The 7 biggest takeaways from day 2 of Amy Coney Barrett's confirmation hearing
Brendan Smialowski/Reuters
- The second day of Judge Amy Coney Barrett's confirmation hearing wrapped up on Tuesday night.
- The contentious hearing was split between Republicans who praised Barrett's judicial philosophy and Democrats who voiced concerns that Barrett would slash the Affordable Care Act and overturn key precedents like Roe v. Wade and Obergefell v. Hodges.
- Barrett also pointedly refused to answer any questions related to President Donald Trump's comments including his plan to contest the election and refusal to commit to a peaceful transfer of power if he loses.
- Scroll down to catch up on Tuesday's biggest moments.
- Visit Business Insider's homepage for more stories.
The second day of Judge Amy Coney Barrett's Supreme Court confirmation hearings wrapped up late Tuesday after nearly 12 hours of questioning.
Barrett's confirmation fight comes fewer than three weeks before the November general election, and Republicans have been sharply criticized for trying to get Barrett confirmed to the high court before voters have a chance to weigh in via the ballot box.
Tuesday's hearing was split between Republicans who praised the judge's judicial philosophy and Democrats who voiced concerns that she would slash the Affordable Care Act and vote to overturn key precedents on abortion rights and gay marriage. In all, Tuesday's event had several key takeaways that hint at how the rest of Barrett's confirmation could shape up.
Barrett refused to weigh in on how she would rule in cases related to Roe v. Wade
The judge, who considers the late Justice Antonin Scalia her mentor, was asked several times whether she would vote to overturn Roe v. Wade, the landmark Supreme Court case that legalized abortion nationwide. Some lawmakers also asked her for her opinion on Planned Parenthood v. Casey, a 1992 case whose ruling largely reaffirmed Roe v. Wade.
But Barrett refused to answer, citing the "Ginsburg rule," which refers to the late Justice Ruth Bader Ginsburg's assertion during her 1993 confirmation that she would not preview how she would rule on future cases.
"I don't have any agenda," said Barrett. "I have no agenda to try to overrule Casey. I have an agenda to stick to the rule of law and decide cases as they come."
However, some legal scholars have pointed out that "Ginsburg rule" is a misnomer because contrary to popular belief, Ginsburg actually did weigh in on critical issues during her confirmation, including abortion rights.
"The decision whether or not to bear a child is central to a woman's life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices," Ginsburg said at the time. She expressed support for both Roe v. Wade and Planned Parenthood v. Casey during the hearings.
Barrett refused to say if the president can delay or postpone an election
Democratic Sen. Dianne Feinstein asked Barrett to weigh in on President Donald Trump's suggestion that the general election be delayed or postponed in the wake of the COVID-19 pandemic.
"With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history," Trump tweeted in July. "It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???"
"Does the Constitution give the president of the United States the authority to unilaterally delay an election under any circumstances?" Feinstein asked. "Does federal law?"
Barrett dodged the question, saying, "Well, 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. If I give off-the-cuff answers, then I would basically be a legal pundit, and I don't think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind."
The judge's answer raised some eyebrows given that federal law mandates that only Congress has the power to change the date of the general election, which takes place on the Tuesday after the first Monday in November.
The process by which states appoint electors to the Electoral College is laid out in Article II of the Constitution. It is also outlined in Chapter 1 of Title 3 in the United States Code. As Insider previously reported, Congress would have to vote to change Section 1 of the code, which currently says, "The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."
Barrett did not recuse herself from potential cases surrounding a contested election
Democratic Sen. Patrick Leahy asked Barrett several times whether she would recuse herself from weighing in on a case involving a disputed election result.
She repeatedly refused to do so, saying at one point, "It involves not only reading the statute, looking at the precedent, consulting counsel if necessary. But the crucial last step is while it is always the decision of an individual justice, it always happens after consultation with the full court, so I can't offer an opinion on recusal without short-circuiting that entire process."
"I will apply the other factors that other justices have before me in determining whether the circumstances require recusal or not, but I can't offer a legal conclusion right now about the outcome of the decision I would reach," Barrett said when Leahy pressed her again.
Her refusal to commit to recusing herself drew immediate comparisons to previous cases in which judges and justices recused themselves from politically charged cases because of a potential conflict of interest.
The presidential historian Michael Beschloss pointed out, for instance, that in 1974, Chief Justice William Rehnquist recused himself from the United States v. Nixon case because he served in the Justice Department under President Richard Nixon.
In another example involving a lower court, US Circuit Judge Gregory Katsas, who was appointed by Trump to the Washington, DC Circuit Court of Appeals, has recused himself from all matters involving the Mueller investigation. Katsas worked in the White House counsel's office before he was confirmed to the appeals court.
'Sexual preference'
Barrett ignited a firestorm when she used the term "sexual preference" to refer to LGBTQ people when asked about the landmark Obergefell v. Hodges case, which legalized gay marriage.
"I have no agenda, and I do want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference. Like racism, I think discrimination is abhorrent," Barrett said.
The judge's use of the term "sexual preference" drew sharp backlash for implying that sexual orientation is a choice.
Sen. Mazie Hirono later called Barrett out for her comments, saying, "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. Sexual orientation is a key part of a person's identity."
Barrett then apologized for her comment, replying that she "didn't mean and would never mean to use a term that would cause any offense in the LGBTQ community."
"If I did, I greatly apologize for that," she added.
Barrett dodged questions about if the president can pardon himself
"In keeping with my obligation not to give hints, previews or forecasts of how I would resolve the case, that's not one I can answer," Barrett said when Sen. Cory Booker of New Jersey asked her if the president has the right to pardon himself.
Trump has repeatedly suggested that he has the "absolute right" to pardon himself, especially during the special counsel Robert Mueller's investigation into Russian interference in the 2016 election.
Trump's power to grant pardons is broad, but the question of whether a president can pardon himself has not been tested before.
Mueller's probe ultimately did not result in charges against Trump, but the president is currently facing at least nine lawsuits that he will have to contend with once he leaves office if he loses in November. Some of the lawsuits were brought in federal court, but many are on a state level, and the pardon power does not apply to state charges.
Barrett said she is 'not hostile' to Obamacare but did not say how she'll rule on cases involving the law
Perhaps the biggest focus for Democrats on Tuesday was gleaning Barrett's views on the Affordable Care Act, which she has criticized several times. Most notably, she wrote an essay in 2017 lambasting the Supreme Court for upholding the landmark healthcare law and said the majority opinion by Chief Justice John Roberts "pushed the Affordable Care Act beyond its plausible meaning to save the statute."
On Tuesday, Barrett said that while she did "critique" Roberts' opinion, the case involving the ACA that's currently before the court — California v. Texas — relates to severability, a legal provision that allows the rest of a law to remain in effect even if one part of it is struck down. Barrett's statement was somewhat misleading because the president has made it clear that he wants Obamacare to be gutted in its entirety.
"I am not hostile to the ACA," Barrett told the Senate Judiciary Committee on Tuesday. "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."
Barrett struggled to answer whether the president should commit to a peaceful transfer of power
"That seems to me to be pulling me into the question of whether the president has said he would not leave office," Barrett said when Booker asked her if the president would pledge a peaceful transition if he loses. "To the extent that this is a political controversy right now, as a judge I want to stay out of it, and I don't want to express a view."
Later, when Booker doubled down on his question, Barrett praised the US's tradition of presidential transitions.
"One of the beauties of America from the beginning of the republic is that we have had peaceful transfers of power and that disappointed voters have accepted the new leaders that come into office ... That's not true in every country," she said. "I think it is part of the genius of our Constitution and the good faith and goodwill of the American people that we haven't had the situations that have arisen in so many other countries where those issues have been present."
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