Thread by @sahilkapur

Day 3 is underway (please mute this thread if you don't want regular updates!). @LindseyGrahamSC opens by rebutting this remark from @KamalaHarris yesterday accusing Barrett of being less forthcoming than RBG was.

https://twitter.com/sahilkapur/status/1316158391472009217

"Obamacare is on the ballot," Lindsey Graham says, lamenting that Democrats are making the Supreme Court hearing more about ACA than ACB.

"The presumption is always in favor of severability," Amy Coney Barrett says, discussing the issue at the heart of the anti-ACA case. "It's a question of your intent."

Asked if judges try to preserve a statute to the extent possible, Barrett says: "That is true."

Graham praises Barrett for being the first unashamedly pro-life woman to be nominated to the Supreme Court.

https://twitter.com/JulieNBCNews/status/1316366106857213953

Amy Coney Barrett on voting laws: "Any specific measures that legislative bodies took to protect the integrity of the ballot box could be subject to litigation, subject to challenge."

Dianne Feinstein is up, noting that Amy Coney Barrett sided with the dissent in NFIB that argued the ACA was *not* severable from the individual mandate.

Barrett on Obamacare and severability: "If you picture severability being like a jenga game — it's kind of if you pull one out, can you pull it out while it all stands, or if you pull two out, will it still stand?"

She doesn't say if she shares Scalia's view on severability.

Barrett: "Severability is designed to say, well, would Congress still want the statute to stand even with this provision gone? Would Congress have still passed the same statute without it?"

Feinstein after her reply: "Thank you. That's quite a definition. I'm really impressed."

Feinstein asks Barrett if she agrees with originalists like Mike Rappaport who say Medicare and Social Security are unconstitutional: lawliberty.org/the-unconstitu…

Amy Coney Barrett says she's not familiar with the article and can't weigh in on it.

Asked again if she agrees broadly with originalists who think Medicare and Social Security are unconstitutional, Amy Coney Barrett doesn't say.

"I can't answer the question in the abstract," she replies, saying such a case could come before her and she hasn't seen the arguments.

Dianne Feinstein sounds surprised that Amy Coney Barrett won't say Medicare is constitutional. "It's hard for me to believe that's a real question. The Medicare program is really sacrosanct in this country."

Amy Coney Barrett doesn't say if Shelby County (the case that eliminated preclearance under the Voting Rights Act) was rightly decided. "Shelby County has obviously been controversial. It's likely to be re-litigated. It could come up before me on the Court," she says.

Amy Coney Barrett won't say if she agrees with Antonin Scalia in 2013 that some voting rights laws reflected a "perpetuation of racial entitlement."

She says it's "not something I can opine on" because it's tied into litigation surrounding the Voting Rights Act.

Chuck Grassley: "Democrats want to distract from the fact that they don't really care about Obamacare. You heard that since Democrats started their presidential primaries, probably two years ago. They want government-run Medicare For All."

"This is all a charade."

In fact, Democrats fought a primary this year and the guy who opposes Medicare For All won in a landslide.

https://twitter.com/sahilkapur/status/1316376960348696579

"Dems don't really care about Obamacare" is one of the wildest things I've ever heard covering politics.

Amy Coney Barrett says she'll keep an open mind to having cameras in the Supreme Court chamber so Americans can watch oral arguments.

Dick Durbin presses Amy Coney Barrett on whether a president can unilaterally deny the right to vote based on things like a person's race.

She treads cautiously: "I really can't say anything more than I'm not going to answer hypotheticals."

He doesn't look pleased.

Unlike yesterday, Sheldon Whitehouse is currently using his question time to ask the nominee questions.

Sheldon Whitehouse is making the accurate (and not well understood) point that Supreme Court justices aren't bound by precedent, and can overrule precedent for any reason when a relevant lawsuit comes before them.

Here 👇 are more than 200 examples of the U.S. Supreme Court overruling precedent. The only "test" to meet is five justices have to want to do it.

govinfo.gov/content/pkg/GP…

After Ted Cruz faults Democrats for raising boatloads of money while bashing dark money, Sheldon Whitehouse on MSNBC invites Republicans to join his party in supporting stricter campaign finance rules like the DISCLOSE Act.

Amy Klobuchar tells Barrett the Trump administration's position with the Supreme Court is to throw out the entire ACA. That's accurate. Here is the brief:

https://twitter.com/sahilkapur/status/1276354916555075584

Klobuchar to Barrett: "You will have the polar opposite judicial philosophy of Justice Ginsburg."

Amy Coney Barrett: "I am aware that the president opposes the Affordable Care Act. I am aware that he has criticized the Affordable Care Act."

Klobuchar asks Barrett if she's aware of Trump's positions on the ACA. She doesn't give a yes or no, and Klobuchar presses. Barrett: "You're suggesting that I have animus or that I cut a deal with the president. And I was very clear yesterday that that hasn't happened."

Amy Coney Barrett gets more defensive than usual when pressed by Klobuchar about what she knew of Trump's positions on the ACA when she wrote publicly to criticize it: "To the extent you're suggesting this was like an open letter to President Trump, it was not."

KLOBUCHAR: Are absentee ballots, better known as mail-in ballots, an essential way to vote for millions of Americans right now?

BARRETT: That's a matter of policy on which I can't express a view.

KLOBUCHAR: Ugh. To me that just feels like a fundamental part of our democracy.

Amy Coney Barrett doesn't say if she agrees with Clarence Thomas that the Supreme Court should revisit First Amendment law that makes it hard for public officials to win libel lawsuits. "I can't really express a view on either NYT v. Sullivan or Justice Thomas's critique on it."

Barrett won't say if the First Amendment assures a reporter's right to protect a confidential source, or if she agrees that an inability to protect sources makes reporters less likely to obtain information of importance to the public. She says these issues may come to court.

Amy Coney Barrett on whether Griswold was correctly decided: "I think Griswold isn't going anywhere unless you plan to pass a law prohibiting couples or all people from using birth control... It seems unthinkable that any legislature would pass such a law."

Chris Coons quotes Antonin Scalia, who Barrett has described as a mentor, dissenting in gay rights cases like Lawrence v. Texas and accusing the Court of co-signing a "homosexual agenda" when it said states cannot outlaw consensual sex between two men.

From Scalia's dissent:

Amy Coney Barrett is willing to say Brown v. Board of Eduction and Loving v. Virginia were correctly decided.

She isn't willing to say the same about Griswold v. Connecticut, Lawrence v. Texas or Obergefell v. Hodges (doesn't say one way or the other on these cases).

Pressed by Richard Blumenthal on gay rights precedents, Amy Coney Barrett says: "You're pushing me to try to violate the judicial canons of ethics and to offer advisory opinions, and I won't do that."

Amy Coney Barrett on the Supreme Court confirmation process: "This is a very difficult process. Actually I think I've used the word excruciating over the weeks."

KENNEDY: Are you a racist?

BARRETT: I am not a racist, Senator Kennedy.

KENNEDY: You sure?

BARRETT: I'm positive.

Sen. John Kennedy on Kamala Harris: "We disagree. She thinks America is systemically racist. I don't. I think our history is the best evidence of that. I don't think we're a racist country. I think we're a country that has some racists in it."

Marsha Blackburn says pre-existing conditions coverage "is widely supported by Republicans and Democrats."

This is the lie that won't go away.

Pre-ex policy is extremely controversial and part of the reason the two parties are still fighting about health care.

Lindsey Graham wraps this up, telling Barrett: "The hearing part is over. You can have two glasses of wine tonight."