Barrett vowed that she had not discussed specific cases, like the upcoming challenge to the Affordable Care Act, with Trump or anyone else when she was nominated to succeed the late Justice Ruth Bader Ginsburg, whose death threw the Senate into a pitched election-year confirmation battle that could swing the court in a more conservative direction.
“Absolutely not. I was never asked, and if I had been that would’ve been a short conversation,” Barrett said at Tuesday’s Senate Judiciary Committee confirmation hearing when she was asked whether she had committed to vote to repeal the health care law.
But Barrett repeatedly declined to answer questions from Democrats on how she might rule on a range of topics, from the Affordable Care Act to Roe v. Wade and the high court’s ruling legalizing same-sex marriage.
“It’s distressing not to get a straight answer,” Sen. Dianne Feinstein of California, the Judiciary Committee’s top Democrat, said after posing a series of questions to Barrett on the Supreme Court’s landmark abortion rulings.
Feinstein pressed Barrett to explain whether she agreed with the late Justice Antonin Scalia that Roe v. Wade was wrongly decided. Barrett, however, invoked Justice Elena Kagan’s answer that she wasn’t going to grade precedent.
“I completely understand why you are asking the question, but again I can’t pre-commit, or say yes, I’m going in with some agenda, because I’m not. I don’t have any agenda,” Barrett said.
The back-and-forth between Democrats and the nominee kicked off a lengthy two days of questioning. Democrats sought to elicit answers from Barrett on a number of controversial topics the Supreme Court could take up, including abortion, gun rights, voting rights, same-sex marriage and, in particular, health care.
The Supreme Court will hear a case on November 10 on whether to strike down the Affordable Care Act, which means Barrett could be on the bench if Republicans are successful in confirming her before Election Day, November 3. The legal challenge to former President Barack Obama’s signature health care law loomed over Tuesday’s hearing: Democrats raised the care that the Affordable Care Act has provided to individuals, continuing their theme from Monday, while Republicans attacked the law.
Barrett pushed back on the notion that her previous criticism of Chief Justice John Roberts’ opinion upholding the Affordable Care Act’s individual mandate in 2012 was a sign of how she would potentially rule in next month’s case. She said that her writing then was in an academic setting and argued that it had no bearing on the upcoming challenge the law.
“I am not hostile to the ACA. I’m not hostile to any statute that you pass,” Barrett said. “I apply the law, I follow the law, you make the policy.”
Sen. Chris Coons, a Delaware Democrat, argued that her criticism of Roberts over the health care ruling was a key indicator of her views, prompting Barrett to object to the assertion. “I am not here on a mission to destroy the Affordable Care Act,” she responded. “I’m just here to apply the law and adhere to the rule of law.”
Republicans sought to head off the Democratic criticisms of the legal effort to overturn the Affordable Care Act. Senate Judiciary Chairman Lindsey Graham kicked off Tuesday’s hearing with a sustained attack on health care law. “From my point of view, Obamacare has been a disaster for the state of South Carolina,” Graham said. “We want something better. We want something different.”
The Ginsburg standard
Frequently, Barrett fell back on a standard that’s been attributed to 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.
Democratic and Republican senators will have two opportunities Tuesday and Wednesday to question Barrett. All 22 senators on the committee will have a 30-minute period to question the nominee, followed by a 20-minute round of questions.
Graham walked Barrett through her judicial philosophy in the opening round of questions. Barrett explained that she shared a philosophy with Scalia, whom she clerked for, but she argued she would not be an identical justice if she is confirmed.
“If I’m confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett,” Barrett said. “And that’s so because originalists don’t always agree.”
Graham asked Barrett whether she owned a gun, which she said she did.
“Do you think you could fairly decide a case even though you own a gun?” Graham asked.
“Yes,” she responded.
Two lengthy days of questioning
Partisan battle lines over Barrett’s nomination were quickly drawn on Monday during the first day of hearings in the Senate Judiciary Committee as Democrats and Republicans offered up sharply divergent narratives of the high court fight to fill the vacancy created by Ginsburg’s death.
Republicans, who hold the Senate majority, are moving quickly to fill the vacancy with their sights set on confirmation ahead of Election Day.
Democrats, in the minority, have limited options at their disposal to fight back. But they have been preparing a plan of attack that will focus squarely on issues they believe will resonate with voters while excoriating Republicans for rushing the nomination, an effort designed to avoid a spectacle that could damage their efforts to win back the Senate majority and the White House.
While Democrats couldn’t get Barrett to weigh in on the Roe v. Wade decision, they pressed her to explain past criticisms of the abortion rights ruling that conservatives — and the President — have sought to overturn.
Leahy asked Barrett about an ad she signed that was published in 2006 in the South Bend Tribune describing the legacy of Roe v. Wade as “barbaric,” pushing her on the views of the group that sponsored the ad, saying the group believes that in vitro fertilization (IVF) is equivalent to manslaughter.
“Do you agree with them that IVF is tantamount to manslaughter,” Leahy asked.
Barrett said that she had signed the statement “on the way out of church,” because it was consistent with the views of her church. “It simply said we support the right to life from conception to natural death,” she said, adding that “it took no position on IVF.”
Klobuchar tried to draw on Barrett’s previous writings on “super precedent,” or Supreme Court precedents that are so well settled there’s no legal debate over them. Barrett would not say that Roe v. Wade fell into that category.
“The way I was using it in the article that you’re reading from was to define cases that are so well settled that no political actors and no people seriously push for their overruling,” Barrett said. “And I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category. And scholars across the spectrum say that doesn’t mean that Roe should be overruled, but descriptively it does mean that it’s not a case that everyone has accepted and doesn’t call for its overruling.”
The panel’s Democrats did not take up questions about her religion, as they’ve made clear they want to steer clear of questions about whether Barrett’s devout Catholic faith will impact her views, an issue that arose during her 2017 confirmation hearings to sit on a federal appeals court and prompted an uproar among Republicans.
Republicans emphasized Barrett’s qualifications to be appointed to the high court. Sen. John Cornyn of Texas, who like Graham is up for reelection this cycle, made a point for Barrett to display the empty notepad sitting in front of her, showing she was answering senators’ questions without using notes.
Cornyn and the other Republicans also emphasized Barrett’s view that the legislative branch makes policy and judges only interpret the law.
“I think part of the rationale for courts adhering to the rule of law and for judges taking great care to avoid imposing their policy preferences is that it’s inconsistent with democracy,” Barrett said. “Nobody wants to live in a court with the law of Amy, I can ensure you my children don’t even want to do that. So I can’t as a judge get up on the bench and say, ‘You’re going to live by my policy preferences because I have life tenure and you can’t kick me out if you don’t like them.'”
This story has been updated with additional developments Tuesday.
CNN’s Lauren Fox, Manu Raju and Devan Cole contributed to this report.