Takeaways: Pardon power, silent mics on Barrett’s final day

Health care again played a starring role in Supreme Court nominee Amy Coney Barrett’s confirmation hearing before the Senate Judiciary Committee as Democrats sought to highlight an issue they want voters to consider on Election Day.

During Wednesday’s hearing, Barrett maintained her view that it would be inappropriate to comment on the national health care law or other cases that may come before her as a justice. She also declined to say whether a president can pardon himself.

Republicans appeared undeterred and likely successful in their effort to have Barrett confirmed before the election, just three weeks away.

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Takeaways from Day 3 of the hearing:

FILLING A SEAT IN TIME FOR ‘OBAMACARE’ CASE

Democrats noted that Trump has made clear he wishes to undo the Affordable Care Act, saying Trump and Senate Republicans are rushing to confirm Barrett so she can be seated in time to hear a case next month challenging that ‘Obamacare’ law.

Sen. Dick Durbin, D-Ill., said there’s an "orange cloud" hanging over Barrett’s nomination — a political jab at Trump’s tan and a reference to the president’s oft-stated wish to overturn the law.

Barrett told senators she is not "hostile" to the law and promised to consider all arguments.

Republicans played down the threat to the health law posed by the court case. "This hearing has been more about Obamacare than it has you,” the committee chairman, Sen. Lindsey Graham, R-S.C., told Barrett. He added: "Obamacare is on the ballot” next month.

Republicans object to the health law because "it was written and passed on a partisan line,” Graham said. "Most big changes in society have more buy-in (from the public and the two political parties) than that. You’re talking about one-fifth of the American economy.”

Still, Graham and other Republicans stressed that even if parts of the law were struck down, important aspects such as coverage for preexisting conditions could still be preserved, under a concept known as severability. "The doctrine of severability presumes — and its goal is — to preserve (key parts of) the statute if that is possible,” Graham said.

Barrett agreed, saying, "The presumption is always in favor of severability.”

Republicans have introduced bills to protect Americans with preexisting conditions and bring down drug prices, said Sen. Chuck Grassley, R-Iowa. "And if we act, (voters) don’t have to worry about you doing away with preexisting conditions in some future case down the road,” he told Barrett.

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NO ONE IS ABOVE THE LAW

On another issue where Trump’s views and tweets are well-known, Barrett declined to say whether a president can pardon himself. But she said she agrees no one is above the law.

Under questioning from Sen. Patrick Leahy, D-Vt., Barrett said the question of a self-pardon has never come before the court. "That question may or may not arise, but it is one that calls for a legal analysis of what the scope of the pardon power is,” Barrett said. She said offering an opinion now "would be opining on an open question … it’s not one in which I can offer a view.”

Multiple investigations are looking into Trump’s taxes, his businesses and his associates, and he has said he has "an absolute right" to pardon himself.

While declining to address whether Trump would be able to pardon himself, Barrett said she agreed with Leahy’s assertion that "no one is above the law."

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NO PREVIEW OF JUDICIAL VIEWS

For the second straight day, Barrett repeatedly declined to give her personal views, or to preview how she might rule, on issues that could become before the court. Like other Supreme Court nominees, Barrett said she was prohibited from expressing those opinions by the "canons of judicial conduct."

In addition to a possible presidential self-pardon and whether to overturn the health law, Barrett said she could not give an opinion on whether she would withdraw from any election-related litigation involving Trump. He said when he nominated her that he wanted the full nine justices in place before any possible election decisions.

Barrett also said she can’t express a view on climate change because it is a "very contentious matter of public policy." Under questioning from Sen. Kamala Harris, D-Calif., the party’s vice presidential nominee, Barrett called climate change "politically controversial," adding that discussion of the issue is "inconsistent with the judicial role as I have explained.”

Scientists say climate change is caused by people burning fossil fuels such as coal, oil and natural gas and is worsening sharply. Parched lands in the American West are getting drier and suffering deadly wildfires, while the much wetter East keeps getting drenched in hurricanes and other mega-rainfall events. Climate change is magnifying both extremes.

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BREAKTHROUGH FOR CONSERVATIVE WOMEN

Graham opened Wednesday’s hearing by proclaiming Barrett’s expected confirmation a historic victory for conservative women. Like "conservatives of color,” conservative women, he said, are often "marginalized" in public life.

"This hearing, to me, is an opportunity to not punch through a glass ceiling but a reinforced concrete barrier around conservative women,” Graham told Barrett. "You are going to shatter that barrier.”

Graham said he has "never been more proud of a nominee" than he is of Barrett, a federal appeals court judge from Indiana. "This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology, and she is going to the court. This is history being made, folks.”

Barrett has declined to say how she would rule on a challenge to the Roe v. Wade decision that established abortion rights, but she has made clear she opposes abortion rights and signed a 2006 letter objecting to "abortion on demand."

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SHIFTING THE SUPREME COURT BALANCE

Sen. Chris Coons, D-Del., asked Barrett whether she would acknowledge that her confirmation would mean a shift to the right on the Supreme Court that would have "profound" implications.

Coons referred to an interview that Barrett gave where she spoke of a balance shift if Merrick Garland, a federal appeals court judge nominated in 2016 by President Barack Obama, were elevated to the high court. Obama picked Garland after Justice Antonin Scalia’s death, but Republicans in the Senate refused give Garland a hearing, citing the presidential election that was months away that year.

Barrett told Coons she was referring in the interview to Garland’s judicial approach, not his more liberal views. Unlike the conservative Scalia, Garland was not an originalist, which refers to a way of interpreting the Constitution that focuses on the text and Founding Fathers’ intentions in resolving legal disputes.

"It would be away from one balance and toward another in terms of how judges think about the text,″ said Barrett, who like Scalia is an originalist.

Coons noted that Barrett, who claims Scalia as her mentor, would replace Justice Ruth Bader Ginsburg, who was not an originalist and was the court’s liberal leader. Barrett’s confirmation would shift the court’s previous 5-4 conservative majority to 6-3.

Americans need to better understand the originalist philosophy, Coons said, "because I think it means our entire modern understanding of certain constitutional commitments around liberty, privacy and equality under the law could, in fact, be rolled back to 19th or even 18th century understandings in a way unrecognizable to most Americans.”

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SOUNDS OF SILENCE

The hearing paused twice Wednesday because of audio problems in the Dirksen Senate Office Building. The sound in the hearing room cut out a little before 2 p.m. and was off for 40 minutes. It cut out again after the hearing resumed, this time for about 15 minutes.

The problem happened the first time just after Sen. Richard Blumenthal, D-Conn., asked Barrett whether she had gotten some rest after a long day of questioning Tuesday. "I did have a glass of wine. I’ll tell you, I needed that at the end of the day," she said.

On that point, "You have a right to remain silent,” Blumenthal told Barrett.