Barrett again refused to make a preliminary review of how he would rule on potential cases during his confirmation hearing, as he had done in the previous two days, trying to present himself as an independent judge without an agenda.
Judicial Commission Chair Lindsey Graham seems to be suggesting that Barrett will vote in favor of the Affordable Care Act in an upcoming case because of a judicial principle known as separability, defending himself from political attacks in his tough race against Democrat Jaime Harrison.
Barrett explained that the question before the court was whether part of the ACA could be “separated” if the law was considered unconstitutional, or whether the entire law would have to fall, as the Trump administration and several GP-led states have argued.
“The presumption is always in favor of separability,” Barrett said.
The exchange between the Republican from South Carolina and Barrett at the beginning of Wednesday’s session showed that the Democrats’ attacks on health care against Barrett’s nomination were politically effective.
“This hearing was for Obamacare rather than for you,” Graham said.
“From a conservative point of view, generally speaking, we want the legislature to make laws, not judges,” Graham said later. “Would it be further true that if you could keep the statue you were trying as much as possible?”
“That’s true,” Barrett replied.
“It’s the law, people,” Graham replied.
Democrats are moving in the other direction of Obamacare
Democrats were not deterred by Graham’s proposal that Barrett would support the ACA.
California Sen. Diane Feinstein, the top Democrat in the judiciary, also asked the nominee about the doctrine of separability. Barrett explained to Feinstein that the doctrine is like a game of “Jenga”, where the court must decide whether the law can stand if it removes part of it.
Barrett told her that “separation plays a valuable role in trying not to cancel your job when you don’t want the court to cancel your job.”
Barrett later told Minnesota Democratic Senator Amy Klobuchar, “I don’t have an animus or a plan for the Affordable Care Act.”
Barrett says “no one is above the law,” but declines to say whether Trump can forgive
“This issue may or may not arise, but one that requires a legal analysis of the scope of pardon powers,” Barrett said. “So, since that would be an opinion on an open issue when I haven’t gone through the trial to resolve it, it’s not one I can offer a look at.”
Barrett says the case for the constitutional right to contraceptives is “very, very, very, very, very, very unlikely to go anywhere”
Barrett replied that Griswold’s precedent was “very, very, very, very, very, very unlikely to go anywhere.”
She explained that it was “unthinkable for a legislature to pass such a law” banning the use of birth control, and that it was “very unlikely” that the lower court would reject the Supreme Court’s precedent.
Barrett said that “the only reason it’s even worth asking this question” is that the 1965 case is at the heart of the Roe v. Wade of 1973, which constitutionally has the right to abortion. “So, since Griswold involves litigation, an area that remains the subject of litigation before the country, I don’t think this is a problem or a case that I can understand,” she said. “But I also don’t think Griswold is in danger of going anywhere.”
Missouri Republican Sen. Josh Hawley said Democrats attributed to Barrett “the worst testimony and the most draconian misinterpretations of Justice Scalia.”
“I was under the impression that you are a different person from Judge Scalia and that you have your own words, your own mind,” he added.
Kamala Harris presses Barrett on voting rights, workers’ rights and climate change
Democratic Sen. Kamala Harris, a Democratic vice presidential candidate, asked Barrett for Shelby County against Holder, which allowed some jurisdictions with a history of voter suppression to avoid additional federal control under the 1965 Voting Rights Act.
Harris said at least 23 states have passed restrictive voting laws since the Supreme Court ruled the case in 2013. She then asked if Barrett agreed with Chief Justice John Roberts, who wrote in the statement that “discrimination in voting continues still exists; no one doubts that. “
Barrett said he would not comment on potential lawsuits in court.
“I think racial discrimination still exists in the United States, and I think we’ve seen evidence of that this summer,” Barrett added.
Harris later asked Harris if Covid-19 was infected, if smoking was causing cancer, and if climate change was “happening and threatening the air we breathe and the water we drink.”
While Barrett acknowledged the first two as a fact, she said climate change was “a very controversial issue in public debate”.
“I will not do it,” she said. “I will not express a point of view on the issue of public policy, especially the one that is politically controversial, because that is contrary to the judiciary, as I explained.”
Republicans are confident that Barrett will be confirmed
Republican senators seemed confident Wednesday that they would confirm the Notre Dame law professor and judge at the 7th U.S. Court of Appeals by the end of the month, giving the Conservatives a strong 6-3 majority in the Supreme Court.
“The last three days of hearings have revealed very good news,” said Texas Sen. Ted Cruz. “Judge Barrett will be confirmed by this committee and by the full Senate.”
The Judicial Committee will meet at 9:00 a.m. ET on Thursday to vote on Barrett’s nomination, and Republican members will have enough members present for a quorum. Democrats will use their power under committee rules to postpone the vote until October 22, according to an aide to the GOP Senate.
Once it is over, the commission will hold the fourth day of hearings with testimonies from outside witnesses for and against Barrett’s confirmation.
Barrett is not expected to reappear after 6 p.m. interrogations by senators on Tuesday and Wednesday.
Perhaps her most outspoken moment was when she admitted to drinking a glass of wine on Tuesday night after an 11-hour hearing.
“I’ll tell you, I needed that at the end of the day,” she said with a laugh.
Connecticut Democratic Sen. Richard Blumenthal replied: “Let me just say that you have the right to remain silent on this issue.”
CNN’s Manu Raju, Hannah Rabinowitz, Rebecca Grandal, Sarah Fortinski, Angie Trindide, Daniela Mora and Cat Gloria contributed to this report.