," Graham said, before asking Barrett, "Would it be further true, if you can preserve a statue you try to, if possible?"

"That is true," Barrett said.

"That's the law folks," Graham responded.

Graham, who is his a tough reelection fight this year, nevertheless launched into another attack on former President Barack Obama's signature health care law, saying, "Obamacare is on the ballot."

The South Carolina Republican praised Barrett's record, comparing her to Obama's nominees Justices Sonia Sotomayor and Elena Kagan, calling Barrett the first woman nominated to the high court who is "unashamedly pro-life."

Democrats get their last chance to try to pin down Trump's nominee Wednesday with a second lengthy day of questions in the Senate Judiciary Committee confirmation hearings.

Barrett spent more than 11 hours before the committee on Tuesday, where Democrats pressed her on everything from the upcoming Supreme Court case challenging the Affordable Care Act to whether she would recuse herself on election disputes involving the President that might reach the high court.

On Wednesday, the 22 senators on the Judiciary Committee get a second round of 20 minutes for more questions to the nominee. The committee has scheduled a hearing Thursday to hear from outside witnesses and then is expected to vote on Barrett's nomination next week, putting her on pace for a Senate floor vote by the end of the month -- and ahead of the November 3 election.

Barrett made few missteps during the first round of questions Tuesday, while frequently declining to answer questions about potential cases or past rulings -- citing a standard named for the confirmation hearing of the justice she would replace, the late Ruth Bader Ginsburg.

Barrett also declined to engage with multiple questions from Democrats on whether she agreed that the court's landmark abortion case, Roe v. Wade, had been correctly decided or if the ruling was a precedent that should not be dismantled.

But questions about health care were the most urgent for Democrats, as Barrett could be sitting on the high court when it hears a challenge to the Affordable Care Act on November 10, a week after the election.

On Tuesday, Democrats challenged Barrett's views on the Affordable Care Act and made personal pleas for her to take into account people who could lose their health care coverage if the court strikes down President Barack Obama's signature law.

Democrats argued that Barrett's criticisms of Chief Justice John Roberts' 2012 ruling to uphold Obamacare, which she made before she was appointed to the federal appeals bench in 2017, were a sign that she would try to overturn it.

Barrett insisted that was not the case, saying she had no agenda when it came to the health care law. "I am not here on a mission to destroy the Affordable Care Act," she said. "I'm just here to apply the law and adhere to the rule of law."

Democrats also criticized the President and Senate Republicans for rushing through Barrett's confirmation in the middle of the presidential election and the Covid-19 pandemic.

Republicans have defended Barrett and her qualifications for the high court, accusing Democrats of trying to score political points by attacking her over health care.

Graham charged Tuesday that "Obamacare has been a disaster for the state of South Carolina."

"We want something better. We want something different," Graham said.

Barrett said she had not discussed any potential Supreme Court cases with the President, his advisers or Senate Republicans during the nomination process. "I've made no commitment to anyone, not in this Senate, not over at the White House, about how I would decide any case," she said.

Democrats sought to tease out more about her views on a number of issues, raising concerns that a high court with Barrett on the bench would endanger abortion rights, gun control laws, voting rights and same-sex marriage, noting that her mentor, the late Antonin Scalia, was in the minority for the Supreme Court's 5-4 decision in 2015 legalizing same-sex marriage.

Barrett largely avoided commenting on those topics, saying they were issues that could be heard before the high court so it would be inappropriate for her to discuss them.

This story has been updated with additional developments Wednesday.

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