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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10:40 a.m. ET, October 13, 2020

Barrett refuses to commit on Roe v. Wade

From CNN's Joan Biskupic, Ariane de Vogue and Cat Gloria 

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

Under questioning by the senior senators of each side of the aisle — GOP Sen. Lindsey Graham and Democratic Sen. Dianne Feinstein — Judge Coney Barrett repeatedly declined to give her views of Roe v. Wade and Supreme Court precedent that preserved that 1973 landmark.

“I have no agenda to try to overrule Casey,” Barrett told Feinstein, referring to the 1992 court ruling that said states may not put an 'undue burden' on a woman’s constitutional right to end a pregnancy.

To questions from Sen. Feinstein, she said she did not want to comment on how she would rule: “I can’t express views on cases. I can’t pre-commit.”

Feinstein invoked Justice Antonin Scalia, who Barrett has said was her mentor, pointing out that he believed Roe was wrongly decided. She asked Barrett if she agreed with Scalia.

Barrett responded by invoking liberal Justice Elena Kagan, who declined to “grade precedent” during her hearing or give a “thumbs up or a thumb down” in any case, particularly one as controversial as Roe.

Watch the exchange with Sen. Graham on abortion here: 

10:58 a.m. ET, October 13, 2020

Does Trump have the authority to delay the election? Here's Barrett's answer.

Getty Images
Getty Images

Sen. Dianne Feinstein asked Judge Barrett if President Trump has the authority to delay the general election.

Here's what Barrett said:

"Senator, if that question ever came before me, I would need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion writing process. So if I give off-the-cuff answers I would be basically a legal pundit, and I don't think we want judges to be legal pundits. We want them to look at cases with an open mind." 

Some context: On July 30, Trump openly floated the idea of delaying the general election. He has no authority to delay an election, and the Constitution gives Congress the power to set the date for voting. Lawmakers from both parties said almost immediately there was no likelihood the election would be delayed and even some of Trump's allies said his message reflected the desperate flailing of a badly losing candidate.

Watch:

10:10 a.m. ET, October 13, 2020

Amy Coney Barrett was just asked about her Catholic faith. Here's how she answered.

From CNN's Aditi Sangal

Drew Angerer/Getty Images
Drew Angerer/Getty Images

In an exchange with Sen. Lindsey Graham, Judge Amy Coney Barrett was asked about her faith. Remember: When Barrett first appeared before the Senate Judiciary Committee in 2017 when she was nominated for a US appeals court seat, Republican and Democratic senators alike probed her religious views.

Here's how the exchange went down today:

Graham: Can you set aside whatever Catholic beliefs you have regarding any issue before you? 

Barrett: I can. I have done that in my time on the Seventh Circuit. If I stay on the Seventh Circuit I will continue to do that, if I'm confirmed to the Supreme Court I will do that still. 

Graham: I would dare say that there are personal views on the Supreme Court and nobody questions whether our liberal friends can set aside their beliefs. There’s no reason to question yours in my view. So the bottom line here is that there is a process. You fill in the blanks were this about guns and Heller, abortion rights.

She also explained the process of how an abortion case would be heard, starting with a trial in a district court. Once a lawsuit did reach the Supreme Court, she said:

"It would be the full judicial process. It would be briefs, oral argument, conversations with law clerks in chambers, consultation with colleagues, writing an opinion, really digging down into it. It's not just a vote. You all do that, you all have a policy and cast a vote. The judicial process is different," she said.

Some background: The question about Barrett's faith came after Graham asked her about issues like abortion and guns 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.

You can read more on her record here.

9:53 a.m. ET, October 13, 2020

Here's why Barrett wasn't formally sworn in today

From CNN's Manu Raju

Supreme Court nominee Judge Amy Coney Barrett is sworn into her Senate Judiciary Committee confirmation hearing on Capitol Hill on October 12.
Supreme Court nominee Judge Amy Coney Barrett is sworn into her Senate Judiciary Committee confirmation hearing on Capitol Hill on October 12. Shawn Thew/Pool/AFP/Getty Images

Judge Amy Coney Barrett wasn't formally sworn in at the start of today's hearing. 

A committee aide said Barrett is “technically still sworn from yesterday since this is a continuation of the same hearing."

Barrett was sworn in yesterday before she gave her opening statement.

9:50 a.m. ET, October 13, 2020

Barrett didn't answer specifically when asked if she'll recuse herself in the Affordable Care Act case

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

Sen. Lindsey Graham asked Judge Amy Coney Barrett if she felt like you should recuse herself from a case involving the Affordable Care Act because she is being nominated by President Trump.

Barrett did not answer the question specifically, instead saying, "that's not a question that I could answer in the abstract."

Here's what she said:

"Senator, recusal itself is a legal issue, you know, theres a statute, 28 us c4-55 that governs when judges have to recuse. There's precedent under that rule. Justice Ginsburg in explaining the way recusal works says it's always up to the individual justice but always involves colleagues with the other eight justices. So that's not a question that I could answer in the abstract."

Graham followed up by asking if, when it comes to recusal, if Barrett "will do what the Supreme Court requires of every justice." She responded: "I will."

 Watch:

9:40 a.m. ET, October 13, 2020

Barrett says she owns a gun, but could fairly judge a case on gun rights

Erin Schaff/Pool/AFP/Getty Images
Erin Schaff/Pool/AFP/Getty Images

President Trump’s pick for the Supreme Court says her family owns a gun and that she thinks she can fairly judge a guns case. Asked by Senate Judiciary chairman Senator Lindsey Graham if she owns a gun, Barrett replied, “we do own a gun”. 

The Supreme Court has gone a decade without acting on a major case concerning the Second Amendment, an issue that could receive rare attention in the future by the high court should Judge Amy Coney Barrett be confirmed to the bench in the coming weeks.

The court has resisted taking up a significant Second Amendment case since the 2008 case District of Columbia v. Heller – which held that the Second Amendment protects an individual's right to possess a firearm – and a 2010 follow-up, turning away 10 gun rights cases in the last term alone.

Should the Senate confirm Barrett, who once clerked for Supreme Court Justice Antonin Scalia, she could provide the extra vote Justice Clarence Thomas has been advocating for to take up Second Amendment cases.

Here's how that exchange went:

Graham: Okay. So when it comes to your personal views about this topic, do you own a gun?  

Barrett: We do own a gun. 

Graham: Okay. All right. Do you think you could fairly decide a case even though you own a gun?

Barrett: Yes.

9:48 a.m. ET, October 13, 2020

Sen. Lindsey Graham kicked off today's hearing by attacking the Affordable Care Act

From CNN's Jeremy Herb

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

Senate Judiciary Chair Lindsey Graham kicked off today's Supreme Court confirmation hearing with a sustained attack on former President Barack Obama’s signature health care law, seeking to preempt Democratic criticisms of Amy Coney Barrett’s nomination to the Supreme Court.

“From my point of view, Obamacare has been a disaster for the state of South Carolina,” Graham said. “We want something better. We want something different.”

Democratic and Republican lawmakers will have an opportunity on Tuesday to question Barrett, President Trump's Supreme Court nominee, during a lengthy second day of Senate hearings. 

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.

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