Thread by @ZoeTillman

Hello from my dining table, where I'll be covering Day 2 of Judge Amy Coney Barrett's SCOTUS confirmation hearing.

On Day 1, which was about a lot of things other than Barrett specifically: buzzfeednews.com/article/zoetil…

Graham kicks off questioning by asking Barrett to explain originalism (conservative legal theory focusing on original meaning of laws as understood at the time), and asks if she'll be a female Justice Antonin Scalia. Barrett notes originalists don't always agree...

Barrett: "You would not be getting Justice Scalia, you would be getting Justice Barrett."

Graham asks about Brown v. Board (a common Qs Dems have asked Trump nominees) and whether it's "super precedent." Barrett says in her writings as a law prof she's used that framework, which refers to a small # of cases where it's "unthinkable" they'd be overturned b/c so settled

Graham asks Barrett if she can set aside her Catholic beliefs on the bench.

Barrett: "I can, I have done that in my time on the 7th Circuit. If I stay on the 7th Circuit I’ll continue to do that. If I’m confirmed to the Supreme Court, I will do that still."

(Republicans have preemptively argued that Dems are trying to attack Barrett for being Catholic, but Dems did not bring that up during Day 1 of Barrett's hearing)

Re: the Affordable Care Act, which has been the focus of Dem opposition to Barrett so far, Barrett briefly explains the thrust of the current ACA case pending, which is whether the individual mandate can be severed from the rest of the law or if it all must fall together

Asked if she would recuse from the ACA case because she was nominated by Trump, Barrett says it's not a question she can answer now, and that Ginsburg had prev. said that recusal is up to each judge, but also involves consultation with colleagues

Feinstein asks if Barrett believes that Roe was wrongly decided. Barrett says that because the legal issues around abortion are still being litigated, it would be wrong for her to express any views, especially as a sitting judge

Barrett: "I can’t precommit or say, 'Yes I'm going in with some agenda,' because I’m not. I dont have any agenda. 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." (Casey is another big SCOTUS abortion case)

Re: the Affordable Care Act, Barrett tells Feinstein that the issue before SCOTUS now — the fate of the individual mandate since Congress zeroed it out and whether it's severable — is pending, so the canons of judicial ethics bar her (as a sitting judge) from opining now

Barrett notes that she hasn't written before about severability. She also defends her past criticism of Roberts for upholding the ACA in King v. Burwell (re: whether people on the federal exchange, as opposed to a state-established exchange, were eligible for tax credits)

On same-sex marriage, Barrett says: "I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference," but says that as a sitting judge she can't speak to specific questions of law

Feinstein asks if a president can unilaterally delay an election, citing Trump's comments on that.

Barrett says that if that Q came up in a case, she'd go through the full judicial consideration process, but doesn't want to give an "off the cuff" response a la a "legal pundit"

Grassley asks if Barrett has made promises to anyone about how she'd rule in a particular case.

Barrett: "I want to be very, very clear about this Senator Grassley. The answer is no."

Asked if she committed to anyone to vote against the ACA, she replies, "Absolutely not."

Leahy notes that Trump said he was pushing to fill RBG's seat ASAP because he expected SCOTUS to rule on issues re: the election, and Leahy asks Barrett if she'll recuse from election cases given Qs that would come up about her impartiality, per the recusal statute... (cont'd)

...Barrett responds: "I also think it would be a complete violation of the Independence of the judiciary for anyone to put a justice on the court as a means of obtaining a particular result." And she repeats what she told Grassley, that she had made no precommitments to anyone

Durbin asks Barrett if she saw the George Floyd video. Barrett said she did: "As you might imagine, given the fact I have two black children, that was very, very personal for my family." She says she wept with her 17-year-old daughter who is adopted from Haiti

Barrett says that "racism persists in our country," but says that the nature of that and how to fix it are policy questions.

"Giving broader statements or making, you know, broader diagnoses about the problem of racism is kind of beyond what I'm capable of doing as a judge."

What has Judge Amy Coney Barrett said so far today about how she'd rule on abortion rights, the Affordable Care Act, and the 2020 election if confirmed to SCOTUS? Not much, which isn't surprising. On how it's going on Day 2 of her confirmation hearings: buzzfeednews.com/article/zoetil…

After a lunch break, Day 2 of Judge Amy Coney Barrett's confirmation hearing is back.

On what she's said so far in response to Qs about abortion, the election, and the Affordable Care Act: buzzfeednews.com/article/zoetil…

We're back to substantive questions for Barrett (Whitehouse and Cruz largely used their time to speak) — Klobuchar asks if people should take Trump "at his word" when he's said his judicial appointees will "do the right thing" and reverse the ACA (see:

https://twitter.com/realdonaldtrump/status/614472830969880576?lang=en

)...

...Barrett replies: "I can’t really speak to what the president has said on Twitter. He hasn’t said any of that to me."

"Whatever people's ... party platforms may be or campaign promises may be, the reason why judges have life tenure is to insulate them from those pressures"

Klobuchar asks about Barrett (as a prof) writing favorably about Scalia's dissent in King v. Burwell re: upholding parts of the ACA. Barrett: "It's difficult for me to say how I would have decided that case, if I had to go through the whole process of judicial decision-making"

Klobuchar asks if Roe v. Wade is "super precedent." Barrett says that refers to cases that are very clearly settled, and then turns the Q back on Klobuchar, saying, "I'm answering a lot of questions about Roe, which I think indicates that Roe doesn't fall in that category"

Following another line of Qs from Coons about the ACA and her critique of the legal reasoning from Roberts in upholding the law in 2012, Barrett says: "I'm 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 again on whether she'd recuse in election-related cases given Trump's remarks:
- On actual bias: "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"

- On the *appearance* of bias, which is also a factor when it comes to judicial recusal: "I will consider all factors that are relevant to that question"

Blumenthal highlights that when Barrett filed a supplement to her nomination materials, she didn't include a 2006 statement she signed that appeared as part of an ad calling Roe "barbaric" — Barrett said she cont'd to think it was not responsive to what the Senate form asks for

Barrett's supplement did include a 2013 statement she signed as a member of University Faculty for Life at Notre Dame — she said that she did believe that was responsive to the questionnaire because it was a statement on behalf of an org she belonged to

Barrett draws a distinction between something she signed in 2006 as a private citizen and what she signed as a member of an organization in 2013, given what exactly the questionnaire asks for. Here's how that section is phrased:

Hirono begins by asking Barrett the same Qs she has asked every judicial nominee in recent years — if they've ever comitted sexual assault/harassment as an adult, and if they've ever faced discipline/entered into a settlement related to sexual assault/harassment. Barrett says no

Day 2 of Judge Amy Coney Barrett's confirmation wraps up after ~11 hours. Barrett tried to avoid making any firm statements about how she'd rule on issues like abortion and the Affordable Care Act, regardless of what she'd said and written in the past buzzfeednews.com/article/zoetil…

tldr: Nothing today appeared to change the expected party-line committee vote on Barrett's nomination.

What went down:
buzzfeednews.com/article/zoetil…

What's on tap for Day 3? We'll kick off in the morning with another round of questioning from senators (20 minutes each this time instead of 30)