Democrats keep mentioning the fact that millions of Americans are already voting, reminding viewers that Republicans decided to push ahead with the nomination just weeks before polls close and refocusing attention on the looming Supreme Court case challenge to the Affordable Care Act that is scheduled to begin a week after the election.
“In more than 40 states, people are voting as we speak,” Klobuchar said. “Do you think it is faithful to our democratic principles to fulfill a Supreme Court seat this close to the election when people are voting?”
Sen. Chris Coons, D-Del., spoke in front of a blown-up calendar with two dates circled in red: Election Day and the day that opening arguments are scheduled in the ACA challenge.
“We are just three weeks from an election,” Coons said. “Just a week after that election, the Supreme Court is going to hear a case that could take away health care protections from more than half of all Americans. So this is not an abstract academic argument, it is one that will have real life consequences.”
More than 10 million ballots have already been cast in the 2020 election. Polls show that most Americans want to wait until after the election to fill the vacant Supreme Court seat.
ANALYSIS: Barrett implies Roe vs. Wade is vulnerable now and Brown vs. Board could be if there were calls to overturn it
Barrett has said repeatedly that she can’t answer questions designed to elicit her views on cases and rulings to which she was not a party, but Klobuchar elicited from the nominee very clear views on the sanctity of the rulings protecting abortion rights and banning school segregation.
Klobuchar asked Barrett whether the Brown vs. Board of Education school desegregation decision is “superprecedent,” meaning broadly that the bar for overturning it is higher than that for other rulings.
Klobuchar then asked if Roe vs. Wade is a superprecedent.
Barrett would not say that.
Barrett instead answered that the difference is there are no calls to overturn Brown, while the focus on abortion in her ongoing hearing is evidence of disagreement over Roe. Roe is not superprecedent, she implied, because some people think it should be reversed. She added that does not mean that Roe should be overturned.
But the clear indication is that Barrett believes 1) Roe is more susceptible to reversal than Brown and 2) that Brown could cease to become superprecedent if there were suddenly calls to overturn it.
Barrett says abortion decision Roe v. Wade is not a ‘superprecedent’ protected from reversal
Responding to questioning from Sen. Amy Klobuchar, D-Minn., Barrett said she did not consider Roe v. Wade, the decision that helped ensure a woman’s ability to obtain an abortion, to be a “superprecedent” protected from reversal.
Barrett said that she defined “superprecedent” as a case that is “so well settled that no political actors and no people seriously push for their overruling.”
“I am answering a lot of questions about Roe, which I think indicates that it does not fall in that category,” Barrett said, adding that her answers does not mean that Roe should be overturned.
Barrett has written that she feels that Brown v. Board of Education was a superprecedent.
Klobuchar used her time to discuss the “tracks” the Barrett has left throughout her career, arguing that they paint a picture of an extremely conservative judge who would drastically change the shape of the Supreme Court in a way that is out of step with American public opinion.
“I am then left the looking at the tracks of your record and where it leads the American people and I think it leads to a place that is going to have severe repercussions for them,” Klobuchar said in conclusion.
Sen. Gary Peters shares his family’s abortion story
A U.S. senator is sharing his family’s abortion story.
Sen. Gary Peters, D-Mich., told Elle magazine in an interview published Monday how an abortion may have saved the life of his first wife.
Peters, who is running for re-election to a second term in the Senate, said in the interview that he is speaking out because he is concerned that the confirmation of President Donald Trump’s nominee to the Supreme Court, Judge Amy Coney Barrett, could result in the court’s striking down Roe v. Wade.
Read more on Peters’ abortion comments.
Group of 88 Notre Dame faculty pens letter asking Barrett to refuse nomination
A group of 88 faculty members at Notre Dame — none of whom are part of the law school where Judge Barrett teaches — penned a letter asking her to refuse her appointment to the Supreme Court.
“We’re asking a lot, we know,” the opponents wrote. “Should Vice-President Biden be elected, your seat on the court will almost certainly be lost. That would be painful, surely. Yet there is much to be gained in risking your seat.”
Blackburn tweets edited photo of Whitehouse presentation deck
Sen. Marsha Blackburn, R-Tenn., tweeted an edited photo suggesting the dark money Whitehouse referenced in his questioning was funneled by billionaire George Soros to “fund radical left activists.”
Whitehouse used his allotted time to highlight the influence of dark money in elections, connecting conservative organizations and their role in influencing political appointments. Whitehouse referenced an article on the Federalist Society, by The Washington Post.
Soros, a major Democratic donor, is a popular target of right-wing conspiracy theories.
Sen. Cruz defends Citizens United
Following Sen. Whitehouse’s 30-minute denunciation of dark money, Sen. Ted Cruz, R-Texas, used part of his time to defend the landmark Supreme Court case Citizens United that allowed for corporations and unions to spend unlimited money on political ads and other forms of influence campaigns.
“Citizens United concerned whether or not it was legal to make a movie criticizing a politician, specifically, Citizens United is a small nonprofit organization based in the — based in D.C. That made a movie that was critical of Clinton,” Cruz said.
Cruz also spoke about the Second Amendment and religious liberty, attacking Joe Biden and Senate Democrats.
After nearly an hour without any questions being asked, Cruz is now asking Barrett about her family.
Whitehouse decries dark money in court process, does not ask Barrett any questions
Sen. Whitehouse used his time to break down how conservative legal groups like the Federalist Society and the Judicial Crisis Network use their deep pockets to influence the Supreme Court process.
“This is a pretty big deal. I’ve never seen this with any court I’ve been involved with, where there’s this much dark money being used,” Whitehouse said. “That raises the question, what are they getting for it?”
Whitehouse did not ask Barrett, who has ties to the Federalist Society, any questions during his time. He thanked Barrett for listening and said it would tee them up for a good conversation Wednesday, the third day of the hearing.
Sen. Sheldon Whitehouse, D-R.I., is now up for questioning after a brief lunch break.
Committee breaks for lunch
Graham announced a lunch break, which will last until 12:45 p.m. ET. Seven senators have questioned Barrett so far, and there are 15 left to go after the break.
Sen. Sheldon Whitehouse, D-R.I., will be up first when the committee returns. Graham said the panel might take additional breaks later. The hearing could go to 9 p.m. ET or later.
Lee, not wearing mask, goes on at length about judicial philosophy
Sen. Mike Lee, R-Utah, went on a filibuster of sorts, speaking about the Federalist Papers, judicial philosophy and the foundation of the U.S. legal system — all without a mask.
Lee recently tested positive for Covid-19 but said he was told Monday by his doctor that he could participate in the hearing in person. He spoke for 30 minutes without a mask on.
One of the few questions he asked of Barrett was about the difference between will and judgment. She said that will is an imposition of policy preferences as it happens in the making of law and judgment is evaluating that law for its consistency with the Constitution.
“A judge who approaches a case as an opportunity for an exercise of will has betrayed her judicial duty,” she said.