Watch live: Day 3 of the Amy Coney Barrett confirmation hearings
Calm and controlled, Barrett shows in hearing why conservatives bet she’ll reshape Supreme Court
Judge Amy Coney Barrett, President Trump’s Supreme Court nominee, showed why she has been a favorite of social conservatives and how she will be a formidable figure on a court expected to move toward restricting a woman’s access to abortion and strengthening religious liberty and gun rights.
Over two days of questioning before the Senate Judiciary Committee, Barrett was calm, poised and in full control throughout, often playing the role of the law professor explaining doctrines such as severability, standing and stare decisis.
Confirmation hearings for Supreme Court nominees can be grueling and painful. Justice Brett M. Kavanaugh survived his two years ago, but he was left angry, scowling and embittered while denying allegations that he had drunkenly assaulted a girl when he was in high school.
Barrett’s hearing was a study in contrast. She politely fended off questions from frustrated Democrats who asked her to discuss her views on the issues that divide the high court. She assured senators she aspired to be a judge, not a policymaker. But they came away with no reason to doubt that she will join a 6-3 conservative majority that could stand in the way of a Democratic Congress or future Democratic presidents.
Barrett dodges Kamala Harris on climate change
Sen. Kamala Harris, in a break from the presidential campaign, tried to elicit an opinion from Supreme Court nominee Amy Coney Barrett about whether she believes climate change and race discrimination in voting still exist.
Sen. Kamala Harris, in a break from the presidential campaign, tried and failed to elicit an opinion from Amy Coney Barrett about whether she believes in climate change.
“Do you think COVID-19 is contagious?” Harris asked President Trump’s Supreme Court nominee.
“I think, yes, I do accept that COVID-19 is infectious,” said Barrett, who reportedly suffered from the disease this summer. “That’s something of which I feel like, you know, we could say, you take judicial notice of it’s an obvious fact.”
“Do you accept smoking causes cancer?” Harris asked.
Barrett, now leery of the Democratic vice presidential candidate’s line of questioning, replied, “I’m not sure exactly where you’re going with this but ... every pack of cigarettes says that smoking causes cancer.”
Then Harris pivoted to climate change: “Do you believe that climate change is happening and it’s threatening the air we breathe and the water we drink?”
Barrett, who’d earlier declined to express an opinion, saying a case on the topic could come before the Supreme Court, did not take the bait.
She told Harris, “You have asked me a series of questions that are completely uncontroversial, like whether COVID-19 is infectious or whether smoking causes cancer, and then trying to analogize that to eliciting an opinion from me about a very contentious matter. It is on a very contentious matter of public debate, and I will not do that. I will not express a view on a matter of public policy, especially one that is politically controversial.”
Booker quizzes Barrett on racial disparities in criminal justice and voting access
Sen. Cory Booker (D-N.J.) asked Judge Amy Coney Barrett which books, studies, commentaries or law review articles she has read on racial disparities in the criminal justice system.
The judge couldn’t point to anything.
“What I have learned about it has mostly been in conversations with people,” said Barrett, an appeals court judge and former Notre Dame law professor. “But it’s not something that I can say, ‘Yes, I’ve done research on this and I’ve read X, Y and Z.’”
Booker, who is Black, asked Barrett, who has two Black children, a number of race-related questions on the third day of her confirmation hearing at the Senate Judiciary Committee. Does she condemn white supremacy? She said yes. He spoke of the disproportionate number of arrests of Black people for marijuana use, and more limited access to polling places in underserved areas.
“Have you ever waited five hours to vote?” he asked her.
“I have not.”
“Have you ever waited over an hour even?”
“I have not.”
Booker urged her to study up: “I hope you understand my heart when I look at a justice, who — it seems the fix is in — is going to serve on the Supreme Court, and hasn’t taken steps to understand the pervasiveness, the facts, the truth about cases of race that are going to come before you, in a system right now that so many people feel like is unjust.”
Graham says his comment about ‘good old days of segregation’ was sarcasm
Senate Judiciary Chairman Lindsey Graham (R-S.C.) clarified remarks he made during the confirmation hearing for Supreme Court nominee Amy Coney Barrett, saying his reference to the “good old days of segregation” was made with “dripping sarcasm.”
Sen. Lindsey Graham, Republican chairman of the Senate Judiciary Committee, pushed back on criticism over comments he made during the Supreme Court nomination hearing of Amy Coney Barrett in which he asked if she knew of any efforts to return “to the good old days of segregation.”
“If you know who I am and what I said, you know that it was with deep sarcasm,” Graham told reporters during a break in the hearing. “That I suggested that some legislative body would want to yearn for the good old days of segregation is the point that I’m trying to make. There is nobody in America in the legislative arena who wants to take us back to that dark period in American history.”
Graham’s opponent in his South Carolina Senate race, Jaime Harrison, wasted no time in pumping out a news release and social media videos showing Graham asking Barrett to discuss Brown vs. Board of Education, the landmark Supreme Court ruling that ended segregation in public schools. Most experts view the case as a “super-precedent,” meaning it is so settled in the law and culture that nobody is calling for it to be overturned.
Barrett said Tuesday that she did not view Roe vs. Wade, the 1973 ruling that made abortion legal, as a super-precedent because many Americans were still fighting to overturn it.
“One of the reasons you can say with confidence that you think Brown vs. Board of Education is super-precedent is that you are not aware of any effort to go back to the good old days of segregation, is that correct?” Graham asked Barrett.
“That is correct,” Barrett replied.
A spokesman for Harrison, a Democrat, criticized Graham’s comments, saying the Republican “has proven that he’s completely out of touch with the South Carolina of today. Even as peaceful protesters demonstrate across our state for equality and justice, Lindsey can’t help but refer fondly to a time of violent oppression and segregation against African Americans.”
Democrats and Republicans offer different interpretations of Barrett’s comments on this key healthcare issue
Supreme Court nominee Amy Coney Barrett again faced questions over her views on the Affordable Care Act, as Democratic Sen. Amy Klobuchar noted that President Trump has made clear he wishes to undo the law known as Obamacare.
Republicans went to great lengths on Wednesday morning to distance Judge Amy Coney Barrett from the threat Democrats say she poses to the Affordable Care Act. But Democrats said she has already shown her hand on one of the issues in the case.
The exchanges underscored the importance both parties believe the healthcare law, and a pending court challenge to it, will have on the upcoming election. Republicans are increasingly worried that voter fears about the Supreme Court invalidating the law — including its popular protections for preexisting conditions — have become an electoral vulnerability.
In an attempt to demonstrate that Barrett is unlikely to take it down, Sen. Lindsey Graham (R-S.C.) walked her through the issue of severability, perhaps the most important issue in the upcoming Supreme Court case on the healthcare law.
The court will have to decide whether the law’s requirement that nearly all Americans have insurance — the so-called individual mandate — is now invalid because Congress made the penalty $0. The Trump administration says the provision, and therefore the entire law, should be struck down. Democrats defending the law say even if the court rules the mandate is unconstitutional, the rest of the law can stand because the provision is “severable.”
Graham asked Barrett to confirm that the “main thing” in deciding severability is a “presumption to save the statute, if possible.” She said yes.
“So I want every conservative in the nation to listen to what she just said. The doctrine of severability presumes, and its goal is, to preserve the statute if that is possible,” Graham said.
“Severability strives to look at a statute as a whole and say, would Congress have considered this provision so vital that -- kind of in the Jenga game — pulling it out, Congress wouldn’t want the statute anymore?” Barrett said.
But Sen. Richard J. Durbin (D-Ill.) said Barrett’s repeated focus on the severability question in Tuesday’s proceedings demonstrated that Barrett had already made a decision that the mandate is invalid.
Barrett said she had not made such a decision.
“What I meant by that is that even if the mandate is unconstitutional, if it is severable, then the statute would stand,” Barrett said. “I’ve gotten a lot of questions about severability, and a lot of the commentary in the legal news about this is focused on severability.”
Graham hails antiabortion Barrett as historic choice
Sen. Lindsey Graham, the Republican chairman of the Senate Judiciary Committee, opened the third day of hearings into Amy Coney Barrett’s nomination to the Supreme Court by hailing her antiabortion beliefs as groundbreaking.
Sen. Lindsey Graham, the Republican chairman of the Senate Judiciary Committee, opened the third day of hearings on Amy Coney Barrett’s nomination to the Supreme Court by hailing her antiabortion beliefs as groundbreaking.
“This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology,” the South Carolina senator said.
“It will be a great signal to all young women who want to share your view of the world, that there’s a seat at the table for them. This won’t be celebrated in most places, and hard to find much commentary about this moment in American history. But in many of our worlds, this will be celebrated. This has been a long time coming.”
Democrats have pressed Barrett about her views on abortion rights and how she might rule on issues including gay rights and the constitutionality of the Affordable Care Act, President Obama’s signature healthcare law that is under legal assault from Republicans. Liberals are concerned that Barrett, a conservative Catholic who has expressed her opposition to abortion rights, will help throw out Roe vs. Wade, the landmark 1973 Supreme Court decision that legalized abortion.
Barrett has declined to say how she might rule on abortion or other cases. She said her personal beliefs would not influence her judicial decisions. “I do see as distinct my personal and moral religious views, and my task of applying laws as a judge,” she said Tuesday.
The nominee is scheduled to be questioned by each senator for 20 minutes. Barrett is President Trump’s third nominee to the high court, chosen to replace Ruth Bader Ginsburg, a liberal icon who died Sept. 18.
Barrett says her past criticisms of rulings on abortion, Obamacare don’t signal how she would vote now
WASHINGTON — Judge Amy Coney Barrett spent most of the second day of her Supreme Court confirmation hearing batting away Democrats’ predictions that she would provide the final vote needed to invalidate the Affordable Care Act and substantially rein in abortion rights, but she struggled to reconcile assurances that she had an open mind with her past writings that demonstrated strong opinions.
“I am standing before the committee today saying that I have the integrity to act consistently with my oath and apply the law,” she told members of the Senate Judiciary Committee.
Throughout the day, Barrett — as most other Supreme Court nominees have done — consistently refused to comment about her views on issues that were likely to come before the court. She insisted she had “no agenda” other than to respect the rule of law.
But unlike most other recent high court nominees, Barrett has an unusually long record of public writings and letters on hot-button issues, such as abortion. And Democrats pressed her to explain them.
As an appellate court judge in 2018, Barrett she joined a dissent in support of an Indiana law that would have banned abortions based on a disability or deformity.
While a Notre Dame law professor in 2013, Barrett signed a public letter criticizing the landmark abortion ruling Roe vs. Wade and calling for “the unborn to be protected in law.” In 2006, she signed on to an ad that called for an “end to the barbaric legacy of Roe vs. Wade.”
Barrett said Tuesday she signed onto the ad on the “way out of church,” as a private citizen, and that it was “consistent” with the church’s views and a “pro-life” viewpoint. While she said she has “personal feelings about abortion,” she told Republican Sen. Lindsey Graham of South Carolina, the committee chairman, she would set aside her Catholic beliefs on the bench.
Barrett describes her ‘ruling’ in mock case on Affordable Care Act
Judge Amy Coney Barrett said she “ruled” in a mock court exercise last month that the Affordable Care Act’s mandate that individuals have insurance is invalid, but that the rest of the law can stand without it.
The moot court examined the case on the healthcare act’s constitutionality that the Supreme Court will begin considering next month. If Barrett is confirmed soon, as Senate Republicans plan, the case is likely to be one of the first in which she would participate.
“I voted to say that [the mandate] was unconstitutional but severable” from the rest of the law, Barrett said of the mock exercise. The Times previously reported on the moot court “ruling,” which came a week before Justice Ruth Bader Ginsburg died, but it wasn’t clear how each of the participating judges decided.
Barrett cautioned that the mock exercise was not designed to reflect her “actual views,” saying, “To the extent that people think I might have been signaling to the president or anyone else what my views on the Affordable Care Act are, you know, they couldn’t have taken any signal from that, certainly. I wasn’t trying to signal anything because it was a mock exercise.”
But Sen. Mike Crapo (R-Idaho) said the exercise provided a “clue” to her opinion and undercut Democrats’ claims that, as a justice, she would pose a threat to the entire law, including popular provisions like its requirement that insurers cover people with preexisting medical conditions.
The mock ruling, Crapo said, provides an “answer, frankly, to a lot of those raising this specter that you’re going to take the whole Affordable Care Act away from everyone because of this very narrow case.”
The case before the high court examines whether the individual mandate is valid now that Republicans dropped the penalty to $0 as part of their 2017 tax-cut law. The Trump administration has joined the case to argue that the mandate is not, and therefore the court should strike down the entire law.
Barrett apologizes after Democrats chide her for using the term ‘sexual preference’
Sen. Mazie Hirono (D-Hawaii) chided Supreme Court nominee Amy Coney Barrett for using the term “sexual preference” in reference to the LGBTQ community in response to questions about Barrett’s views on the court’s ruling to protect same-sex marriage.
The use of the term “sexual preference” is widely seen as offensive because it suggests being gay is a choice, rather than a biological characteristic.
“I have never discriminated on the basis of sexual preference,” Barrett said, adding that she considered discrimination as “abhorrent” as racism.
Hirono told Barrett that her use of the term was insensitive and uninformed.
Barrett apologized, saying she meant no hostility.
She also said, in keeping with her refusal to commit to positions, that her declining to state her views on the high court’s 2015 decision upholding same-sex marriage rights is “not indicating disagreement with it.”
When asked later by Sen. Cory Booker (D-N.J.) whether she agreed that being gay was an “immutable” part of a person, she declined to answer.
Barrett says she could set aside Catholic beliefs when ruling if she’s confirmed
Barrett told Republican Sen. Lindsey Graham of South Carolina on Tuesday she can set aside her Catholic beliefs and has done that since her confirmation as an appeals court judge in 2017.
Supreme Court nominee Amy Coney Barrett says she’ll be able to put aside her Catholic beliefs when ruling if she’s confirmed as a justice on the nation’s highest court.
Democrats press Barrett on her 2012 essay criticizing Roberts’ healthcare opinion
When confronted by an essay in which she criticized an opinion by Chief Justice John G. Roberts Jr. in 2012 that upheld the Affordable Care Act, Amy Coney Barrett took pains to emphasize she was engaging in an “academic critique” and was “not on a mission” to destroy the healthcare law.
“I am standing before the committee today saying that I have the integrity to act consistently with my oath and apply the law,” she said at Tuesday’s confirmation hearing.
Democratic senators have peppered her with questions about an essay she wrote in 2017 in which she chided Roberts for pushing the Affordable Care Act “beyond its plausible meaning to save the statute.”
They are particularly concerned that a Supreme Court, with the addition of Barrett as a justice, would strike down the law in a case to be argued a week after the election.
Barrett seemed to grow frustrated at the line of questioning by Sen. Chris Coons (D-Del.). “You’ve pulled out those few sentences at the end,” she told Coons when he pressed her about her views on the law.
Coons said her essay troubled him. “I think to reach out and strike this critical statute down now would be the worst example of judicial activism,” he said. “I also think you genuinely think the Affordable Care Act is unconstitutional. That’s my reading.”
Barrett says Roe decision is not a ‘super-precedent’ protected from reversal
Judge Amy Coney Barrett said she doesn’t view the 1973 abortion rights case Roe vs. Wade as a “super-precedent,” or a case that is so widely accepted that it is at no risk of being overturned.
Barrett said that while super-precedents exist, such as the anti-discrimination ruling Brown vs. Board of Education of Topeka, she wouldn’t put Roe in that category because the public is not unified on the issue and calls to overturn the decision continue.
“I’m answering a lot of questions about Roe, which I think indicates that Roe does not fall into that category,” Barrett said.
At the same time, Barrett stressed that just because a decision is not seen as a super-precedent doesn’t mean it will or should be overturned.
“Scholars across the spectrum say that doesn’t mean that Roe should be overruled, but descriptively it does mean that it is not a case that everyone has accepted,” she said.
Democrats cite Trump tweets to challenge Barrett on abortion, healthcare
Democrats defended their claims that Judge Amy Coney Barrett could be a vote on the Supreme Court to overturn abortion rights and the 2010 healthcare law, pointing to President Trump’s repeated pledges that his appointees would do so.
Barrett avoided expressing a point of view on either issue in the first hours of questioning from Democrats at her confirmation hearing Tuesday.
Republicans, in turn, blasted Democrats for assuming that she would rule against abortion or the Affordable Care Act, or for suggesting that she’d have some understanding with Trump to do so.
“The best I can understand, the objections to your nomination are not to your qualifications, your experience or training, but it’s that you have or will violate your oath of office,” Sen. John Cornyn (R-Texas) said to Barrett. “I find that terribly insulting.”
But Democrats cited Trump’s tweets and remarks to sharply defend their emphasis on the future of abortion rights and the Affordable Care Act.
“This notion that this whole idea of your being used for political purposes is a Democratic creation — read the tweets and you have plenty to work with,” said Sen. Richard J. Durbin (D-Ill.). “Read the tweets.”
Trump repeatedly promised as a candidate and as president that he would only select “pro-life” judges. “The judges will be pro-life,” he said on CBS’ “60 Minutes” shortly after his 2016 election.
In 2015, days after the Supreme Court upheld the healthcare law a second time, with an opinion written by Chief Justice John G. Roberts Jr., Trump tweeted: “If I win the presidency, my judicial appointments will do the right thing unlike [President George W.] Bush’s appointee John Roberts on ObamaCare.”
Barrett says she is ‘not hostile’ to the Affordable Care Act
Judge Amy Coney Barrett said she is “not hostile” to the Affordable Care Act, a law the Supreme Court will consider in a case before it next month, perhaps days after she is sworn in if confirmed by the Senate.
“I’m not hostile to the ACA. I’m not hostile to any statute that you pass,” Barrett said under questioning from the Senate Judiciary Committee.
Sen. Richard J. Durbin (D-Ill.) asked how Barrett could be viewed as having an open mind on the healthcare law, which conservatives have assailed for a decade, when she has been critical of the two prior Supreme Court rulings that upheld its constitutionality.
“Your concern is that because I critiqued the statutory reason [behind those rulings], that I am hostile to the ACA and that because I’m hostile to the ACA that I would decide a case in a particular way,” Barrett said. “I assure you I am not.”
Barrett said the legal issues in the first two cases were completely different from the key issue in the pending case. That question for the justices is whether all or part of the law should be struck down because its mandate that individuals have health insurance was effectively invalidated when a Republican-controlled Congress reduced the mandate penalty to $0 as part of a 2017 tax cut.
The Trump administration is advocating that the court rule against the entire law, including its popular provision that insurance companies must cover people with preexisting medical conditions.
“You said it won’t affect preexisting conditions,” Durbin said to Barrett. But “if the petitioners have their way, there will not be an Affordable Care Act to protect the preexisting conditions.”
On George Floyd: ‘We wept together,’ Barrett says, referring to her Black daughter
Amy Coney Barrett said she cried when she watched the video showing the death of George Floyd, a Black man who died May 25 after a white police officer pressed a knee into his neck for several minutes.
“As you can imagine, given that I have two Black children, that was very, very personal for my family,” Barrett said in response to a question by Sen. Richard J. Durbin (D-Ill.).
Barrett said her 16-year-old daughter, Vivian, whom she adopted from Haiti, took the death hard because she realized she and her brother, John Peter, who was also adopted from Haiti, might be exposed to such brutality.
“It was very difficult for her, and we wept together in my room,” Barrett said.
“I had to explain some of this to them,” she added. “I mean, my children to this point in their lives have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence. ... It’s a difficult one for us, like it is for Americans all over the country.”
Barrett echoes Scalia in denying she has antiabortion agenda
When Judge Amy Coney Barrett said she has no agenda to undo abortion rights if she joins the Supreme Court, her response recalled that of her late mentor, Justice Antonin Scalia, in his own confirmation hearing 34 years ago.
“I don’t have an agenda. I have no agenda to try to overrule Casey,” she said under questioning by Sen. Dianne Feinstein (D-Calif.), referring to Planned Parenthood vs. Casey, a decision in 1992 that built on the 1973 Roe vs. Wade decision.
It was remarkably similar to Scalia’s response in 1986 when Sen. Edward M. Kennedy (D-Mass.) asked if he would overrule Roe. Scalia said it would not be proper to answer the question, but Kennedy cited reports that suggested Scalia was nominated by President Reagan based partly on the belief he’d support overturning Roe.
“I assure you, I have no agenda,” Scalia said. “I am not going onto the court with a list of things that I want to do. My only agenda is to be a good judge.”
Scalia went on to become one of the court’s most ardent opponents of the Roe decision and abortion rights. “Roe was plainly wrong,” Scalia wrote in his dissent to the Casey decision.
Barrett, who clerked for Scalia, has said that generally his philosophy is hers, too. But she pushed back on the idea that she would be a clone of the justice.
“If I’m confirmed, you would not be getting Justice Scalia,” she said. “You would be getting Justice Barrett.”
Barrett says 2nd Amendment ‘leaves room’ for gun regulations
Supreme Court nominee Amy Coney Barrett on Tuesday offered a nuanced view of gun laws that might disappoint her most conservative supporters during questioning before the Senate Judiciary Committee.
California Sen. Dianne Feinstein, the ranking Democrat on the committee, pressed Barrett on whether she saw a “compelling interest to limit gun violence,” given the many mass shootings in the United States in recent years.
As with most other issues put before her, Barrett was noncommittal on her views about gun rights, saying that she was judicially constrained from commenting on cases that might come before her on the court.
Pro-gun conservatives hailed Barrett’s nomination, citing specifically her holding as an appellate judge that felons convicted of nonviolent crimes should not be barred from possessing guns. But under questioning, she did not rule out the ability of governments to impose some restrictions on gun ownership.
The 2nd Amendment, which protects the right of the people to “keep and bear arms,” is “not absolute,” Barrett said. Even a 2008 decision of the Supreme Court that expanded individuals’ rights to have weapons “leaves room” for gun regulations, she said.
The ruling in that case, the District of Columbia vs. Heller, reversed the notion that the amendment applied only to militias, and instead expanded it to recognize individuals’ right to have guns at home. It was written by Barrett’s mentor, the late Justice Antonin Scalia.
“The original meaning of the 2nd Amendment does support the idea that governments are free to keep guns out of the hands of the dangerous,” Barrett said, such as the mentally ill.
Barrett, like Scalia, is an “originalist,” meaning she believes the Constitution should be interpreted as written more than 200 years ago.
Barrett refuses to say whether Roe was wrongly decided, pledges ‘no agenda to try to overrule’ abortion rights
Judge Amy Coney Barrett refused to address whether the 1973 Roe vs. Wade decision establishing abortion rights was wrongly decided. She acknowledged that the decision could be overturned but said she has “no agenda to try to overrule” abortion rights.
When asked by Sen. Dianne Feinstein (D-Calif.) whether Roe was wrongly decided, Barrett dodged the question, citing judicial rules against weighing in on a pending issue.
“It would be particularly — it would actually be wrong, a violation of the canons for me to do that as a sitting judge,” said Barrett, who currently sits on the 7th Circuit Court of Appeals. “So if I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another on a pending case.”
Feinstein pressed her again and got a similar dodge.
“I completely understand why you are asking the question, but again, I can’t pre-commit or say, yes, I’m going in with some agenda. Because I’m not,” Barrett said. “I don’t have an agenda. I have no agenda to try to overrule Casey,” she added, referring to Planned Parenthood vs. Casey, a decision in 1992 that built on the Roe decision.
Barrett was also asked whether she believes the Roe decision could be overturned. She did not directly answer the question but indicated that it is a possibility.
“That’s a case that is litigated. Its contours could come again — in fact they do come up,” she said.
Barrett pushes back on ‘caricatures’ by opponents
When asked by Sen. Lindsey Graham, the Republican chairman of the Senate Judiciary Committee, “how it feels to be nominated for the Supreme Court,” Amy Coney Barrett spoke about her frustration with how she had been portrayed in the media.
“You know you can’t keep yourself walled off from everything,” Barrett said. “And I’m aware of a lot of the caricatures that are floating around.”
News organizations have conducted deep dives into Barrett’s conservative Catholic faith and her membership in a controversial ecumenical Christian group that former members and liberal critics have likened to a cult. She said she and her husband didn’t have much time to consider the nomination but decided what would probably be an “excruciating” process was worth it.
“We knew that our faith would be caricatured; we knew our family would be attacked,” she said. “So we had to decide whether those difficulties would be worth it because what sane person would go through that if there wasn’t a benefit on the other side. And the benefit, I think, is that I’m committed to the rule of law and the role of the Supreme Court and dispensing equal justice for all.”
Barrett added that she had made “distinct choices” in her life. “I’ve decided to pursue a career and have a large family,” she said. “I have a multiracial family, and our faith is important to us. All of those things are true, but they are my choices.”
She added that she had “a life brimming with people who’ve made different choices, and I’ve never tried in my personal life to impose my choices on them. And the same is true professionally.”
Things to watch for in Barrett questioning
- How aggressively does Sen. Dianne Feinstein (D-Calif.) question Barrett? Progressives are eager for her to show more muscle and fervor in her questioning in anticipation that she could be Judiciary Committee chairwoman next year and responsible for confirming nominees from a President Joe Biden.
- How do the Senate Republicans who are on the ballot this fall question Barrett? Several members of the panel (Sens. Lindsey Graham of South Carolina, John Cornyn of Texas, Joni Ernst of Iowa and Thom Tillis of North Carolina) are in difficult reelection battles. A viral moment could give their campaigns a boost.
- Does any Democrat mention religion? Only Republicans mentioned Barrett’s Catholic faith in Monday’s proceedings. Is she asked to confirm her participation in People of Praise, a Catholic group that has become a key focus in the nomination because of its teaching that men are the head of the household.
- California Sen. Kamala Harris, the Democratic vice presidential nominee, will be one of the last senators to question Barrett. What issue does she focus on and does she have a powerhouse moment, as she has had in the past?
- Democratic Sens. Richard Blumenthal of Connecticut and Richard J. Durbin of Illinois plan to ask her to recuse herself from any potential election cases. How does she respond?
- How far will Barrett go in discussing her views about Supreme Court precedent, abortion, the Affordable Care Act, gun regulations and gay rights? She has a more extensive record on these issues than most nominees, perhaps giving senators more latitude to press her to take positions.
- Does it get contentious? Monday’s opening statements were remarkably calm and congenial, especially compared with Supreme Court hearings in recent memory.
Day 1 recap: Democrats avoid talk of religion, keep focus on healthcare
Healthcare dominated the first day of Judge Amy Coney Barrett’s Supreme Court confirmation hearing, as Democrats framed her as a lethal threat to the Affordable Care Act and abortion rights and warned that even conducting the hearing during the pandemic was reckless.
Democrats showed discipline in focusing almost exclusively on the 2010 healthcare law during the first of four days of hearings. A similar, singular healthcare strategy boosted Democratic congressional candidates in the 2018 midterm election. Next month, the Supreme Court will hear arguments on a case challenging the constitutionality of the law, and if Barrett is confirmed, she could be the deciding vote.
“We can’t afford to go back to those days when Americans were denied coverage,” said Sen. Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee, pointing to past criticisms by Barrett about the law, which is also known as Obamacare.
Republicans, for their part, focused their opening statements on Barrett’s character and legal credentials, including graduating first in her class at Notre Dame Law School and clerking for the late Justice Antonin Scalia. They also tried to draw Democrats into a debate about Barrett’s Catholic faith, accusing liberals of imposing a religious litmus test. Democratic senators avoided the topic of religion altogether.
In contrast to the tumultuous hearing of Justice Brett M. Kavanaugh in 2018, which started with procedural delay tactics by Democrats within minutes of the opening gavel, Monday’s hearing was cordial and calm. Senators delivered their 10-minute opening statements with no interruptions from members of the opposing party. No members of the public were allowed in the hearing room because of coronavirus concerns, meaning there were none of the outbursts and protests that occurred during the Kavanaugh hearing.
In her opening statement, Barrett emphasized a respect for precedent and settled law and a view that the courts are “not designed to solve every problem or right every wrong in our public life.”
Democrats plan to keep hammering home the healthcare message
Senate Democrats said they will continue to emphasize the threat to the Affordable Care Act at the Supreme Court throughout the four-day confirmation hearing for nominee Amy Coney Barrett.
“Our Republican colleagues are shocked, shocked that we think this nomination is all about judicially destroying the Affordable Care Act,” Sen. Sheldon Whitehouse (D-R.I.) said at a news conference at the end of the first day’s hearing.
“The only problem with their feigned shock is that they’re the ones who said that that’s what they’re doing. It’s in the Republican Party platform to — and I’m quoting here — reverse the Obamacare cases. Trump has said he’s using his nominations to terminate the Affordable Care Act. So I think it’s pretty fair of us to hold them to account for what they have said this nomination is all about.”
Democrats indicated they’ll ask Barrett about other topics, including abortion access and gun violence. But with the Supreme Court hearing a case against the healthcare law a week after the election, Sen. Chris Coons (D-Del.) said Democrats will continue to focus on it because “the Affordable Care Act is on the ballot and on the docket.”
Republicans repeatedly suggested Monday that Democrats were attacking Barrett’s Catholic faith, a claim based on questions at her contentious 2017 confirmation hearing for a seat on the 7th Circuit Court of Appeals. But Democrats did not ask Barrett on Monday about her religious beliefs, which she has addressed in legal writings and remarks, and said afterward that they don’t expect to do so.
“Did you hear one of us raise that issue?” Sen. Richard J. Durbin (D-Ill.) asked, adding that Democrats swore an oath to a Constitution that specifically says there can be no religious test for public office.
A surprisingly civil first day ends
The first day of Amy Coney Barrett’s confirmation hearing has ended.
All senators and Barrett made their opening statements without any of the objections or rancor that had dominated other Supreme Court confirmation hearings under President Trump.
That civility could end as soon as 9 a.m. Eastern time on Tuesday, when senators begin their questioning of Barrett.
Watch: Barrett delivers opening statement, vows to interpret laws ‘as they are written’
Supreme Court nominee Amy Coney Barrett says she believes the court should interpret the U.S. Constitution and laws ‘as they are written.’
Supreme Court nominee Amy Coney Barrett says she believes the court should interpret the U.S. Constitution and laws “as they are written.”
Barrett said in her opening statement Monday at her confirmation hearing before the Senate Judiciary committee that people of all backgrounds deserve “an independent Supreme Court.”
She says: “And I believe I can serve my country by playing that role.”
President Trump nominated Barrett just two weeks ago to fill the seat of the late Ruth Bader Ginsburg, who died Sept. 18. Trump and Republicans want Barrett on the bench in time for Election Day, Nov. 3.
Barrett, a conservative, would shift the balance on the court significantly right, from 5-4 in favor of conservatives to 6-3. Democrats worry she would vote to rule the Affordable Care Act is unconstitutional in a case coming before the court in November.
Kamala Harris calls for Barrett hearing to be postponed
California Sen. Kamala Harris, the Democratic vice presidential nominee, says Republicans are trying to get the Supreme Court to do their “dirty work” by installing a new justice who will overturn the Affordable Care Act.
Sen. Kamala Harris, the Democratic Party’s vice presidential nominee, called for Barrett’s hearing to be postponed because of the COVID-19 outbreak.
“This hearing has brought together more than 50 people to sit inside a room for hours while our nation faces a deadly airborne virus,” the California Democrat said. “The decision to hold this hearing now is reckless and places facilities workers, janitorial staff, congressional aides, and Capitol Police at risk.”
Harris appeared remotely from her Senate office building, with her office citing concerns about the lack of mandatory COVID-19 testing in the hearing room.
Harris’s opening statement struck familiar notes that many other Democratic senators have hit during the first day of Barrett’s hearing. She repeated Democrats’ frequent objections to Republicans pursuing the confirmation instead of a coronavirus economic relief bill, and rushing the process before the election.
“A clear majority of Americans want whomever wins this election to fill this seat,” she said. “And my Republican colleagues know that.”
And, like other Democrats, she focused on the threat they feel Barrett poses to the Affordable Care Act, abortion rights and LGBT rights.
“By replacing Justice Ruth Bader Ginsburg with someone who will undo her legacy, President Trump is attempting to roll back Americans’ rights for decades to come,” Harris said. “Every American must understand that, with this nomination, equal justice under law is at stake.”
Here’s exactly what Feinstein said in 2017 about Barrett’s religion and why she brought it up
Several Republican Senate committee members complained Monday that Democrats have previously criticized Supreme Court nominee Amy Coney Barrett’s Catholicism or are trying to create a religious litmus test for the bench. Where did that come from?
It stems from a series of questions from Democrats during Barrett’s 2017 confirmation hearing for the U.S. Circuit Court of Appeals for the Seventh Circuit, most notably a comment from Sen. Dianne Feinstein (D-Calif.).
Here’s what Feinstein said at that hearing: “Why is it that so many of us on this side have this very uncomfortable feeling that, you know, dogma and law are two different things? And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you.”
Feinstein’s comment came as part of a discussion about an 1998 article that Barrett co-wrote in which she questioned whether Catholic judges might have to recuse themselves on certain issues that conflicted with their faith — specifically, the death penalty.
Barrett argued in the article that Catholic judges are “morally precluded” from enforcing the death penalty.
At the 2017 hearing, however, Barrett said she believed judges shouldn’t put their personal views above the law.
In Monday’s hearing, Republicans also cited two other comments from the 2017 hearing.
“Do you consider yourself an orthodox Catholic?” Sen. Dick Durbin (D-Ill.) asked in 2017. Durbin is Catholic.
“So in spite of the fact that you had written in an earlier article that Catholic judges — and you would be a Catholic judge — you would not recuse yourself from death penalty cases? … Ms. Barrett, I think your article is very plain in your perspective about the role of religion for judges, and particularly with regard to Catholic judges,” Sen. Mazie Hirono (D-Hawaii) said in 2017.
No Democrat has so far mentioned Barrett’s faith in Monday’s hearing. They have said it is not part of their strategy, preferring instead to focus on whether Barrett would overturn Obamacare.
Republicans remind viewers of Feinstein’s contentious comments to Barrett in 2017
Republican senators frequently alluded to Amy Coney Barrett’s Catholic faith in their opening remarks on her Supreme Court nomination Monday, and suggested that Democrats want to impose a religious litmus test to be a judge.
They are resting on a comment Sen. Dianne Feinstein (D-Calif.) made in 2017 to Barrett in her confirmation hearing to be an appellate judge. She said then that it seemed Barrett’s “dogma lives loudly within” her. That provoked a backlash, and in today’s hearing Democrats have not mentioned her faith at all. Two of the most senior Democrats, Sens. Patrick Leahy of Vermont and Dick Durbin of Illinois, are Catholic.
From the time of Barrett’s nomination last month, Republicans have shown eagerness to remind the public of the Feinstein episode and to try to preempt questions about Barrett’s particularly conservative brand of Catholicism.
In his hearing statement, Sen. Ben Sasse (R-Neb.) said, “As somebody who is self-consciously a Christian, we’ve got a whole bunch more really weird beliefs — forgiveness of sins, the virgin birth, resurrection from the dead, eternal life. There are a whole bunch of really, really crazy ideas … that are a lot weirder than some Catholic moms giving each other advice about parenting.”
Sen. Josh Hawley (R-Mo.) inaccurately suggested that Democratic senators had “repeatedly questioned Judge Barrett and many other judicial nominees about their religious beliefs, about their religious membership, about their religious practices, about their family beliefs and practices,” adding, “That is an attempt to bring back the days of the religious test.”
“We all know,” he said, “that she and her husband had chosen to raise their family according to their Catholic beliefs and faithful fellowship with other Catholics.”
Maskless Mike Lee appears in person after recent bout with COVID-19
Less than two weeks after his COVID-19 diagnosis, Sen. Mike Lee (R-Utah) appeared in person — and removed his mask — at Monday’s opening confirmation hearing for Supreme Court nominee Amy Coney Barrett, where he admonished Democrats, accusing them of trying to politicize the judiciary.
“You are not a policymaker,” Lee told Barrett, who was wearing a black mask. “You’re a judge.”
Lee posted a letter dated Monday from Congress’ attending physician saying Lee appeared free of fever and other symptoms for the period of time that the Centers for Disease Control and Prevention recommended.
“You have met criteria for ending COVID-19 isolation for those with mild to moderate disease,” Dr. Brian P. Monahan wrote.
In his remarks, Lee suggested his Democratic colleagues were more interested in having the Supreme Court legislate policies than adjudicate.
Lee and another committee member, Sen. Thom Tillis (R-N.C.), tested positive for the virus after attending the Sept. 26 White House ceremony to announce Barrett’s nomination. Nearly three dozen attendees tested positive for the virus afterward.
Sen. Lindsey Graham (R-S.C.), chair of the Judiciary Committee, said after Lee spoke that the Utah senator seemed to have “made a full recovery.” “Definitely some good news,” Graham said as Lee beamed but said nothing.
Lee put a mask on after he delivered his opening statement. He said separately that he was not contagious and that his family was well and without symptoms.
Some senators are speaking virtually at the hearing, including 80-year-old Sen. Patrick Leahy (D-Vt.). He excoriated the Senate leadership for failing to institute regular COVID-19 testing.
Sen. Ted Cruz (R-Texas), who also appeared by video, told the Washington Post last week that Lee had been seriously ill. “He was sick. ... He was hurting,” Cruz said. “He’s feeling better now, so I’m encouraged that Mike had a couple of days where he felt really bad and now he’s feeling better.”
Democrats keep their focus almost exclusively on threat to Affordable Care Act
Democrats know they are unlikely to stop Republicans from confirming Supreme Court nominee Amy Coney Barrett, but they have focused intensively on the Affordable Care Act in Monday’s hearing — an approach that could be politically helpful to Democratic challengers hoping to unseat Republicans in key Senate races.
Republicans, including Senate Judiciary Chairman Lindsey Graham (R-S.C.), have been hoping that the Barrett hearing will give their candidates a boost in the contested Senate races, given the importance that conservative voters place on the Supreme Court.
But the more the closing debate focuses on the threat that Republicans will repeal the healthcare law, the better for Democratic candidates.
The Supreme Court is scheduled to hear a case a week after the election in which a coalition of conservative states, backed by the Trump administration, is seeking to overturn the healthcare law, also known as Obamacare.
Every Democrat on the Senate Judiciary Committee so far Monday has gone into significant detail about the future of the ACA, given the role Barrett could play in that case.
Two years ago, Democrats made the healthcare law their top argument in the midterm elections. Analysts on both sides say that focus played a major role in helping Democrats capture control of the House.
Biden: Barrett should not be questioned about Catholic faith
Joe Biden was asked by reporters if Amy Comey Barrett’s religious faith should be considered by the Judiciary Committee considering her nomination to the Supreme Court.
“No, it should not be,” the Democratic presidential nominee said from New Castle, Del., before boarding a plane to Ohio, where he is campaigning Monday. “I don’t think there should be any questions about her faith.”
Instead, like Democratic senators on the committee, Biden switched the focus to the effect Barrett could have on a case before the court about whether to strike down the Affordable Care Act.
“This nominee said she wants to get rid of the Affordable Care Act. The president wants to get rid of it. Let’s keep our eye on the ball. This is about [whether in] less than one month Americans are going to lose their health insurance.”
While President Trump repeatedly has called for killing the Affordable Care Act, and his administration is arguing for that in the pending court case, Barrett has not explicitly taken that position. She has, however, publicly criticized a previous Supreme Court decision upholding the healthcare law.
Democrats will force Republicans to break prior practice to confirm Barrett
Democrats say they won’t help Republicans reach the quorum of senators required to vote on Amy Coney Barrett’s Supreme Court nomination, which the Senate Judiciary Committee has tentatively scheduled for Oct. 22. The move, which could force Republicans to break prior practice to confirm Barrett, is a sign of protest for the legitimacy of Barrett’s nomination.
“Democrats will not supply the quorum,” Senate Minority Leader Charles E. Schumer (D-N.Y.) said Sunday.
The quorum rules require nine senators, including two from the minority party, to be present in the committee for a vote. If two Democrats don’t show up at the session, Republicans wouldn’t have a quorum. But Republicans have ways to get around the rule. They can override Democrats and unilaterally rewrite the committee rules, or Senate Majority Leader Mitch McConnell (R-Ky.) can bring the nomination directly to the full Senate for a vote.
This is “not a kill-shot,” said Adam Jentleson, a former aide to Senate Majority Leader Harry Reid (D-Nev.), adding that the messaging is important. “Through this whole process, there is value in demonstrating with actions, not just words, that Democrats believe this process is illegitimate.”
Graham: Barrett confirmation different from Garland’s because GOP controls White House and Senate
Judiciary Committee Chairman Lindsey Graham (R-S.C.), in his opening remarks, quickly addressed Democrats’ argument that the Senate should wait to act until after the presidential election to allow the winner to fill the open U.S. Supreme Court seat.
“There’s nothing unconstitutional about this process. This is a vacancy that occurred through a tragic loss of a great woman. And we’re going to fill that vacancy with another great woman,” he said of the confirmation hearing for Amy Coney Barrett following the death of Justice Ruth Bader Ginsburg. “The bottom line here is that the Senate is doing its duty, constitutionally.”
Democrats have made a central point of Republicans’ reversal from 2016, when they blocked nominee Merrick Garland, whom President Obama nominated in March to fill the seat opened by the death of Justice Antonin Scalia. Republicans said then it was too close to the election and voters should have a say. Garland never received a hearing; many Republican senators would not even meet with him, as is customary.
Barrett would be the first nominee ever confirmed after July in a presidential election year, Graham acknowledged. But he stressed that Garland’s nomination was different because Republicans held the Senate and Democrats held the White House, while now Republicans control both. The 17 justices confirmed in an election year in U.S. history all occurred when the same party held the Senate and the White House, he said.
Republicans didn’t make that specific argument four years ago, however.
California Sen. Dianne Feinstein, the senior Democrat on the committee, noted that Graham committed in October 2018 to oppose any Supreme Court nominee in the presidential election year.
“Republicans should honor their word... their promise and let the American people be heard,” she said in her opening statement. “Simply put, I believe we should not be moving forward on this nomination. Not until the election is ended and the next president has taken office.”
Barrett will tell senators laws should be applied as written, not as judges would like
Supreme Court nominee Amy Coney Barrett, whose confirmation hearings begin Monday, will tell the Senate Judiciary Committee that “policy decisions and value judgments” should be made by elected officials, not the courts, according to her opening statement released Sunday.
The 48-year-old federal appeals court judge, whose ascension to the high court would cement a conservative majority, also will pay tribute to Justice Ruth Bader Ginsburg, a legal icon whose death last month created the court vacancy she has been nominated to fill, and to Barrett’s mentor, Justice Antonin Scalia, according to the prepared remarks.
Amy Barrett’s conservative faith creates uncomfortable debate over religion and policy
The nomination of Amy Coney Barrett, a conservative Catholic, to the U.S. Supreme Court has ignited an uncomfortable debate about the intersection of religious faith, public policy and the federal courts that is likely to hang like a shadow over her confirmation hearings.
If Barrett wins, her confirmation would mark the culmination of a decades-long push by conservatives to tilt the court to the right — an effort in which traditionalist Catholics have played a major role, providing much of the movement’s energy and strategy as well as its personnel. All five of the Republican nominees currently on the court are Catholic or, in the case of Justice Neil M. Gorsuch, received a Catholic education.
Can Democrats stop Barrett’s confirmation hearing?
Not likely. Boycotting the hearings would just allow Republicans to move faster, so that idea has been largely abandoned. To drag it out Democrats can make procedural motions or move to adjourn the hearings and demand more time, like they did during the Brett M. Kavanaugh hearings, but it isn’t likely to work since Republicans have a majority.
What else can Democrats try?
Democrats are hoping to raise public pressure on Republicans by focusing on what Barrett’s addition to the court is likely to mean for healthcare, workers rights, abortion access and other progressive issues. They’ve accused Republicans of rushing to add another conservative to the bench just days before the presidential election.
And they’ve made a central point of Republicans’ reversal from 2016, when most sitting GOP senators said they would not give Merrick Garland, who m President Obama nominated in February, a hearing because it was too close to the election and voters should have a say.
Barrett would be the first nominee ever confirmed after July in a presidential election year, and through a process much shorter than the average period of consideration nominees have received since the 1970s.
“The Senate and the American public deserve a deliberative, thorough process, and this falls far short,” California Sen. Dianne Feinstein, the most senior member of the Judiciary Committee, said in a letter asking Republicans to delay filling the seat until after the inauguration in January.
Democrats also sought to make the confirmation about process, saying because it is rushed, senators won’t have time to do due diligence in researching her, and the Justice Department didn’t provide all of her writings to the committee.
How will Republicans respond?
Republicans have sought to keep the focus on Barrett’s qualif i cations and on accusing Democrats of opposing her because of her religious views.
Barrett has close ties to a Christian religious group called People of Praise that holds that men are divinely ordained as the “head” of the family and faith. It previously used the term “handmaiden” to describe female leaders. People of Praise is made up of people of various denominations, but members are mostly Catholic.
Some opponents of Barrett want Democrats to probe the group’s hierarchical structure, especially because Barrett would be replacing the late Justice Ruth Bader Ginsburg, a feminist icon. Supporters have sought to frame any questions about her involvement in the group as anti-Catholic bigotry.
“United States senators are suggesting that Judge Barrett is too Christian, or the wrong kind of Christian, to be a good judge,” Senate Majority Leader Mitch McConnell (R-Ky.) said in a statement this week.
Wary of the potential minefield of delving into her personal beliefs, multiple Democrats said this week they do not intend to ask Barrett about her faith, or any other issues involving religion.
If Barrett is confirmed, there will be six Catholic justices on the court.
Will the pandemic affect the hearings?
So far, it doesn’t look that way. But in order to get Amy Coney Barrett on the bench before the election, there is little room for things to go wrong.
Two committee members, Sen. Thom Tillis of North Carolina and Sen. Mike Lee of Utah, have tested positive and are quarantining, but will be allowed to participate in the hearing remotely. But committee and Senate rules are clear that votes must be cast in person.
Multiple Republicans have tested positive for the coronavirus or decided to quarantine out of an abundance of caution after cases at the White House surged, which prompted Senate Majority Leader Mitch McConnell of Kentucky to delay Senate votes until Oct. 19.
If more were to fall ill, or if those who tested positive have serious cases and cannot appear in person to vote, Republicans could struggle to have the votes needed to confirm Barrett before the election.
Who is Amy Coney Barrett?
Amy Coney Barrett is a well regarded legal scholar, and an acolyte of former Justice Antonin Scalia’s take on the law.
Barrett was born in New Orleans in 1972. She attended Notre Dame Law School, where she graduated first in her class in 1997.
She clerked for Judge Laurence Silberman on the D.C. Circuit Court of Appeals and Scalia on the U.S. Supreme Court. She was a professor at Notre Dame Law School from 2002-17.
The American Bar Assn. gave her a “well-qualified” rating in 2017, but has not yet completed its Supreme Court determination. She was confirmed by a bipartisan vote of 55-43-2 to serve in the U.S. Circuit Court of Appeals for the Seventh Circuit in 2017.
She was previously vetted for the vacant Supreme Court seat in 2018 that was filled instead by Brett M. Kavanaugh.
She and her husband, Jesse Barrett, a former prosecutor who is now in private practice, have seven children, including one with Down syndrome and two who were adopted from Haiti.
What to expect this week
The hearing for Supreme Court nominee Amy Coney Barrett will last four days, and is expected to follow the same format as for other recent Supreme Court nominees. Judiciary Committee members and the nominee will give opening statements starting at 9 a.m. ET on Monday. Then the senators get a few days to question Barrett. They’ll hear from people who know her well and legal experts on Thursday.
Democrats are expected to ask to “hold over” the nomination, which would delay a vote to send her nomination to the Senate until Oct. 22. That means it will be the last few days of October before the entire Senate can vote. She is expected to be narrowly approved.