Supreme Court nominee Amy Coney Barrett is back on Capitol Hill Wednesday for a third day of confirmation hearings as senators dig deeper into the conservative judge's outlook on abortion, health care and a potentially disputed presidential election — the Democrats running out of time to stop Republicans pushing her quick confirmation.
Wednesday's session is Barrett's last before the Senate Judiciary Committee. She has been batting away questions in long and lively exchanges, insisting she would bring no personal agenda to the court but decide cases “as they come.”
This is a developing story. Read below for live updates:
5:50 p.m. EDT
Sen. Marsha Blackburn, (R-Tenn.), asked few questions of Barrett on Wednesday, instead taking aim at Democrats’ questioning and what she termed unfair smearing of the nominee over the course of the hearings.
“They made this all about the Affordable Care Act, they made it all about issues that they wanted to talk about because we are twenty days away from an election,” Blackburn said of Democrats.
Blackburn said that Barrett does not fit the Democrats’ “elitist” vision of a Supreme Court judge, saying her non-Harvard education and the fact that Barrett is a working mother doesn’t sit well with her liberal colleagues.
Chairman Lindsey Graham closed Wednesday’s questioning by opining the partisanship of the process, saying there was no use blaming either side for the contentious hearings.
“In another time, in another place, you would get everybody’s vote,” Graham told Barrett, adding: “You will be confirmed, God willing.”
The committee is in recess until Thursday morning, when the senators will discuss Barrett’s nomination before hearing from outside witnesses. Democrats are likely to delay a vote on Barrett’s confirmation until next week, meaning the vote will likely take place on Oct. 22.
5:20 p.m. EDT
Sen. Kamala Harris, also the Democratic candidate for vice president, again appeared via video chat for Wednesday’s questioning. Harris began with the Voting Rights Act, which she said was not “an inevitable” outcome of the civil rights movement.
Harris cited recent decisions in states such as Texas that limit the amount of drop-off ballot boxes as examples of voter suppression, asking Barrett point-blank if she believes there is still voter discrimination in the United States.
While Barrett said she is “very happy to say that racial discrimination exists in this country,” as evidenced by ongoing protests nationwide, but said she was “not going to express an opinion” on voter discrimination, saying it has become too politically-chareged an issue.
Harris picked up on Sen. Blumenthal’s earlier line of questioning about climate change, asking Barrett if she would defer to scientists in the relevant issues before issuing judgements on environmental issues.
Barrett confirmed that she would “defer when the law requires me to,” adding that judges are legally obligated to consult expert and agency information when rendering a decision.
Barrett still refused to answer Harris’ questions about whether global warming is caused by humans, saying climate change is a “contentious matter of public debate.”
4:40 p.m. EDT
Barrett would not say that the Trump administration’s practice of separating children from their families at the U.S.-Mexico border was wrong.
Barrett was being questioned by Democratic Sen. Cory Booker of New Jersey about the practice during her confirmation hearing Wednesday. She said she could not be drawn into a debate about the Trump administration’s immigration policy. She has refused to engage on many issues, including whether President Donald Trump has the right to delay the election, citing the need for judicial independence.
The Trump administration separated more than 2,500 children from their parents at the border during the spring and summer of 2018. The practice was widely derided as inhumane by world leaders, lawmakers and religious groups, including by Pope Francis.
Later investigations concluded thousands more may have been separated, but the administration’s lack of records made it impossible to fully grasp how many. The administration is still in court over the policy.
4:25 p.m. EDT
Sen. Mazie Hirono (D-Hawaii) continued the Democrats’ often-pushed claim that a Barrett confirmation would signal an end to the “fair and balanced” Supreme Court as we know it.
Hirono made clear that she thinks it’s no coincidence that two — and possibly three, should Barrett be nominated — Supreme Court justices served on George W. Bush’s legal team during the 2000 Florida recount. Justices John Roberts and Brett Kavanaugh, as well as Barrett, worked under the Republican president during the Bush v. Gore case.
“I did work on behalf of the Republican side,” Barrett conceded earlier in the hearing. “To be totally honest, I can't remember exactly what piece of the case it was. There were a number of challenges.”
Barrett told Hirono that “any questions of whether there was an appearance of impartiality ... would be one for all justices involved to consider under the recusal statute.” Barrett said at her confirmation hearing Wednesday that “a judge always has to consider that issue.”
After attempting to bring up the recusal statute, Hirono cut Barrett off. “The fact that you would even bring up the recusal statute is evidence to me that you think there is a conflict of interest,” Hirono said.
Following Hirono’s questioning, Sen. Joni Ernst (R-Iowa) lambasted her Democratic colleagues — although she did not mention anyone by name — for their consistent interrupting of Barrett’s answers, offering Barrett an opportunity to clarify any of her previous statements should she so choose.
Barrett said she wanted to clarify that “the work that some of the justices may have done on Bush v. Gore is reason to recuse, that is certainly not what I meant.”
Sen. Ernst asked Barrett what her reaction is to criticism that she is not an adequate replacement for Justice Ginsburg as their constitutional philosophies differ so greatly.
“Disagreeing with the judicial philosophy is perfectly admissible grounds for voting no because you may have a different vision of what a justice or a judge should do,” Barrett replied, adding: “There’s room on the court for different approaches to the constitution.”
Ernst used most of her remaining time asking Barrett personal anecdotes about her career, and for her advice to young girls who want to follow in her footsteps.
“Be confident” and pursue your dreams, were Barrett’s answers in part.
3:45 p.m. EDT
The confirmation hearing for Supreme Court nominee Amy Coney Barrett paused not once, but twice on Wednesday due to unforeseen audio issues.
The sound in the hearing room cut out a little before 2 p.m., after around five hours of questioning. After around 40 minutes, the hearing resumed, only to cut out for a shorter period of time only minutes later.
The senators are completing 20-minute rounds of questioning and might do a final round of 10 minutes each. Wednesday is the final day of questioning.
When the hearing resumed for a second time, Sen. Thom Tillis, (R-N.C.), opened his remarks by commending Barrett for her composure over the grueling days of testimony, saying he thinks her “constitutional rights” were violated by some of the questions asked by his Democratic colleagues.
Tillis then followed up by asking Barrett why she would go through with the process of being nominated for the Supreme Court, knowing that it would be both a public and personal series of hearings.
Barrett called the nomination process “excruciating,” but said that she believes in the importance of America’s legal institutions and to back down from the challenge would be “cowardly.”
Tillis further criticised Democrats for “advocating for activism” on the Supreme Court by pressuring Barrett to commit to not overturning Roe v. Wade. When asked how she would rule on so-called “partial-birth abortion” cases on the Supreme Court, Barrett answered that she would have to “look at all the precedents” and how they applied to the specific case in front of her.
3:15 p.m. EDT
Sen. Richard Blumenthal (D-CT) picked up the day’s questioning following a 40-minute unplanned recess due to what appeared to be a technical malfunction on Barrett’s microphone.
In an exchange with Sen. Blumenthal, Judge Barrett declined to answer whether or not criminalizing IVF treatment would be constitutional.
“Senator, I’ve repeatedly said, as has every other nominee who’s sat in this seat, that we can’t answer questions in the abstract, that would have to be decided in the judicial process with a case,” Barrett responded, adding: “So an off-the-cuff reaction to that would just circumvent the judicial process.”
Blumenthal called Barrett’s answer “disappointing,” saying that “millions of women, potential parents, would be horrified to think that IVF could be made criminal.”
When asked to clarify her views on global warming and whether she believes human activity contributes to climate change, Barrett said she is “not qualified to opine on what causes global warming,” adding that her views on climate change would not be relevant to her work as a judge.
Blumenthal’s closing statement was cut short by yet another apparent microphone malfunction, after which the committee went into its second unplanned recess of the day to assess the problem.
2:40 p.m. EDT
Microphone issues at the hearing brought the proceedings to a standstill.
Meanwhile, Democratic presidential candidate Joe Biden says Judge Amy Coney Barrett “seems like a decent person,” but he calls it “an abuse of power” to confirm her to the Supreme Court before votes are tallied in the presidential election.
The former Vice President said on a campaign fundraising call Wednesday that President Trump is “trying to ram through this nominee days before the election after millions of people have already voted” just so she’ll be in place to hear another challenge to the 2010 Affordable Care Act.
As a law professor, Barrett criticized a Supreme Court decision upholding the health care law, but she hasn’t said explicitly how she’d vote on the matter as a justice on the high court. The court is scheduled to hear the latest challenge to the law in Nov. 10 oral arguments.
Biden told donors that a conservative majority on the court could effectively strip more than 100 million Americans with preexisting health conditions from having guaranteed eligibility to purchase health insurance. He also noted that the additional millions of Americans who have contracted COVID-19 may expand that list because of “lung scarring and heart problems.”
The microphone issues have been fixed and the hearing has resumed.
1:50 p.m. EDT
Delaware’s Chris Coons was one of several Democratic senators who reiterated the concern that Barrett’s confirmation would undo years of progressive decisions shepherded along by the late Justice Ginsberg.
Coons said that Barrett will likely continue Justice Antonin Scalia’s approach of “originalism and willingness to reconsider precedent,” predicting a clear disregard for stare decisis, a legal doctrine that requires courts to follow historical cases when making a ruling on a similar case.
Scalia famously dissented in cases upholding the ACA and legalizing same-sex marriage, and Barrett has long maintained that she holds a similar judicial philosophy to the late justice.
When asked if she thought Griswold v. Connecticut, the Supreme Court case that established the basis for right to privacy and later Roe v. Wade, was correctly decided, Barrett demurred — but she did add that Griswold is "very, very, very, very, very unlikely to go anywhere."
Barrett also said that there “isn’t any evidence” in her previous writings that she shows contempt for the stare decisis doctrine.
Coons disagreed, saying his core concern is that Barrett’s nomination “may launch a new chapter of conservative judicial activism,” and for that reason, he plans to vote against her nomination.
Sen. Josh Hawley (R-Mo.) took issue with Coons’ line of questioning, saying that Barrett “will make up (her) own mind” on Supreme Court decisions, and that Democrats should stop comparing her to Justice Scalia, Barrett’s self-proclaimed legislative mentor.
"I assure you I have my own mind. Everything that (Scalia) said is not necessarily what I would agree with or what I would do if I was Justice Barrett," Barrett said earlier in the hearing.
Hawley, who multiple times during the days-long hearings brought up the topic of religious freedom, again mentioned Barrett’s faith on Wednesday, saying, “Judge Barrett is a Catholic. We all know that. She’s a devout Catholic. We all know that.”
“There is nothing wrong with confirming to the Supreme Court of the United States a devout Catholic, pro-life judge,” Hawley concluded, adding that he will be honored to confirm Barrett’s nomination.
1:15 p.m. EDT
Sen. Ben Sasse (R-Neb.) slammed Democrats for bringing negativity into the hearings, telling Barrett it is “clear that a number of us who are excited in your originalism don’t think polling has any place in the questions before us.” Sasse said he wanted to “clear the record,” saying Wednesday polling suggested that the vast majority of the American public is “overwhelmingly in favor” of Barrett’s nomination.
The senator did not clarify where he got the polling numbers, but appeared to be citing a recent report from Forbes that found voters support Barrett's confirmation to the Supreme Court by a 17-point margin. Forbes noted, however, that the poll was conducted before the week's confirmation hearings began
Sasse followed up with a softball question for Barrett, asking her how she would judge whether or not she had a successful career on the Supreme Court should she be nominated.
Barrett listed a number of criteria, stressing that a good Supreme Court judge acts with integrity, follows the law and resists temptation to twist the law in favor of their personal preference, fosters good relationships with their clerks, among others.
Sasse also called Barrett a “prolific writer,” asking the judge how she believes her writing will evolve should she be confirmed.
“It’s hard to manage all the demands of family life and the job and writing the kind of scholarly articles I did in the past,” Barrett answered. “I would like to do more of that, but more in the vein of what, say, Justice Briar does now (…) Writing designed to educate about ideas.”
When the senator asked Barrett to list the five protections under the First Amendment, she named freedom of speech, freedom of religion, freedom of press, and freedom of assembly, but stumbled over the fifth and final protection, freedom of redress or protest.
12:45 p.m. EDT
Amy Klobuchar was the first senator to take the proverbial floor at the conclusion of Wednesday’s lunch recess, and she started out by again saying the circumstances of the hearing is “not normal.”
The Minnesota Democrat said that both voting rights and healthcare are on the line with Barrett’s nomination, pointing out that Barrett “will be the deciding vote in many cases that affects people’s lives” should her nomination be approved.
Citing Barrett’s previous writings on Roe v. Wade and health care, Klobuchar said Barrett’s nomination would “have the polar opposite judicial philosophy of Justice Ginsberg,” and would effectively pull an already conservative court further to the right.
Klobuchar repeatedly pressed Barrett on whether or not she knew that President Trump had made a campaign promise to repeal the Affordable Care Act, pointing to a tweet where Trump pledged to put justices on the Supreme Court who would rule in his favor.
“Again, I want to stress I have no animus to or agenda” regarding the Affordable Care Act, Barrett responded, although she did say that the Republican party has made it clear to the general public that they want to overturn the legislation.
11:45 a.m. EDT
With about a day and a half left in the confirmation hearings, Sen. Ted Cruz, R-Texas, was already declaring victory for Barrett.
“The last three days of hearings have revealed very good news,” he said. “They have revealed the news that Judge Barrett is going to be confirmed by this committee and by the full Senate. With two full days of questioning, we’ve seen that our Democratic colleagues have very few questions actually to raise about Judge Barrett’s qualifications. Very little of the time we’ve spent in here has concerned her record as a judge, her 20 years as a respected scholar.
“Instead, much of this hearing has focused on political attacks directed at President Trump. … But they’ve largely abandoned even trying to make the case that Judge Barrett is anything other than exceptionally well qualified to serve as a justice.”
At the time Cruz spoke, he noted that only two Democratic members of the committee were in their seats and claimed that was “indicative of what they’re tacitly admitting, which is they don’t have substantive criticisms.” Sen. Dick Dubin, D-Ill., however, argued that that some of the senators were monitoring the hearings from their offices due to the pandemic and that no one should read anything into their absences.
10:35 a.m. EDT
Barrett says she’ll “certainly keep an open mind” on allowing cameras to broadcast proceedings of the high court.
Republican Sen. Chuck Grassley of Iowa and Democratic Sen. Patrick Leahy of Vermont have asked all recent nominees to the court whether they would favor live or same-day broadcasts of arguments. Previous nominees have also expressed openness but have cooled to the idea once they became justices.
The court has been providing live audio of arguments, held by telephone, since May due to the coronavirus pandemic — the first time it has done so. Grassley and Leahy are longtime members of the Senate Judiciary Committee and introduced legislation earlier this year to continue the practice.
While questioning Barrett on Wednesday, the 87-year-old Grassley joked it probably wouldn’t happen in his lifetime. But he says allowing cameras in the courtroom “can bring about a better understanding of the judiciary.” Leahy also urged Barrett to consider it during his round of questioning.
Republicans want to confirm Barrett before the presidential election. Democrats say Republicans are rushing the process.
10:30 a.m. EDT
Leahy tried to pry answers out of Barrett that seemed to take aim at President Donald Trump.
He asked the Supreme Court nominee whether she believed anyone, namely the president, was above the law and could pardon himself.
Barrett agreed that no one was above the law, but she refused to offer an opinion on self-pardoning.
“As far as I know, that question has never litigated, that question has never arisen,” Barrett said. “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.”
Leahy called her answers “incompatible.”
He then tried to ask her about the Constitution’s foreign emoluments clause that prevents federal officials from accepting gifts or compensation from foreign governments. Leahy noted that representatives from foreign governments have stayed at Trump properties.
Barrett said the emoluments clause is “a matter being litigated on” currently and “it’s very clear that that would be one that I can’t express an opinion on because it could come before me.”
10:00 a.m. EDT
The first two senators to question Barrett on Wednesday asked her about the doctrine of “severability” in relation to the Affordable Care Act, which many Democrats have suggested would be in peril if Barrett is confirmed.
Severability has to do with whether a law can still stand if one provision of it is struck down by the courts.
Talking to Sen. Diane Feinstein, D-Calif., Barrett compared severability to a game of Jenga.
“It’s kind of like, if you pull one out, can you pull it out while it all stands?” she said. “If you pull two out, will it all stand? Severability is designed to say, 'Well, would Congress still want the statute to stand even with the provision gone?'"
Answering an earlier question from Graham, Barrett said that a judge’s preference is to preserve a law.
Severability could prove to be a key issue. The Supreme Court is set to hear oral arguments next month brought by Republican state attorneys general and the Trump administration, who argue the law's individual mandate is unconstitutional and that the entire law must be axed. The law, also known as “Obamacare,” has survived two previous Supreme Court challenges.
Barrett did not say how she would vote in the ACA case.
9:30 a.m. EDT
Sen. Lindsey Graham, chairman of the Senate Judiciary Committee, opened Wednesday’s hearing by saying Amy Coney Barrett would be a history-making addition to the Supreme Court and a role model to young, conservative women.
“There’s an effort by some in the liberal world to marginalize the contribution because you come out on a different side of an issue,” said Graham, R-S.C. “So this hearing, to me, is an opportunity to not punch through a glass ceiling but a reinforced concrete barrier around conservative women. You’re going to shatter that barrier. I have never been more proud of a nominee than I am of you.
“This is history being made, folks. 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’s going to the court. A seat at the table is waiting on you, and it will be a great signal to all young women who share your view of the world that there’s a seat at the table for them.”
Barrett faced questions Tuesday about why she considered Brown v. Board of Education a “super precedent” that could not be revisited but didn’t view Roe v. Wade and other cases the same way. She agreed with Graham’s assessment that there is or could be activate litigation on those cases, while there is no effort to return to segregation.
Barrett declared her conservative views in often colloquial language, but she refused many specifics Tuesday. The 48-year-old appellate court judge aligns with the late Justice Antonin Scalia, a conservative mentor, and declined to say whether she would recuse herself from any election-related cases involving Trump and Democratic nominee Joe Biden.
“Judges can’t just wake up one day and say I have an agenda — I like guns, I hate guns, I like abortion, I hate abortion — and walk in like a royal queen and impose their will on the world,” Barrett told the committee during its second day of hearings.
“It’s not the law of Amy,” she said. “It’s the law of the American people.”
Trump seemed pleased with her performance. “I think Amy’s doing incredibly well,” he said at the White House departing for a campaign rally.
Trump has said he wants a justice seated for any disputes arising from his heated campaign against Biden, but Barrett testified she has not spoken to Trump or his team about election cases. Pressed by Democrats, she skipped past questions about ensuring the date of the election or preventing voter intimidation, both set in federal law, and the peaceful transfer of presidential power. She declined to commit to recusing herself from any post-election cases without first consulting the other justices.
“I can’t offer an opinion on recusal without short-circuiting that entire process,” she said.
“I certainly hope that 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,” she added.
A frustrated Sen. Dianne Feinstein, the top Democrat on the panel, all but implored the nominee to be more specific about how she would handle landmark abortion cases, including Roe v. Wade and the follow-up Pennsylvania case Planned Parenthood v. Casey, which confirmed it in large part.
“It’s distressing not to get a good answer,” the U.S. senator from California told the judge.
Barrett was unmoved. “I don’t have an agenda to try to overrule Casey,” she said. “I have an agenda to stick to the rule of law and decide cases as they come.”
She later declined to characterize the Roe v. Wade decision that legalized abortion as a “super-precedent” that must not be overturned.
California Sen. Kamala Harris, the Democratic vice presidential candidate, said Barrett’s confirmation would pose “a threat to safe and legal abortion in our country.
The Senate, led by Trump’s Republican allies, is pushing Barrett’s nomination to a quick vote before Nov. 3, and ahead of the latest challenge to the Affordable Care Act, which the Supreme Court is to hear a week after the election.
Democrats warn that she would be a vote to undo the “Obamacare” law.
"I'm not hostile to the ACA,” Barrett told the senators.
Underscoring the Republicans’ confidence, Graham set an initial committee vote on the nomination for Thursday, the last day of hearings, which would allow final approval by the full Senate by the end of the month.