Supreme Court nominee Amy Coney Barrett said she expected attacks against her faith and her family when she was nominated to the high court, but that she and her family are "all-in" on serving her country. The Senate Judiciary Committee began grilling Barrett on Tuesday as her marathon hearing continued.
She spent the first half of the day being pressed by Democrats on abortion, ObamaCare and more, while repeatedly declining to weigh in on hot-button issues, invoking the so-called "Ginsburg rule."
"I've tried to be on a media blackout for the sake of my mental health," Barrett told the committee. "You can't keep yourself walled off from everything and I'm aware of a lot of the caricatures that are floating around."
She added: "We knew that our lives would be combed over for any negative detail. We knew that our faith would be caricatured. We knew our family would be attacked. And so we had to decide whether those difficulties would be worth it because what sane person would go through that if there wasn't a benefit on the other side?"
Barrett continued to say that the benefit is "that I'm committed to the rule of law and the role of the Supreme Court in dispensing equal justice for all. And I'm not the only person who can do this job. But I was asked, and it would be difficult for anyone. So why should I say someone else should do the difficulty if the difficulty is the only reason to say no?"
The hearing Tuesday began with impassioned broadsides from Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., against the Affordable Care Act (ACA), while Ranking Member Dianne Feinstein. D-Calif., attempted to drill down on Barrett's abortion stance, as well as her opinions on gun rights and the ACA.
"What I'm trying to do very briefly this morning is to demonstrate the difference between politics and judging," Graham, R-S.C., said as he opened the hearing before saying he would present his preferred health care vision.
"All of my colleagues on the other side had emotional pleas about ObamaCare," Graham said. "ObamaCare has been a disaster for the state of South Carolina. All of you over there want to impose ObamaCare on South Carolina. We don't want it. We want something better."
No hints, no previews, no forecasts
Graham also cited hospital closings, premium increases and a higher proportion of federal money going to blue states under the ACA.
"I want a better deal," Graham said. "The best way to get innovation is to allow people to try different things to get better outcomes."
Meanwhile, Feinstein asked Barrett to be forthright about her views on abortion and Roe v. Wade and tried to drill down on Barrett's stances on a number of issues.
"I do want to be forthright and answer every question so far as I can," Barrett said, citing Justice Elena Kagan's confirmation hearing. "She said that she was not going to grade precedent or give it a thumbs up or thumbs down."
"It would actually be wrong and in violation of the cannons for me to do that as a sitting judge," Barrett added.
Feinstein shot back: "On something that is really a major cause with major effect on half of the population of this country, it's distressing not to get a straight answer."
Barrett responded that she understood the question, but could not "pre-commit" to a certain view on Roe v. Wade or its progeny Planned Parenthood v. Casey.
During questioning from Sen. Mike Lee, R-Utah, Barrett talked about how she tries to make sure she avoids bias in her decisions.
"One practice I have, one check that I put on myself, to make sure that I'm not biased is that when I write an opinion I try to read it from the perspective of the losing party," Barrett said. "So that any sympathy that I might feel for the particular result that I reach, I try to make the sympathy run the other way to see if ti will still hold and also to see .. would I still think it was a well-reasoned opinion."
She added: "I think discipline is required but I take it very very seriously."
As Feinstein continued to ask Barrett if she agreed with certain statements on precedent, Barrett continued to refuse to give answers committing to a certain outcome of a case.
Barrett did add that she would follow the principles of "stare decisis," which is the concept that the court will defer to past decisions in most cases, depending on a complex confluence of factors.
Sen. Patrick Leahy, D-Vt., brought up Democrats calls for Barrett to recuse herself specifically from any election-related cases. "He's counting on you to deliver him the election," Leahy said, noting comments by the president.
Barrett said that she would not be able to make any commitment on recusing herself until a case came before her, citing Justice Ruth Bader Ginsburg's description of when a justice should recuse herself.
"Not only reading the [recusal] statute, looking at the precedent, consulting counsel if necessary," Barrett said of the process of considering recusal. "While it is always the decision of the 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."
The nominee also emphasized that she has "made no commitment to anyone... about how I would decide any case."
Leahy lamented that "The president has placed both you and the Supreme Court in the worst of positions," with comments he's made about how Trump hopes any election-related cases might be decided.
Added Sen. Dick Durbin, D-Ill., "Who came up with this insulting notion that you might violate your oath?... Could it have come from the White House? Could it have come from the president's tweets?... That's where it comes from."
Other Democrats have demanded that Barrett recuse herself from the California v. Texas ACA case specifically.
Barrett also avoided making commitments when Feinstein asked her to weigh in on California v. Texas, the Supreme Court case set to be argued on Nov. 10 that could overturn the ACA. Barrett refused to talk about the case except to say it had to do with the concept of "severability." When a court decides a part of a law is unconstitutional and must be overturned, it then decides whether the rest of the law can stand without that part, or if the entire law must fall because the unconstitutional part was too central to its purposes.
"I haven't written about severability that I know of at all," Barrett said when asked to weigh in on severability. She added that because the case is on the Supreme Court's docket "the cannons of judicial conduct would prevent me from expressing a view."
Absolutely not, I was never asked. And if I had have been, that would have been a short conversation
Democrats continued their theme from Monday of emphasizing the consequences if the ACA were repealed, which they posit would likely happen if Barrett is confirmed.
"[The coronavirus] is seen as a preexisting condition. Do you know how many million Americans have tested positive for the coronavirus and survived?" Sen. Patrick Leahy, D-Vt., asked Barrett, who herself caught the coronavirus this summer and recovered, according to reports. Barrett said she did not.
"That's more than 7,700,000 Those are people who are not considered to have a preexisting condition," Leahy explained. He later noted that President Trump said he wanted the ACA to be overturned, and suggested that the president "is confident" Barrett would overturn the ACA.
Feinstein also questioned Barrett about gun rights in regard to Kanter v. Barr, a case in which Barrett said governments can limit the gun rights of people who are dangerous, but that being convicted of a nonviolent felony does not necessarily make a person dangerous enough to have their rights limited.
Sen. Dick Durbin, D-Ill., criticized Barrett on the Kanter ruling, saying she was giving more "respect" to gun rights than voting rights. Durbin claimed that even nonviolent felons are more likely to commit violent crimes in the future and said it would be unreasonable for judges to decide who is likely to be violent in the future and who is not.
"We on the court ... have to make judgments all the time on what count as crimes of violence," Barrett said, specifically referencing the Armed Career Criminal Act. She added that she remembered questioning the evidence Durbin cited about nonviolent felons being more likely to commit violent crimes.
Barrett added on voting rights that "what I said was that the Constitution contemplates that states have the freedom to deprive felons of the right to vote," before noting that she was not expressing a personal view on the policy.
On gay marriage, Feinstein asked whether Barrett agreed with a point made by late Justice Antonin Scalia that the Constitution does not fundamentally give gay people the right to marry. Barrett responded, "If I were confirmed you would be getting Justice Barrett, not Justice Scalia ... but I'm not going to express a view ... for the same reasons that I've been giving."
She then quoted late Justice Ginsburg's philosophy on judicial hearings: "No hints, no previews, no forecasts."
Under questioning from Sen. Chuck Grassley, R-Iowa, Barrett added that she was not asked to make any commitments by President Trump and would not make any commitment to the Senate Judiciary Committee. Grassley further asked whether Barrett was asked to overrule the ACA or if that was her agenda.
"Absolutely not, I was never asked. And if I had have been, that would have been a short conversation," Barrett shot back.
Democratic Senators' calls for packing the Supreme Court in recent months also came up during the hearing, specifically while Barrett was being questioned by Lee. She and Lee both made clear that the size of the Supreme Court is set by Congress. Court packing is the practice of increasing the size of the Supreme Court in order to seat sympathetic justices for political gain, as former President Franklin Roosevelt also proposed.
Lee said that adding justices to the Supreme Court would be a "colossal mistake" and cited a 1983 speech by Democratic presidential candidate Joe Biden in which he opposed court packing. He then slammed Democrats over some who have claimed that confirming Barrett "constitutes court packing."
"In recent days I've seen some in the media and some in this body try to redefine what it means to pack the court. Some have suggested well court packing takes various forms and it can mean confirming a lot of people all at once. Some have defined it so as to suggest that it consists of doing that which the Trump administration and the Republican Senate have been doing over the last three and a half years which is filling vacancies as they have arisen," Lee said.
He added, raising his voice: "This is not court packing. Court packing is itself manipulative and it's something that has great dangers to do immense political and constitutional harm to our system of government."
Biden and his running-make Sen. Kamala Harris, D-Calif., have steadfastly refused to tell Americans whether or not they would pack the Supreme Court if elected.
The fast-paced questioning by Graham of Barrett, which also touched on a couple of other major precedents, including school desegregation and gun rights, and the "severability" doctrine as it applies to the ACA, was the start of what is set to be a marathon two days of hearings. Barrett, as noted by ABC's Trish Turner, was not using notes Tuesday.
"We begin tomorrow 30-minutes rounds followed by 20-minute rounds," Graham said on Monday afternoon, as the opening statements in the hearings closed. "Just do the math, we've got a couple long days ahead of us, so get some rest."
The Judiciary Committee plans to give all 22 of its members 30 minutes each to question Barrett on Tuesday in a hearing extending late into the evening.