Amy Coney Barrett's confirmation hearing: Day 2

By Meg Wagner, Mike Hayes, Veronica Rocha and Melissa Macaya, CNN

Updated 8:37 PM ET, Tue October 13, 2020
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9:33 a.m. ET, October 13, 2020

Barrett: "If I'm confirmed you would not be getting Justice Scalia, you would be getting Justice Barrett"

Stefani Reynolds/Pool/AFP/Getty Images
Stefani Reynolds/Pool/AFP/Getty Images

Judge Amy Coney Barrett says that she is an "originalist" when it comes to interpreting the Constitution. At the second day of confirmation hearings on Tuesday, she explained what that means.

Barrett said being an originalist means that she interprets the US Constitution as a law and believes that the meaning of that law does not change over time.

"I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn't change over time, and it's not up to me to update it or infuse my own policy views into it," she said.

Barrett said she shares this originalist philosophy with Supreme Court Justice Antonin Scalia, who she worked for as a clerk.

"I would say that Justice Scalia was obviously a mentor and, as I said when I accepted the President's nomination, that his philosophy is mine, too," Barrett said.

"But I want to be careful to say that if I'm confirmed, you would not be getting Justice Scalia, you would be getting Justice Barrett," she added.

Watch the moment:

9:39 a.m. ET, October 13, 2020

Barrett is being asked about abortion. Here's her record advocating for limits to abortion rights.

From CNN's Ariane de Vogue

Susan Walsh/Pool/AFP/Getty Images
Susan Walsh/Pool/AFP/Getty Images



Sen. Lindsey Graham just asked Amy Coney Barrett about abortion rights.

For Barrett's supporters and detractors alike, it's clear that her confirmation would cement a conservative majority on the Supreme Court to limit abortion access.

Even if the court doesn't overturn Roe v. Wade, there are cases percolating in courts nationwide that would chip away at an individual's right to decide whether to terminate a pregnancy and give the state room to second-guess that decision.

In 2006, Barrett added her name to a list of "citizens of Michiana" who signed a "right to life ad," sponsored by a group that opposes abortion, that appeared in the South Bend Tribune. The ad from the Saint Joseph County Right to Life calls for putting "an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children."

Ten years later, Barrett told an audience at Jacksonville University she believed that while Roe wouldn't be overturned, access to abortion could eventually be limited.

"I don't think the core case — Roe's core holding that, you know, women have a right to an abortion — I don't think that would change," Barrett said. "But I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics — I think that would change."

What comes next: Supporters of abortion rights are watching more than 15 cases percolating in the lower courts that will likely arrive at the Supreme Court in the coming terms. They include issues such as requirements for the burial of fetal tissue, hospital admission rules and parental notification, as well as bans on abortion as early as six, eight or 10 weeks into pregnancy.

How far Barrett would go is a question roiling the country as progressives lament that Trump chose to replace the liberal late Justice Ruth Bader Ginsburg with a 48-year-old conservative jurist who is the feminist icon's ideological opposite, especially when it comes to reproductive health.

Barrett's record indicates she believes the Roe v. Wade decision is an act of "judicial imperialism," Republican Sen. Josh Hawley of Missouri said at a Judiciary Committee meeting last Thursday. "I do believe Judge Amy Coney Barrett's record bears that out."

On the bench, Barrett, a deep thinker and meticulous jurist who was well aware long before her nomination that she was on Trump's short list, has left a careful trail. That trail reveals votes open to more restrictive laws and a state's expanded ability to regulate abortion, as well as a judicial philosophy aligned with that of her mentor, the late Justice Antonin Scalia, who believed Roe v. Wade was wrongly decided.

here

9:12 a.m. ET, October 13, 2020

The second day of Amy Coney Barrett's hearing just started

Shawn Thew/Pool/AFP/Getty Images
Shawn Thew/Pool/AFP/Getty Images

Senate Judiciary Chair Lindsey Graham just gaveled in today's confirmation hearing for Trump's Supreme Court nominee Amy Coney Barrett.

Senators on the committee will have the chance to ask Barrett questions. In the first round, each senator will get 30 minutes to question Barrett.

9:23 a.m. ET, October 13, 2020

Democratic senator says he will focus on health care while questioning Barrett

From CNN's Adrienne Vogt

Delaware Sen. Chris Coons, a member of the Judiciary Committee, said he is planning on asking Supreme Court nominee Amy Coney Barrett about health care at today's hearing. 

“Why are we doing this hearing now in the middle of a pandemic when the Senate is shut down because there's three senators infected; there's been an outbreak at the White House that's infected more than 35 people, so why this rush?” Coons said on CNN’s “New Day.”

“I think the answer is hiding in plain sight. President Trump promised he would only choose a nominee who would overturn the Affordable Care Act, taking away health care protections from a majority of Americans,” he added.

Coons said he will be asking Barrett about written statements from her in 2017 criticizing Chief Justice John Roberts and his decision upholding the ACA.

“She’s to the right of Justice Scalia,” Coons said. “She has made it clear that she would join Justice Thomas and others in reaching back and overturning long-settled cases from 20 or 30 years ago. She is at one end of the spectrum in terms of her expressed willingness to overturn precedent.”

Remember: The Supreme Court will hear a challenge from GOP-led states and the Trump administration to Obamacare one week after Election Day. Barrett could play a role in that decision if she is confirmed before then.

Watch more from Coons:

8:45 a.m. ET, October 13, 2020

More than a dozen protesters were arrested before yesterday's hearing

From CNN's Ali Main

A protestor is arrested by Capitol Police after blocking an entrance to the Dirksen Senate Office Building the morning that the confirmation hearings begin for Judge Amy Coney Barrett on Capitol Hill on Monday.
A protestor is arrested by Capitol Police after blocking an entrance to the Dirksen Senate Office Building the morning that the confirmation hearings begin for Judge Amy Coney Barrett on Capitol Hill on Monday. Samuel Corum/Getty Images

Police arrested 21 protesters before Monday's confirmation hearing for Judge Amy Coney Barrett. 

They were charged with obstructing a building on Capitol Hill, according to Capitol Police spokesperson Eva Malecki.

Malecki said just before the hearing began Capitol Police responded to "unlawful demonstration activities" outside of Dirksen Senate Office Building.

One person was also charged with unlawful conduct, Malecki said.

8:35 a.m. ET, October 13, 2020

Sen. Thom Tillis' doctor clears him to attend the hearing in-person after Covid-19 diagnosis

From CNN's Phil Mattingly 

Sen. Thom Tillis is seen on a TV participating remotely during Supreme Court Justice nominee Judge Amy Coney Barrett's Senate Judiciary Committee confirmation hearing on October 12.
Sen. Thom Tillis is seen on a TV participating remotely during Supreme Court Justice nominee Judge Amy Coney Barrett's Senate Judiciary Committee confirmation hearing on October 12. Erin Schaff/Pool/Getty Images

Sen. Thom Tillis, who CNN already reported would appear in person today, has released a letter from his physician clearing him to participate in-person in the confirmation hearing of Amy Coney Barrett today. 

Tillis tested positive for coronavirus just days after attending a White House event where President Trump nominated Barrett.

In the letter, Tillis' personal physician said the senator fulfilled the requirements to end isolation yesterday afternoon.

Here's what Tillis’ personal physician, Dr. Faircloth, wrote:

The CDC guidelines for ending isolation re: those that know they are positive for the new coronavirus are simple. Regarding your case, there are 3 criteria that are CDC guidelines to meet. One must complete 10 days of quarantine from testing positive when they were diagnosed asymptomatically like yourself. Second, one must be fever free for at least 24 hours without the use of fever reducers. Last, one must have all other symptoms improve. You will fulfill all of these CDC criteria of ending your COVID-19 isolation at 4 pm today, 10/12/2020.”

Tillis' office also announced he’s enrolled in an antibody study and will soon join a UNC effort to study immunology and Covid-19

8:20 a.m. ET, October 13, 2020

Democrats brought up Obamacare at yesterday's hearing. Here's why.

From CNN's Lauren Fox

Senate Democrats were united in driving home one message in their opening remarks during the first day day of Amy Coney Barrett's confirmation hearing: President Trump's nominee could threaten the future of the Affordable Care Act.

Today, Democratic and Republican senators will have an opportunity to question Barrett on her record and stance on health care.

In a series of statements Monday, Democrats stuck to a script that was crafted by members of leadership and Democratic presidential candidate Joe Biden weeks ago, a message that Democrats hope will win them political support at the polls even if it cannot keep Barrett off the bench.

Remember: The Supreme Court hears a challenge from GOP-led states and the Trump administration to Obamacare one week after Election Day.

"Republicans finally realized the ACA is too popular to repeal in Congress, so now they are trying to bypass the will of voters and have the Supreme Court do their dirty work," Democratic vice presidential candidate Kamala Harris said. "If Republicans succeed in striking down the ACA, insurance companies will be able to deny coverage to children with serious conditions."

Every single Democrat on the committee brought with them a photograph and a story of at least one constituent for whom the Affordable Care Act had made a difference.

An aide to the committee told CNN that after multiple member-level discussions, members of the committee agreed that not only health care, but the personal stories of people across the country would be the most effective strategy for day one.

"Senators knew from the beginning they wanted to make this as tangible to people as possible, focusing on the what's at stake message and the real-life effects of a Justice Barrett's decisions. That goal and subsequent member conversations led to the decision to use the personal stories," a Democratic aide on the committee said.

Read the full story here.

8:36 a.m. ET, October 13, 2020

Senators will question Trump's SCOTUS nominee today. Here are the key topics we expect to come up.

From CNN's Clare Foran and Ariane de Vogue

Win McNamee/Getty Images
Win McNamee/Getty Images

Following Amy Coney Barrett's opening statement yesterday, the committee adjourned until today for a round of questioning expected to begin at 9:00 a.m. ET.

Barrett will be grilled by Senate Judiciary Committee members over the course of today and Wednesday. Senators have the option of appearing and questioning the witness in person or remotely.

Here are some topics that will likely take center stage:

Voting rights: Before even reaching substantive constitutional questions, Democrats are expected to ask Barrett whether she will recuse herself from any election-related litigation that reaches the high court. Although it's a long shot, it is always possible the Supreme Court will once again be called upon to decide the election.

"I think this will end up at the Supreme Court," Trump said at a recent White House event. "And I think it's very important that we have nine justices."

Barrett is likely to avoid the question, but if she is confirmed it will be her own choice whether to recuse.

The Affordable Care Act: Democrats during Monday's hearing turned the focus on the Affordable Care Act. A week after Election Day, the Supreme Court will hear the most important case of the term and decide whether to invalidate the entire law. The decision could strip millions of their health care during a pandemic. Critics of Barrett will point to some of her previous writings, before she took the bench, where she expressed skepticism about the reasoning Chief Justice John Roberts used back in 2012 to uphold the law under the taxing power.

Roe v. Wade: Democrats will also seize on positions Barrett took before she was a judge, on Roe v. Wade — the 1973 landmark decision legalizing abortion. Unlike other recent nominees, there is a significant paper trail detailing Barrett's views on abortion, and Roe, as a law professor at the University of Notre Dame.

She signed a petition, for example, with other faculty, for a paid advertisement reaffirming the school's commitment "to the right to life" and criticizing Roe. "In the 40 years since the infamous Roe v. Wade decision over 55 million unborn children have been killed by abortions," the ad reads.

The Second Amendment: Last term, four conservative justices urged the court to take up a Second Amendment case, yet by the end of the term they had declined to do so. That suggests there wasn't the necessary five votes. Now, if Barrett is nominated, she could be that vote.

In one decision, Kanter v. Barr, she dissented when her colleagues upheld a law barring convicted felons from possessing a firearm. The language she used in the opinion tracked closely with language used by conservative Justice Clarence Thomas. Like Thomas, Barrett suggested that lower courts are thumbing their nose at Supreme Court precedent to uphold gun restrictions treating the Second Amendment like a "second class right."

In the upcoming hearings Sen. Richard Blumenthal, a Democrat, has vowed to make her views "front and center" to show how "Judge Barrett's extremist, hard-right views of the Second Amendment will do real harm to real lives in real ways."

Same-sex marriage: Barrett does not have a robust record on same-sex marriage, but in a 2016 speech at Jacksonville University made while she was still a law professor, she laid out both sides of the debate.

She framed it as a "who decides" question. That is very similar to how Roberts framed the issue when he dissented in the landmark 2015 case Obergefell v. Hodges, which cleared the way for same-sex marriage nationwide. He said the issue would have been better handled by the political branches. Speaking broadly, Barrett was asked about the future of the court in the speech and she seemed to align herself with Roberts' thinking.

Read more here.

Watch Amy Coney Barrett's opening statement at confirmation hearing: