Judge Amy Coney Barrett faced the final day of questions from the Senate Judiciary Committee on Wednesday as Republicans fast-track her nomination to the Supreme Court.

In her testimony, the conservative jurist declined to share her legal views on abortion rights, voting rights and the Affordable Care Act, seeking to separate her academic writings from how she might rule if confirmed.

She also declined to say whether she thought it was wrong to separate migrant children from their parents to deter immigration to the United States. “That’s a matter of hot political debate in which I can’t express a view or be drawn into as a judge,” Barrett said in response to a question from Sen. Cory Booker (D-N.J.).

The panel is expected to vote Oct. 22 as President Trump pressures the Senate to confirm Barrett before the Nov. 3 election.

Here are some significant developments:
  • Sen. Lindsey O. Graham (R-S.C.) offered a full-throated defense of Barrett’s personal views, particularly her opposition to abortion. “This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology,” Graham told Barrett.
  • Barrett stated unequivocally that “no one is above the law” — but she warned that the Supreme Court has no real recourse to ensure that people, including the president, obeyed its orders. Asked whether the president could pardon himself for a crime, Barrett was circumspect. “So far as I know, that question has never been litigated,” she said.
  • Barrett said that she thinks two Supreme Court decisions outlawing racial discrimination were correctly decided but declined to say the same for other landmark opinions involving gay rights and access to contraceptives.
  • Pressed on climate change, Barrett told senators that her views are not relevant to the work she would do if confirmed to the Supreme Court. “I do not think I am competent to opine on what causes global warming or not,” Barrett said. A climate change case, however, is on the Supreme Court’s docket.
  • Democrats continued to press Barrett on the Affordable Care Act, while Republicans tried to shift focus from health care to the judge’s résumé. Barrett told lawmakers on multiple occasions that she was not “hostile” to the 2010 law, saying, “I am not here on a mission to destroy the Affordable Care Act."
  • As Republicans seek to portray Democrats as anti-Catholic in Barrett’s confirmation hearings, Joe Biden’s campaign is making the former vice president’s Catholic faith a core part of his final pitch to voters. Recent TV ads from Biden’s campaign show him standing with Pope Francis, huddled with a Jesuit priest or bowing his head in prayer.
October 14, 2020 at 6:03 PM EDT
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‘Who does the laundry in your house?’ Kennedy asks Barrett

By Ann Marimow

Throughout Barrett’s confirmation hearings, many lawmakers have remarked on the judge’s large family and welcomed her seven children to the Senate.

One of the final queries before the hearing concluded Wednesday came from Sen. John Neely Kennedy (R-La.).

He asked Barrett, “I’m genuinely curious: Who does the laundry in your house?”

Barrett laughed and responded, “We’ve increasingly been trying to get the children to take responsibility for their own, but those efforts have not always been successful. We run a lot of loads of laundry.”

“Well, you are very impressive, judge,” Kennedy concluded.

October 14, 2020 at 5:21 PM EDT
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Harris invokes John Lewis’s legacy to press Barrett on voting rights

By Ann Marimow

Sen. Kamala D. Harris (D-Calif.) invoked the legacy of the late congressman and civil rights leader John Lewis to press Barrett on her views about voting rights. After the Supreme Court in 2013 invalidated a key section of the Voting Rights Act that targeted states with a history of discrimination, Harris said that nearly two dozen states passed new restrictive voting laws.

Harris asked Barrett several times whether she agreed with Chief Justice John G. Roberts Jr., who wrote in his majority opinion in Shelby County v. Holder that “voting discrimination still exists; no one doubts that.”

Barrett declined to express an opinion, saying that “these are very charged issues.”

“Are you saying that you refuse to agree with a known fact?” Harris asked the judge.

“I think racial discrimination still exists” in the United States, Barrett replied, adding, “We have seen evidence of discrimination this summer.”

October 14, 2020 at 5:19 PM EDT
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Barrett says her views on climate change are irrelevant to court’s work

By Ann Marimow, Dino Grandoni and Derek Hawkins

Barrett told senators her views on climate change are not relevant to the work she would do if confirmed to the Supreme Court.

“I do not think my views on global warming or climate change are relevant to the job I would do as a judge nor do I feel like I have views that are informed enough, and I haven’t studied scientific data,” she said in response to Sen. Richard Blumenthal (D-Conn.), who asked her whether she believes humans cause global warming.

“I do not think I am competent to opine on what causes global warming or not,” Barrett said.

Later, under questioning from Sen. Kamala D. Harris (D-Calif.), the Democratic vice-presidential nominee, Barrett declined to say whether climate change was real and a threat to human health, calling it a “very contentious matter.”

“I will not express a view on a matter of public policy, especially one that is politically controversial because that’s inconsistent with the judicial role, as I have explained," she said.

A climate change case is already on the Supreme Court’s docket. The high court will hear a case involving several oil companies, including Royal Dutch Shell, being sued by the city of Baltimore, which is seeking to hold them financially responsible for their greenhouse gas contributions. Barrett’s father spent much of his career as a lawyer for Shell.

While her time on the 7th Circuit has been relatively brief, Barrett’s record suggests she has a restrictive view on when environmentalists can bring lawsuits, experts say. She wrote the majority opinion in at least two cases — including one brought by a park preservation group against Barack Obama’s presidential center in Chicago — denying opponents standing in court.

October 14, 2020 at 4:31 PM EDT
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Barrett declines to say whether it’s wrong to separate children from immigrant parents

By Derek Hawkins

In one of the only discussions of immigration to arise during the confirmation hearings, Barrett declined to say whether she thought it was wrong to separate migrant children from their parents to deter immigration to the United States.

“That’s a matter of hot political debate in which I can’t express a view or be drawn into as a judge,” Barrett said in response to a question from Sen. Cory Booker (D-N.J.).

Booker said he respected her position but asked again: “Do you think it’s wrong to separate a child from their parent, not for the safety of the child or parent but to send a message. As a human being, do you believe that that’s wrong?”

Barrett told Booker she felt as if he was trying to engage her on the Trump administration’s border separation policy. Under the policy, immigration officials applied a “zero-tolerance” approach to undocumented immigration and separated families crossing the border through Mexico.

“I can’t express a view on that,” Barrett said. “I’m not expressing assent or dissent with the morality of that position — I just can’t be drawn into a debate about the administration’s immigration policy.”

Booker said the issue involved “basic questions of human rights, human decency and human dignity.”

“I’m sorry that we can’t have a simple affirmation of what I think most Americans would agree on,” he said.

October 14, 2020 at 4:08 PM EDT
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Barrett defends immigration opinion siding with Trump’s ‘wealth test’

By Ann Marimow

Barrett defended her dissent in a recent immigration-related case in which she took the side of the Trump administration on a regulation that makes it harder for immigrants to seek residency in the United States if they have used public assistance.

Earlier this year, Barrett wrote a dissent when a 7th Circuit panel upheld an order blocking the “public charge rule.”

Sen. Mazie Hirono (D-Hawaii) criticized Barrett for her position “despite the harm you knew it would inflict.” Advocates have said that the rule is deterring many immigrants and their family members from using any government-funded health care or nutritional benefits.

Barrett said her dissent emphasized that those currently receiving benefits were not affected by the rule.

“Yes, I said there was fear and there was disenrollment, but that the rule did not apply to anyone currently eligible,” she said. “I said in my dissent that it would be better to send that back to the District Court.”

The regulations had been delayed by the lower courts until the Supreme Court allowed them to take effect in January.

October 14, 2020 at 3:06 PM EDT
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Barrett won’t say whether Griswold, Lawrence, Obergefell cases were correctly decided

By Seung Min Kim

Barrett said Wednesday that she believed two Supreme Court decisions outlawing racial discrimination were correctly decided but declined to say the same for other landmark opinions involving gay rights and access to contraceptives.

Those responses came under questioning from Sen. Richard Blumenthal (D-Conn.), who asked her whether Brown v. Board of Education, which outlawed the “separate but equal” doctrine, and Loving v. Virginia, which legalized interracial marriage, were correctly decided.

Brown, in 1954, was “correctly decided, yes, I’ve said that,” Barrett said. As for Loving, that 1967 decision “follows directly from Brown, and Brown was correctly decided. Loving, as well.”

Then Blumenthal pressed Barrett on Griswold v. Connecticut, which allowed married couples to use birth control, as well as Lawrence v. Texas, which invalidated sodomy laws, and Obergefell v. Hodges, which legalized same-sex marriage.

“Again, I’ve said throughout the hearing, I can’t grade precedent,” Barrett said. “I can’t give a yes or a no, and my declining to give an answer doesn’t suggest disagreement or an agreement.”

She added: “You’re pushing me to try to violate the judicial canon of ethics … and I won’t do that.”

Blumenthal appeared frustrated at Barrett’s nonanswers, noting that her predecessors, including Chief Justice John G. Roberts Jr., were able to say in their confirmation hearings that Griswold was correctly decided.

But as Blumenthal painted a portrait of America where people could face discrimination on the basis of their sexual orientation, Barrett pushed back.

“To suggest that’s the kind of America that I want to create” is not based on any facts in her record, Barrett said.

October 14, 2020 at 1:53 PM EDT
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Landmark case legalizing birth control is not ‘going anywhere,’ Barrett says

By Ann Marimow

Barrett called it “shockingly unlikely” that any state or federal lawmakers would reinstate bans on birth control and said the Supreme Court decision legalizing contraception is not “in danger of going anywhere.”

Barrett’s comments came in response to questions from Sen. Christopher A. Coons (D-Del.), who contrasted her record with that of the late Justice Ruth Bader Ginsburg. He also tried to tie Barrett to the views of her mentor, the late Justice Antonin Scalia, who thought Griswold v. Connecticut was wrongly decided.

Barrett said of the 1965 case striking down a ban on contraception, “I think Griswold is not going anywhere unless you plan to pass a law prohibiting couples, all people, from using birth control."

Barrett called the question academic “because it seems unthinkable that any legislature would pass such a law.”

Even so, she declined to say directly whether states could make contraceptives illegal because of the right of privacy outlined in Griswold that was later key to the 1973 decision legalizing abortion in Roe v. Wade.

Coons noted that Chief Justice John G. Roberts Jr. said during his confirmation hearings that he agreed with the court’s conclusion in the case, as did Justice Clarence Thomas.

October 14, 2020 at 1:38 PM EDT
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Barrett couldn’t name all five freedoms in the First Amendment

By Derek Hawkins

Sen. Ben Sasse (R-Neb.) asked Barrett what some might assume would be an easy question: What are the five freedoms of the First Amendment?

Barrett could name only four.

“Speech, press, religion, assembly,” she said, trailing off. “I don’t know, what am I missing?”

She left out the right to protest or petition the government.

The issue came up in a rudimentary discussion of the role of the Constitution and the Declaration of Independence.

Sasse, who has used his question time as a sort of civics lesson, followed up with a question about why there was one amendment that clustered the five freedoms together, then launched into a monologue about why the country’s founders created the Bill of Rights.

“I just wanted to hear you reflect a little bit on the glories of the First Amendment,” he said. “Why five of them [freedoms] in the same amendment?”

Barrett said she did not know why, as a historical matter, they appeared together rather than being split up.

“Assembly and protest and speech bear more relation to one another than necessarily free exercise, say,” she told Sasse. But “they are in the First Amendment,” she added, “and I think that reflects that those were core values — that reflects that the states that ratified the original Constitution on the understanding that a Bill of Rights would be added wanted protections like that to be included because they were really core to what the new Americans thought was going to be America.”

October 14, 2020 at 1:06 PM EDT
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Coalition of prosecutors, attorneys general vow not to enforce antiabortion laws even if Roe is reversed

By Tom Jackman

As the third day of confirmation hearings for Barrett launched, a group of 64 state prosecutors and attorneys general released a statement saying they will not enforce laws restricting abortion, even if Roe v. Wade is reversed with Barrett on the Supreme Court.

Barrett has declined to say how she would vote if a challenge to Roe came before the court. The prosecutors’ statement invokes the power of prosecutorial discretion, which some prosecutors have used to reduce or eliminate prosecution of marijuana charges and other misdemeanors to reduce the disproportionate harm they can cause to nonviolent offenders.

At least 12 states have passed antiabortion laws since last year, calling for criminal charges against the women who have abortions, doctors who perform them or both, according to Fair and Just Prosecution, the group that organized the statement. Most of those laws have been blocked by federal courts, and most states are appealing those rulings.

“It is imperative,” the prosecutors said in their statement, “that we use our discretion to decline to prosecute personal healthcare choices criminalized under such laws.” Citing the 47 years of legal precedent established by Roe, the prosecutors said that “women have a right to make decisions about their own medical care including, but not limited to, seeking an abortion.”

The statement was signed by 11 attorneys general, including Xavier Becerra of California, Kwame Raoul of Illinois, Josh Shapiro of Pennsylvania and Karl A. Racine of D.C., all elected Democrats. Fifty-three city and county prosecutors also signed the statement, including Cyrus Vance Jr. of New York, Kim Foxx of Chicago, Chesa Boudin of San Francisco and Larry Krasner of Philadelphia.

October 14, 2020 at 1:03 PM EDT
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Barrett gets defensive over queries about Obamacare, says she has ‘no animus’ toward it

By Karoun Demirjian

Barrett offered her most full-throated defense yet against Democrats’ suggestions that she would help to undermine the Affordable Care Act as a Supreme Court justice.

“I have no animus or agenda for the Affordable Care Act,” she insisted under questioning from Sen. Amy Klobuchar (D-Minn.), who was citing the judge’s past comments and writings on the ACA and noting that Barrett’s apparent stance was that the law’s individual mandate was unconstitutional.

Like many panel Democrats before her, Klobuchar at one point raised Barrett’s 2017 law review article criticizing Chief Justice John G. Roberts Jr.’s opinion upholding the health-care law, asking whether she had been aware that Trump wanted to overturn the ACA when she wrote it.

This time, Barrett seemed to have lost her patience.

“You’re suggesting this was like an open letter to President Trump,” Barrett protested. “It was not.”

October 14, 2020 at 12:28 PM EDT
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Graham draws criticism for referencing ‘the good old days of segregation’ — a statement he said was sarcastic

By Derek Hawkins

Jaime Harrison, Sen. Lindsey O. Graham’s Democratic opponent in the South Carolina Senate race, criticized the Republican chairman of the Senate Judiciary Committee for referencing “the good old days of segregation” during Barrett’s confirmation hearing Wednesday morning — a statement Graham said was intended to be sarcastic.

Graham made the remark in a discussion about the Supreme Court’s rulings in two landmark cases that have come up repeatedly in the hearings: Brown v. Board of Education, which struck down segregation laws, and Roe v. Wade, which established abortion rights.

Barrett could voice an opinion about Brown, Graham said, because there was no active litigation related to the segregation at issue in the case.

“One of the reasons you can say with confidence that you think Brown v. Board of Education is super-precedent is that you’re not aware of any effort to go back to the good old days of segregation by a legislative body, is that correct?” Graham asked. Barrett responded in the affirmative.

Harrison’s campaign seized on the remark, saying it showed Graham was “out of touch.”

“Even as peaceful protestors demonstrate across our state for equality and justice, Lindsey can’t help but refer fondly to a time of violent oppression and segregation against African Americans,” campaign spokesman Guy King said in a statement.

“It’s 2020, not 1920. Act like it,” added Harrison, who is Black.

Others expressed alarm at Graham’s words, including Michael Steele, the first black chairman of the Republican National Committee.

Graham responded to the blowback shortly after, saying he made the statement with "deep sarcasm.”

“The point I’m trying to make is that there is nobody in the legislative arena wanting to take us back to that dark time in American history," he told reporters outside the hearing room. “I want to make sure everyone in my state moves forward. In terms of that statement, it blows my mind that anyone can believe that about me.”

A spokesperson for the Graham campaign accused Harrison and others on the political left of "trying to drum up controversy where none exists.”

October 14, 2020 at 12:07 PM EDT
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Barrett will be confirmed, Democratic senator suggests, as he asks her to be ethical

By Karoun Demirjian

Sen. Sheldon Whitehouse (D-R.I.) asked Barrett to promise Wednesday that “when you’re on the court,” she would make sure that no lawyer bringing a case to the Supreme Court would have to do so “feeling that the case is stacked against them.”

“I will approach every case with an open mind,” Barrett replied.

The exchange was an admission of political reality that no Democrat on the Senate Judiciary Committee has yet acknowledged: Senate Republicans, if they stick together, have more than enough votes to confirm Barrett as the next Supreme Court justice.

Sen. Ted Cruz (R-Tex.) picked up on Whitehouse’s words, saying that the hearings had “revealed the news that Judge Barrett is going to be confirmed by this committee and by the full Senate.”

Whitehouse, with Graham’s support, also asked Barrett to help lawmakers improve the ethical restrictions on Supreme Court justices, pointing out that they are subject to less-stringent disclosure standards than lower court judges or even members of Congress, and are not required to adhere to a code of ethics.

“I’m surprised,” Barrett said, marveling that she did not know Supreme Court justices were held to a more lax standard.

“Take a look at that when you get up there,” Whitehouse suggested.

October 14, 2020 at 12:03 PM EDT
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Cruz mocks Democrats’ absence from hearing room

By Ann Marimow

Sen. Ted Cruz mocked Democrats for being absent from the hearing room during the second full day of questioning for Barrett.

“It is striking that as we sit here right now in this committee room, there are only two Democratic senators in the room,” he said. “The Democratic senators are no longer attending. I assume they will show up for their time, but it is indicative of what they are admitting, which is that they don’t have substantive criticisms.”

Sen. Richard J. Durbin (D-Ill.) immediately objected, noting that some Democratic senators were participating from their offices or remotely because of concerns about the coronavirus pandemic.

“To suggest their absences mean they are not participating is incorrect,” Durbin said.

In response, Cruz said, “I would note the Senator from Illinois in his personal privilege, somehow omitted the fact that all but two of the Democrats were physically here yesterday. And after the questioning they made the decision not to be here.”

Cruz recently ended a self-quarantine period after being exposed to Sen. Mike Lee (R-Utah), who tested positive for the coronavirus soon after attending President Trump’s formal nomination ceremony for Barrett at the White House.

October 14, 2020 at 11:42 AM EDT
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Sen. Lee defends Barrett’s position in abortion rulings

By Ann Marimow

Sen. Mike Lee (R-Utah) asked a series of questions to rebut suggestions from Democrats that Barrett’s personal opposition to abortion would influence her decisions if she is confirmed to the Supreme Court. Lee highlighted Barrett’s role as an appeals court judge in upholding a Chicago law that established a buffer area around abortion clinics.

The Chicago law, upheld by a conservative three-judge panel of the U.S. Court of Appeals for the 7th Circuit, prohibits protesters from coming within eight feet of individuals to demonstrate or hand out leaflets outside clinics and other medical facilities.

“You followed that precedent, and you did so as a jurist rather than following whatever personal predilection might have otherwise guided you or any other member of the panel,” Lee said.

Barrett said the panel was bound by previous Supreme Court decisions. But the opinion she joined also critiqued the high court’s prior opinion saying it was “incompatible with current First Amendment doctrine.”

Lee also pointed to Barrett’s dissent from a ruling that blocked an Indiana law requiring that abortion providers bury or cremate fetal remains. The Supreme Court subsequently agreed with Barrett’s position in a 7-to-2 ruling that reinstated the fetal remains law.

A decision that “garners a majority of 7-to-2 these days on the Supreme Court, a decision that includes Justice Breyer and Justice Kagan does not seem radical to me,” Lee said.

Lee did not mention that the high court did not reinstate Indiana’s ban on abortions sought because of the sex or disability of a fetus. Barrett dissented from a ruling that found the restriction unconstitutional. Because the state had not appealed that part of the decision striking down its abortion restrictions, the Supreme Court was not asked to decide, and did not.