Barrett again declined to preview how she would decide on potential cases during her confirmation hearing, as she had done for the past two days to present herself as an independent judge with no agenda.
Judicial Committee chairman Lindsey Graham seemed to suggest that Barrett would vote for Affordable Care Act compliance in an upcoming case as he was defended against political attack in his tough re-election campaign against Democrat Jaime Harrison.
Barrett said the question before the court was whether part of the ACA could be “severed” if the law was deemed unconstitutional, or whether all of the law would have to fall, as the Trump administration and several GOP-led states argue .
“The guess always speaks in favor of separability,” said Barrett.
The exchange between the Republican from South Carolina and Barrett at the start of the session on Wednesday showed that the Democrats’ health-focused attacks on Barrett’s nomination were politically effective.
“This hearing was more about Obamacare than about you,” said Graham.
“From a conservative standpoint, we generally want legislatures to legislate, not judges,” Graham later said. “Would it be further true, if you could get a statue, try as far as you can?”
“That’s true,” replied Barrett.
“That’s the law, folks,” replied Graham.
Democrats are going the other way on Obamacare
Democrats were not deterred by Graham’s suggestion that Barrett would support the ACA.
The Californian Senator Dianne Feinstein, the top Democrat on the Justice Committee, also asked the candidate about the doctrine of separability. Barrett told Feinstein that the doctrine is like a game of “jenga” where a court has to decide whether a law can apply if it extracts part of it.
Barrett told her that separability “has a valuable function in trying not to undo your work when you don’t want a court to undo your work.”
Barrett later said to Minnesota Democratic Senator Amy Klobuchar, “I have no incentive or agenda for the Affordable Care Act.”
Barrett says “nobody is above the law” but refuses to say whether Trump can forgive himself
“This question may or may not arise, but it does require a legal analysis of the level of pardon,” Barrett said. “So since this is an open question, if I haven’t gone through the judicial process to decide, I can’t comment.”
Barrett says that establishing a constitutional right to contraception is “very, very, very, very, very, very unlikely to go anywhere”.
Barrett replied that Griswold’s precedent is “very, very, very, very, very, very unlikely to go anywhere”.
She stated that it is “unthinkable for a legislature to pass such a law” banning the use of birth control and that it is “very unlikely” for a lower court to defy the Supreme Court precedent.
Barrett said that “the only reason this question is even worth asking” is that the 1965 case led to the landmark Roe v. Wade of 1973, which established a constitutional right to abortion. “Since Griswold is a lawful process, an area that is still the subject of litigation with the country, I don’t think it is a problem or a case to comment on,” said you. “But I also don’t think Griswold is in any danger of going anywhere.”
Missouri Republican Senator Josh Hawley said Democrats attributed “the worst readings and most draconian misinterpretations of Justice Scalia” to Barrett.
“I got the impression that you were a different person from Justice Scalia and that you had your own words, your own mind,” he added.
Kamala Harris urges Barrett for voting rights, labor rights and climate change
California Senator Kamala Harris, the Democratic vice presidential candidate, asked Barrett about Shelby County v Holder, which allowed some jurisdictions with a history of voter suppression to evade additional state scrutiny under the 1965 Suffrage Act.
Harris said at least 23 states have passed restrictive electoral laws since the Supreme Court ruled the case in 2013. She then asked if Barrett agreed with Chief Justice John Roberts, who wrote in that statement that “electoral discrimination still persists; no one questions it.” “
Barrett said she would not express an opinion on any potential litigation in court.
“I think there is still racial discrimination in the US and I think we saw evidence of it this summer,” added Barrett.
Harris later asked Harris whether Covid-19 was contagious, whether smoking causes cancer and whether climate change is “happening and threatening the air we breathe and the water we drink”.
While Barrett acknowledged the first two as fact, she said climate change was “a very controversial matter of public debate”.
“I won’t do that,” she said. “I will not express an opinion on a public policy issue, particularly a politically controversial one, as it is inconsistent with the role of the judiciary that I have just mentioned.”
Republicans are confident Barrett will be confirmed
Republican senators expressed confidence on Wednesday that they will confirm the Notre Dame law professor and judge on the 7th Court of Appeals by the end of the month, giving the Conservatives a strong 6-3 majority on the Supreme Court.
“The last three days of the hearings have brought very good news,” said Texas Senator Ted Cruz. “Judge Barrett is confirmed by this committee and the entire Senate.”
The Justice Committee will meet Thursday at 9:00 a.m. ET to vote on Barrett’s nomination, and the Republican members will have enough members in attendance for a quorum. Democrats will use their power according to committee rules to postpone the vote until October 22, according to a Senate GOP adviser.
After all of this is completed, the committee will hold the fourth day of hearings with testimony from outside witnesses for and against Barrett’s confirmation.
Barrett is not expected to reappear after 18 hours of questioning by Senators on Tuesday and Wednesday.
Perhaps her most candid moment was when, after an 11 hour hearing, she admitted having a glass of wine on Tuesday night.
“I’ll tell you I needed this at the end of the day,” she said with a laugh.
Connecticut Democratic Senator Richard Blumenthal replied, “Let me just say you have the right to remain silent on this point.”
CNN’s Manu Raju, Hannah Rabinowitz, Rebecca Grandahl, Sara Fortinsky, Angie Trindade, Daniella Mora and Cat Gloria contributed to this report.