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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5:45 p.m. ET, October 13, 2020

Barrett apologizes for causing offense after Sen. Hirono slams her for using term "sexual preference"

Supreme Court nominee Amy Coney Barrett.
Supreme Court nominee Amy Coney Barrett. Greg Nash/Pool/AP

Democratic Sen. Mazie Hirono slammed Judge Amy Coney Barrett for using the term "sexual preference" earlier in the hearing to describe those in the LGBTQ community, telling Barrett that the language is an "offensive and outdated term."

"This morning Sen. Feinstein asked you a question about the Supreme Court 2015 decision in Obergefell v. Hodges, a case in which the court recognized the constitutional right to same-sex marriage and I was disappointed that you wouldn't give a direct answer if you agreed with the majority in that case or if you instead agreed with your mentor Justice Scalia that no such right exists in the Constitution," she said.

"Even though you didn't give a direct answer I think your response did speak volumes, not once, but twice you used the term sexual preference to describe those in the LGBTQ community. And let me make clear, sexual preference is an offensive and outdated term. It is used by anti-LGBTQ activists to suggest that sexual orientation is a choice. It is not," Hirono continued.

The senator said that if it is Barrett's view "that sexual orientation is merely a preference," then the LGBTQ community should be "rightly concerned" whether the judge would uphold their constitutional right to marry.

Following Hirono's questioning, Barrett apologized for causing any offense by using the term.

"I certainly didn't mean and would never mean to use a term that would cause any offense in the LGBTQ community. So if I did, I greatly apologize for that. I simply meant to be referring to Obergefell's holding with respect to same-sex marriage," Barrett said.

Watch Sen. Hirono:

4:58 p.m. ET, October 13, 2020

Sen. Tillis says he's enrolled in two studies following his Covid-19 diagnosis

Alex Edelman/Pool/AFP/Getty Images
Alex Edelman/Pool/AFP/Getty Images

Republican Sen. Thom Tillis announced today during Amy Cohen Barrett's confirmation hearing that he's participating in two studies after testing positive for coronavirus.

Tillis, a member of the Senate Judiciary Committee, also submitted a letter from his doctor that he said indicates he been "fully complied with CDC guidelines."

The North Carolina senator told committee members that during his time in quarantine, he enrolled in the studies and will be donating blood to enroll at the University of North Carolina at Chapel Hill.

"Because this is being aired, I hope anyone who has recovered from Covid will do their part to try heal this country from the health challenges that Covid has presented us," Tillis said. "I intend to do my part."

About Tillis' Covid-19 diagnosis: He tested positive for coronavirus just days after attending a White House event where President Trump nominated Barrett to the Supreme Court.

Watch the moment:

4:05 p.m. ET, October 13, 2020

The hearing is back in session

Rod Lamkey/Pool/AFP/Getty Images
Rod Lamkey/Pool/AFP/Getty Images

The Senate Judiciary committee is back in session, and senators will continue to question President Trump's Supreme Court nominee, Amy Coney Barrett, at her confirmation hearing.

Committee Chair Lindsey Graham said they plan to take a 30-minute dinner break around 6:30 p.m. ET.  

There will be a second day of questioning tomorrow.

6:02 p.m. ET, October 13, 2020

Hawley criticizes Democrats highlighting Barrett's faith, though Republicans brought it up more

From CNN's Ariane de Vogue

Samuel Corum/Getty Images
Samuel Corum/Getty Images

Picking up where he left off yesterday, Republican Sen. Josh Hawley once again criticized his colleagues for highlighting Amy Coney Barrett’s faith, even though Republicans have spoken about her faith more than Democrats. 

Today, Hawley pointed to the Constitution’s so called “religious test clause” that specifies that “no religious test shall ever be required as a qualification to any office of public trust under the United States.”

“I’m not aware of any law or provision of the Constitution that says that if you are a member of the Catholic church and adhere to the teachings of the Catholic church, or you have religious convictions in line with your church teaching that you are therefore barred from office,” he said. “Are you aware of that in the Constitution to that effect?"

“I would think the test clause would make it unconstitutional,” Barrett responded. 

 

4:01 p.m. ET, October 13, 2020

The hearing is on a break

Tasos Katopodis/Getty Images
Tasos Katopodis/Getty Images

The hearing will resume at 3:54 p.m. ET, with Sen. Richard Blumenthal beginning his round of questions.

The hearing will then take a dinner break around 6:30 p.m. ET. Democratic vice presidential nominee Sen. Kamala Harris will likely begin her round of questions closer to approximately 7:30 p.m. ET.

3:59 p.m. ET, October 13, 2020

Barrett: I'm "not here on a mission to destroy the Affordable Care Act"

Samuel Corum/Getty Images
Samuel Corum/Getty Images

Judge Amy Coney Barrett appeared annoyed when pushed by Democratic Sen. Chris Coons about why she criticized Chief Justice John Roberts' opinion on the Affordable Care Act.

She reiterated she has not made any commitments on how she would rule in any particular case, adding that she is “not here on a mission to destroy the Affordable Care Act. I’m just here to apply the law and adhere to the rule of law.”

Here's the exchange between the two: 

Coons: Why did you choose to single him [Chief Justice Roberts] out for criticism in that constitutional commentary article?  
Barrett: Well Senator Coons I was writing about the majority opinion and Chief Justice Roberts was the author of the opinion. So I was simply discussing what the five Justice majority adopted as its reasoning and I’d like to emphasize again that I was not attacking Chief Justice Roberts or impugning his character or anything of that sort. It was an academic critique and I want to emphasize you know just given these list line of questions you’re asking that I am standing before the committee today saying I have the integrity to act consistently with my oath and apply the law as the law, to approach the ACA and every other statute without bias. And I have not made any commitments or any deals or anything like that. I am not here on a mission to destroy the Affordable Care Act. I’m just here to apply the law and adhere to the rule of law.  

Watch more:

4:12 p.m. ET, October 13, 2020

Barrett again won't commit to recusing herself of election case, but assures senators of her integrity 

Asked by Democratic Sen. Chris Coons if she would recuse herself from any case arising from disputes surrounding election results, Judge Amy Coney Barrett again declined to make any commitments, and instead pointed to her record on the 7th Circuit Court of Appeals.

"I want to be very clear for the record and to all members of this committee, that no matter what anyone else may think or expect, I have not committed to anyone or so much as signaled — I've never even written — I've been in a couple of opinions in the 7th Circuit that have been around the edges of election law, but I haven't even written anything that I would think anybody could reasonably say, 'oh, this is how she might resolve an election dispute,'" Barrett said. 

"I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people," she continued. 

The judge said she would commit, however, to "consider all factors that are relevant" to the question that would require a recusal when "there is an appearance of bias."

"I promise you that if I were confirmed and if an election dispute arises, both of which are ifs, that I would very seriously undertake that process and I would consider every relevant factor. I can't commit to you right now for the reasons that we've talked about before, but I do assure you of my integrity and I do assure you that I would take that question very seriously," Barrett said.

3:39 p.m. ET, October 13, 2020

Barrett says she doesn't consider Roe v. Wade a super precedent

From CNN's Maureen Chowdhury

Supreme Court nominee Amy Coney Barrett said that she does not consider Roe v. Wade as a super precedent case, when pressed by Democratic Sen. Amy Klobuchar.

Klobuchar began her line of questioning by asking Barrett about Brown v. Board of Education and whether she believed that it was considered precedent and therefore shouldn't be overruled.

Barrett responded by stating: "Well it is precedent... It's super precedent. People consider it to be on that very small list of things that are so widely established and agreed upon by everyone, calls for its overruling don't exist."

Klobuchar followed by asking if Barrett if she thought Roe v. Wade was a super precedent.

"Well people use super precedent differently. The way that it's used in the scholarship and the way that I was using it in the article the that you're reading from was to define cases that are so well settled that no political actors and no people seriously push for their overruling and I'm answering a lot of questions about Roe, which I think indicates that Roe doesn't fall in that category," Barrett said
"And scholars across the spectrum say, that doesn't mean that Roe should be overruled, but descriptively it does mean that it's not a case that everyone has accepted and doesn't call for its overruling," she added.

Klobuchar then pressed Barrett about why she was willing to call Brown v. Board of Education a super precedent, even though the Supreme Court has not classified it as such, but will not say the same about Roe v. Wade, despite the Supreme Court's ruling opinion describing it as a super precedent in the Planned Parenthood v. Casey case.

Barrett responded, "Well, senator I can just give you the same answer that I just did."

This is how the moment played out:

2:51 p.m. ET, October 13, 2020

Barrett declines to answer questions on voter intimidation

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

Sen. Amy Klobuchar brought up efforts by President Trump to get his supporters to the polls to observe voting activity and asked Judge Amy Coney Barrett if under federal law it is illegal to intimidate voters at the polls.

Barrett declined to respond directly to the question, saying: "I can't characterize the facts in a hypothetical situation, and I can't apply the law to a hypothetical set of facts." 

She continued: "I can only decide cases as they come to me litigated by parties on a full record after fully engaging precedent, talking to colleagues, writing an opinion, and so I can't answer questions like that." 

Barrett also did not directly answer Klobuchar's question about whether voters would feel intimidated by the presence of "armed civilian groups at the polls."

"Senator Klobuchar, you know, that is eliciting — I'm not sure whether to say it is eliciting a legal opinion from me, because the reasonable person standard, as you know, is one common in the law, or just an opinion as a citizen. But, it’s not something, really, that’s appropriate for me to comment on," Barrett said.

Watch the moment unfold: