Amy Coney Barrett's confirmation hearing: Day 3

By Melissa Macaya, Mike Hayes and Meg Wagner, CNN

Updated 2234 GMT (0634 HKT) October 14, 2020
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10:50 a.m. ET, October 14, 2020

Barrett says she’s never spoken in favor of the Affordable Care Act

From CNN's Jeremy Herb, Manu Raju and Joan Biskupic

Supreme Court nominee Judge Amy Coney Barrett speaks on the third day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill on October 14 in Washington, DC.
Supreme Court nominee Judge Amy Coney Barrett speaks on the third day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill on October 14 in Washington, DC. Bonnie Cash/Pool/AFP/Getty Images

After facing a barrage of questions over the past two days from Democrats about her past writings and comment taking issue with rulings upholding the Affordable Care Act, Amy Coney Barrett was asked Wednesday by Sen. Patrick Leahy: “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.”

Leahy pressed her again on if she’s ever spoken in favor of the ACA. “No, I’ve never had a chance to weigh in on the policy question.”

Some context: When she was a law professor, Barrett tried to puncture arguments favoring Obamacare. 

Barrett, then a University of Notre Dame law professor, wrote in a 2017 law review essay, "Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power."

She continued, "Had he treated the payment as the statute did —as a penalty —he would have had to invalidate the statute as lying beyond Congress's commerce power."

Democrats have argued during the confirmation hearings that Barrett's criticisms of 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."

10:32 a.m. ET, October 14, 2020

Barrett doesn't say one way or another if President Trump can pardon himself

Supreme Court nominee Judge Amy Coney Barrett testifies on the third day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill on October 14 in Washington, DC.
Supreme Court nominee Judge Amy Coney Barrett testifies on the third day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill on October 14 in Washington, DC. Erin Schaff/Pool/AFP/Getty Images

Supreme Court nominee Amy Coney 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.

Democratic Sen. Patrick Leahy, referencing President Trump's claim that he has "the absolute right" to pardon himself first asked Barrett if she believes that no American is above the law.

"I agree. No one is above the law," Barrett asked.

Then, Leahy asked: "Does a president have an absolute right to pardon himself for a crime? I mean, we heard this question after president Nixon's impeachment."

Here's how Barrett responded:

"Sen. Leahy, so far as I know, that question has never been litigated. That question has never arisen. 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, 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 on which I can offer a view."
11:28 a.m. ET, October 14, 2020

Barrett says she'd "keep an open mind" about cameras in the courtroom

From CNN's Ariane de Vogue

Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her Supreme Court confirmation hearing on Capitol Hill on October 14 in Washington, DC.
Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her Supreme Court confirmation hearing on Capitol Hill on October 14 in Washington, DC. Bill Clark/Pool/Getty Images

Judge Amy Coney Barrett was just asked how she feels about allowing cameras into the Supreme Court. 

Barrett, like several other Supreme Court justices, agreed to “keep an open mind” about the possibility.

But once confirmed, that might change: We have seen other justices testify that they are open to the idea, but once they arrive at the marble palace that seems to change.

As things stand, the court is allowing a live feed of audio, as justices work remotely during the pandemic, but it seems very far away from allowing cameras in.

Watch:

4:40 p.m. ET, October 14, 2020

Here are some of the outside witnesses who will appear at Barrett's hearing tomorrow

From CNN's Manu Raju 

Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, has announced a set of outside witnesses who will appear before the committee tomorrow, the fourth and final day of Supreme Court nominee Amy Coney Barrett's confirmation hearing.

The witnesses will discuss the Affordable Care Act, reproductive rights and voting rights, according to Feinstein.

Here are the four witnesses, as described in a news release from Feinstein:

  • Stacy Staggs, "a mother of 7-year old twins. Stacy’s twins have multiple pre-existing conditions due to their premature birth and rely on the Affordable Care Act’s protections. Stacy works with Little Lobbyists, a nonprofit started by families with children who have complex medical needs. Stacy will discuss the devastating effects on her family if the Supreme Court overturns the Affordable Care Act."
  • Dr. Farhan Bhatti, "a family physician and CEO of Care Free Medical, a nonprofit clinic. Dr. Bhatti will discuss the harm to his patients if the Supreme Court overturns the Affordable Care Act."
  • Crystal Good, "fought for her right to obtain an abortion at age 16. Crystal will speak about the importance of reproductive rights and justice."
  • Kristen Clarke, "president and executive director of the Lawyers’ Committee for Civil Rights Under Law. Kristen will speak about the importance of voting rights and other civil rights protected by the Constitution and federal law."
9:56 a.m. ET, October 14, 2020

Feinstein presses Barrett on ACA and whether the entire law can stand if one part of it is deemed illegal

From CNN's Jeremy Herb

Susan Walsh-Pool/Getty Images
Susan Walsh-Pool/Getty Images

Sen. Dianne Feinstein, the panel’s top Democrat, asked Judge Amy Coney Barrett about the legal doctrine of “severability,” or whether the entire law can stand if one part of it is deemed illegal, during Barrett’s second day of questions before the Senate Judiciary Committee today.

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 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 said. “Severability is designed to say well would congress still want the statute to stand even with the provision gone?”

Senate Judiciary Chair Lindsey 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.”

This was their exchange:

“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 facing a tough reelection fight, nevertheless launched into another attack on former President Barack Obama’s signature health care law, saying, “Obamacare is on the ballot.”

9:55 a.m. ET, October 14, 2020

You might hear the term "stare decisis" a lot today. Here's what it means.

From CNN's Ariane de Vogue

Michael Reynolds/Pool/AFP/Getty Images
Michael Reynolds/Pool/AFP/Getty Images

It's the second day senators get to question Supreme Court nominee Judge Amy Coney. They're again asking about a doctrine called “stare decisis” — it’s a legal term that refers to a court’s practice of following precedent. It translates into “stand by the thing decided.”  

Why does it matter? It’s actually a critical doctrine that guides justices on when they should vote to overturn a previously decided case. It often comes up in confirmation hearings as senators push to see a particular nominee’s view on the doctrine. Justice Clarence Thomas, for example, has said he has little respect for it, while other justices believe it's an important stabilizing factor for the court. 

What Barrett has said about stare decisis: Democrats are likely to turn to Barrett's own writing from 2013, when she was a professor at Notre Dame and she penned an essay centered on the doctrine. While she pointed to its strength, her critics focus on the fact that at one point she suggested room for some cases to be overturned.

"If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging," she wrote at the time.

"Court watchers," she added, "embrace the possibility of overruling, even if they may want it to be the exception rather than the rule."

9:08 a.m. ET, October 14, 2020

The hearing has begun

Pool
Pool

The third day of confirmation hearings for Supreme Court nominee Amy Coney Barrett has begun. 

Barrett will face more questions from the Senate Judiciary Committee today. 

The 22 senators on the Judiciary Committee get a second round of 20 minutes to question the nominee. 

"There is an opportunity here to explore the nominee's thinking, to the extent she can share her thoughts without deciding a particular case that comes before her," Chair Lindsey Graham said as he opened today's hearing.

The committee has scheduled a Thursday hearing 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.

9:02 a.m. ET, October 14, 2020

All 22 senators on the Senate Judiciary Committee will be able to question Barrett again today

From CNN's Jeremy Herb

Greg Nash/Pool/Getty Images
Greg Nash/Pool/Getty Images

Democrats get their last chance to try to pin down President Trump's Supreme Court nominee, Amy Coney Barrett, on Wednesday with a second lengthy day of questions in the Senate Judiciary Committee confirmation hearings.

Today, the 22 senators on the Judiciary Committee each get 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 Nov. 3 election.

Senate Judiciary Chair Lindsey Graham has said the committee is expected to vote on Barrett's nomination on Oct. 22, setting up a Senate floor vote one week before the election.

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.

8:45 a.m. ET, October 14, 2020

Democratic senator says Barrett indicated ACA and Roe v. Wade are “up for grabs”

From CNN's Adrienne Vogt

Anna Moneymaker/Pool/AFP/Getty Images
Anna Moneymaker/Pool/AFP/Getty Images

Sen. Dick Durbin, a Democratic senator who questioned Supreme Court nominee Amy Coney Barrett during yesterday’s confirmation hearing, said that Barrett’s responses indicated that President Trump looms over her nomination. 

“When she was asked about the three central points behind her nomination — the question of the future of the Affordable Care Act, Roe v. Wade and whether she would be doing the President's bidding if there is an election contest — she basically made it clear that she wasn't going to make any commitments at all. That tells me, sitting on the other side of the table, that those are frankly up for grabs,” Durbin said on CNN’s “New Day.” 

“Let's face it here, she is a personable, likable, intelligent person who has done great things in her life. No question about that. But there is an orange cloud over her nomination,” he added. 

Barrett repeatedly said that she would follow the law and not let her personal opinions influence her decisions.

The judge said that she does not think that Roe v. Wade falls into the category of being “super precedent,” protected from being overturned.

“You have to, I guess, anticipate that she would be a vote as the President promises that would overturn these protections for women's health care,” Durbin said. 

Barrett is back in the Senate Judiciary Committee today for a second day of questioning.

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