Supreme Court nominee Amy Coney Barrett testifies during the third day of her confirmation hearings before the Senate Judiciary Committee on Capitol Hill in Washington, Wednesday, Oct. 14, 2020. (Jonathan Ernst/Pool via AP)

Takeaways: Pardon power, silent mics on Barrett's final day

October 14, 2020 - 3:52 pm

WASHINGTON (AP) — Supreme Court nominee Amy Coney Barrett faced a second day of questions Wednesday from the Senate Judiciary Committee as Democrats kept up their focus on health care three weeks before the Nov. 3 presidential election.

Barrett again avoided taking positions on a variety of subjects and rulings, saying it would be inappropriate to comment on cases that may come before her as a justice. Republicans appear on track to push ahead with her confirmation before the election.

Takeaways from Day Three of the hearing:

HEALTH CARE PLAYS A STARRING ROLE — AGAIN

Democrats again pressed Barrett over her views on the Affordable Care Act, noting that President Donald Trump has made clear he wishes to undo the Obama-era health law. Democrats say Trump and Senate Republicans are rushing to confirm Barrett so she can be seated in time to hear a case next month challenging that law.

Sen. Dick Durbin, D-Ill., said there’s an “orange cloud” hanging over Barrett's nomination — a political jab at Trump's tan and a reference to the president's oft-stated wish to overturn “Obamacare.”

Barrett told senators she is not “hostile” to the law and promised to consider all arguments.

Republicans played down the threat to the health law posed by the court case. “This hearing has been more about Obamacare than it has you,'' said the committee chairman, Sen. Lindsey Graham, R-S.C., told Barrett. He added: “Obamacare is on the ballot'' next month.

Republicans object to the health law because “it was written and passed on a partisan line,'' Graham said. ”Most big changes in society have more buy-in (from the public and the two political parties) than that. You’re talking about one-fifth of the American economy.''

Still, Graham and other Republicans stressed that even if parts of the law are struck down, important aspects such as coverage for preexisting conditions could still be preserved, under a concept known as severability. “The doctrine of severability presumes — and its goal is — to preserve (key parts of) the statute if that is possible,'' Graham said.

Barrett agreed, saying, "The presumption is always in favor of severability.''

Republicans have introduced bills to protect Americans with preexisting conditions and bring down drug prices, said Sen. Chuck Grassley, R-Iowa. "And if we act, (voters) don’t have to worry about you doing away with preexisting conditions in some future case down the road,'' he told Barrett.

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NO ONE IS ABOVE THE LAW

On another issue where Trump's views and tweets are well-known, Barrett declined to say whether a president can pardon himself. But she said she agrees no one is above the law.

Under questioning from Sen. Patrick Leahy, D-Vt., Barrett said the question of a self-pardon has never come before the court. “That question may or may not arise, but it is one that calls for a legal analysis of what the scope of the pardon power is,'' Barrett said. She said offering an opinion now ”would be opining on an open question ... it’s not one in which I can offer a view.''

Multiple investigations are looking into Trump’s taxes, his businesses and his associates, and he has said he has “an absolute right” to pardon himself.

While declining to address whether Trump would be able to pardon himself, Barrett said she agreed with Leahy’s assertion “no one is above the law.”

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NO PREVIEW OF JUDICIAL VIEWS

For the second straight day, Barrett repeatedly declined to give her personal views, or to preview how she might rule, on issues that could become before the court. Like other Supreme Court nominees, Barrett said she was prohibited from expressing those opinions by the “canons of judicial conduct.”

In addition to a possible presidential pardon and whether to overturn the health law, Barrett said she could not give an opinion on whether she would withdraw from any election-related litigation involving Trump. He said when he nominated her that he wanted the full nine justices in place before any possible election decisions.

Barrett also said she could not answer whether Trump could delay the general election, an idea the president floated earlier this year even though he does not have authority under the Constitution to unilaterally change the date.

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BREAKTHROUGH FOR CONSERVATIVE WOMEN

Graham opened Wednesday’s hearing by proclaiming Barrett’s expected confirmation a historic victory for conservative women. Like “conservatives of color,’’ conservative women, he said, are often “marginalized” in public life.

“This hearing, to me, is an opportunity to not punch through a glass ceiling but a reinforced concrete barrier around conservative women,’’ Graham told Barrett. “You are going to shatter that barrier.’’

Graham said he has “never been more proud of a nominee” than he is of Barrett, a federal appeals court judge from Indiana. “This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology, and she is going to the court. This is history being made, folks.’’

Barrett has declined to say how she would rule on a challenge to the Roe v. Wade decision that established abortion rights, but she has made clear she opposes abortion rights and signed a 2006 letter objecting to “abortion on demand.”

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SHIFTING THE SUPREME COURT BALANCE

Sen. Chris Coons, D-Del., asked Barrett whether she would acknowledge that her confirmation would mean a shift to the right on the Supreme Court that would have “profound” implications.

Coons referred to an interview that Barrett gave where she spoke of a balance shift if Merrick Garland, a federal appeals court judge nominated in 2016 by President Barack Obama, were elevated to the high court. Obama picked Garland after Justice Antonin Scalia's death, but Republicans in the Senate refused give Garland a hearing, citing the presidential election that was months away that year.

Barrett told Coons she was referring in the interview to Garland’s judicial approach, not his more liberal views. Unlike the conservative Scalia, Garland was not an originalist, which refers to a way of interpreting the Constitution that focuses on the text and Founding Fathers’ intentions in resolving legal disputes. Originalists such as Scalia and Barrett argue that new legislation, rather than a new interpretation of the Constitution, is the best way to bring about social change.

"It would be away from one balance and toward another in terms of how judges think about the text,'' Barrett said.

Coons noted that Barrett, who claims Scalia as her mentor, would replace Justice Ruth Bader Ginsburg, who was not an originalist and was the court’s liberal leader. Barrett's confirmation would shift the court’s previous 5-4 conservative majority to 6-3.

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SOUNDS OF SILENCE

The hearing paused twice Wednesday because of audio problems in the Dirksen Senate Office Building. The sound in the hearing room cut out a little before 2 p.m. and was off for 40 minutes. It cut out again after the hearing resumed, this time for about 15 minutes.

The problem happened the first time just after Sen. Richard Blumenthal, D-Conn., asked Barrett whether she had gotten some rest after a long day of questioning Tuesday. "I did have a glass of wine. I’ll tell you I needed that at the end of the day,” she said.

On that point, “You have a right to remain silent,'' Blumenthal told Barrett.

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Associated Press writer Colleen Long contributed to this report.

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