Barrett doesn't say one way or another if President Trump can pardon himself
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
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.
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
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
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
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
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
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 has repeatedly fallen back on the "Ginsburg standard." Here's what that means.
From CNN's Jeremy Herb and Clare Foran
Frequently during her confirmation hearings, Judge Amy Coney Barrett fell back on a standard that's been attributed to the late Ruth Bader Ginsburg, whom Barrett would replace, not to discuss specific cases because they could come before the court.
Under questioning from Sen. Pat Leahy, a Vermont Democrat, Barrett would not say whether she would recuse herself from cases involving the 2020 election. Leahy argued Barrett should recuse herself, if confirmed, because Trump has said he's moving a nomination forward because the election is likely to go before the Supreme Court.
"I have made no precommitments to anyone," Barrett said, arguing the court had a legal process to consider recusal. "I can't offer an opinion on recusal without short-circuiting that entire process."
Later, Barrett said she hoped "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."
Barrett also declined to say whether the Constitution gave Trump the authority to postpone the date of the election. Doing so would require an act of Congress, but Barrett declined to weigh in, saying that doing so would make her "basically a legal pundit."
She also declined to discuss questions about what constitutes voter intimidation. And she responded to a question from Democratic Sen. Cory Booker of New Jersey about Trump refusing to accept a peaceful transition by saying she didn't want to get pulled into the "political controversy."
Barrett apologized on Tuesday for a comment she made early in the hearing saying she would never discriminate "on the basis of sexual preference," a term that implies being gay or lesbian is a choice.
"I certainly didn't mean and, you know, would never mean to use a term that would cause any offense in the LGBTQ community," Barrett said. "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."