Live: Amy Coney Barrett's Supreme Court Confirmation The Senate Judiciary Committee is holding hearings on President Trump's Supreme Court nominee.

Live: Amy Coney Barrett's Supreme Court Confirmation

Senate Judiciary Committee Hearings On Trump's Nominee

Sen. Richard Blumenthal, D-Conn., speaks before the Senate Judiciary Committee during the confirmation hearing for nominee Amy Coney Barrett on Thursday. Susan Walsh/Pool/Getty Images hide caption

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Sen. Richard Blumenthal, D-Conn., speaks before the Senate Judiciary Committee during the confirmation hearing for nominee Amy Coney Barrett on Thursday.

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Democrats opposed the current Supreme Court confirmation process even before they knew Judge Amy Coney Barrett would be President Trump's nominee.

Republicans reneged on their earlier stance not to consider a Supreme Court vacancy ahead of an election, Democrats have argued, and they say the choice to do so will damage the Senate's credibility and that of the high court.

"You are moving ahead with this nomination because you can. But might does not make right," said Sen. Richard Blumenthal, D-Conn., on Thursday. "In your hearts, you know that's what's happening here is not right ... history will haunt this raw exercise of power."

In 2016, Republicans used their majority in the upper chamber to deny then-President Barack Obama a Supreme Court nominee, waiting until after Donald Trump had been elected and he could submit a name of his own. And although senators including the Judiciary Committee's chairman, Lindsey Graham, R-S.C., had suggested they wouldn't do that again, they are.

"This is not on the level," said Sen. Chris Coons, D-Del.

Then there is the nominee herself, whom Democrats call too hostile to health care and other issues they've made a priority.

In Democrats' telling, Trump and Senate Majority Leader Mitch McConnell, R-Ky., need Barrett confirmed as soon as possible so she will be in position to hear arguments in a case in November that could affect the Affordable Care Act.

Republicans haven't been able to throw out the law, also known as Obamacare, through action in Congress — but with Barrett, they could try again, her critics say.

Republicans' discussion about Barrett's "humility," her dependence on texts, her interpretation of judicial doctrine — "that is a smokescreen," said Sen. Mazie Hirono, D-Hawaii.

She, Coons, Blumenthal and the other Judiciary Committee members warn that the Barrett-era Supreme Court could be consequential across a number of other issues, too, and they cited Barrett's unwillingness to give substantive answers about climate change, voting practices and even Trump's claim about his power to pardon himself.

Barrett, invoking former Justice Ruth Bader Ginsburg, whose seat she would take, argued that it would be inappropriate for her to talk in detail about policy matters she might confront on the court. Democrats hear that as an alarm bell for their priorities — albeit one they're not in a position to do anything about.

There has been little tension about Barrett's nomination since a sufficient number of members of the Senate majority suggested they would go along generally and support her specifically, and she appears on track to be confirmed.

The Senate Judiciary Committee's ranking member, 87-year-old Dianne Feinstein of California, once hoped to preside as chairwoman over a slate of nominees offered by President Hillary Clinton. On Thursday, Feinstein lamented the turn that history took instead.

"These are lifetime appointments. They last for decades. What is done here will affect policies long after our lifetimes end," she said. "There's never been a situation quite like this."

Sen. John Cornyn, R-Texas, speaks on the fourth day of confirmation hearings for Supreme Court nominee Judge Amy Coney Barrett. Greg Nash/Pool/Getty Images hide caption

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Sen. John Cornyn, R-Texas, speaks on the fourth day of confirmation hearings for Supreme Court nominee Judge Amy Coney Barrett.

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In a less sedate, less distinguished and deliberative body than the Senate Judiciary Committee, Republicans would be high-fiving and turning cartwheels over Judge Amy Coney Barrett.

Instead they've been doing that only with their rhetoric, heaping her with praise and defending her in ripostes following what the majority members sometimes called inappropriate attacks by Democrats.

Sen. John Cornyn, R-Texas, summarized what he called Democrats' fears about Barrett pre-judging issues or cases in the fourth day of the hearing on Thursday: "That's just absurd!"

Cornyn, Chairman Lindsey Graham, R-S.C., and others say Barrett's qualifications are impeccable, her views are appropriate and her biography — as a young mother balancing her career as a legal all-star with her children and family — make her a shoo-in for the high court.

Happily for the majority, enough senators already are persuaded, and may already have been even before Barrett's name formally was submitted, that her confirmation hearings haven't required serious persuasion.

Republicans have been smiling and enjoying themselves, cracking wise and even needling each other about baseball — as Cornyn, his Lone Star colleague Ted Cruz and Nebraska's Sen. Ben Sasse did on Wednesday.

The majority walks a tightrope, however, in how it talks to Americans about its support for Barrett. Republicans expect her to pull the Supreme Court rightward and they prize her record and past positions — but at the same time, they've contested the idea that she would pre-judge issues or simply be a rubber stamp for President Trump.

That's what they and Trump want, but in the hearings they cast their expectations according to what they call Barrett's "humility" as a judge, her deference to the text of law in her cases — which, supporters expect, will result in wins for them.

Republicans have been working assiduously for years to reshape the federal judiciary. Majority Leader Mitch McConnell, R-Ky., did not permit the Senate to consider President Obama's nominee in 2016 and held open the vacancy until Trump could submit his first, Neil Gorsuch.

Since then, the Senate has confirmed some 200 federal judges, including one more Supreme Court justice, as NPR's Carrie Johnson has reported — and likely will confirm a third, in Barrett, this month.

Republicans on Thursday brushed aside Democrats' complaints about contravening the 2016 precedent — the game changed after the acrimonious confirmation of Justice Brett Kavanaugh, Graham said.

And there is no prohibition against and every reason to support the Senate acting as swiftly as practical, said Sen. John Kennedy, R-La.: "The Constitution is unaffected by the electoral calendar when it comes to dealing with a Supreme Court nomination."

Graham summed up the case on Wednesday evening as the committee wrapped up its last day with Barrett in person.

"You're exactly who a Republican would be looking at and picking," he told the nominee. "Democrats, not so much. ... In another time, in another place, you would get everybody's vote. It's not about you. It's about us."

Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., speaks during the confirmation hearing for Supreme Court nominee Amy Coney Barrett on Thursday. Susan Walsh/Pool/Getty Images hide caption

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Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., speaks during the confirmation hearing for Supreme Court nominee Amy Coney Barrett on Thursday.

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The Senate Judiciary Committee is scheduled to vote on Judge Amy Coney Barrett's nomination to the Supreme Court at 1 p.m. ET on Oct. 22.

The date was approved in a party-line vote, 12-10, with most Democrats voting by proxy because they did not appear in person due to the coronavirus. Republicans are hoping the Senate will vote to confirm Barrett before the Nov. 3 election, and they have the votes to do so.

After the committee vote on the 22nd, the full Senate will vote on the nomination.

Sen. Lindsey Graham, R-S.C., chairman of the committee, declined a request Thursday by Sen. Dick Durbin, D-Ill., to delay the panel's vote. Durbin argued that Graham could not move forward with approval of the date under the rules of the committee because two minority members were not present.

Graham said Democrats would do the same if the tables were turned.

"Sen. Durbin with all due respect, we've had this problem in the past. We're dealing with it the way we are today," he said. "If we create this problem for you in the future, you're going to do what I'm going to do, which is move forward on the business of the committee."

The confirmation hearings began Monday with opening statements from senators and Barrett herself, followed by two days of questions posed to the nominee by members of the panel.

On Thursday, the committee is hearing from witnesses for and against the nominee. Barrett will not be present.

But senators spent the morning arguing over the process. Volleying from one side of the aisle to the other, senators made their case for and against continuing with the proceedings.

Democrats tried to delay what they characterized as rushed proceedings that defied precedent. Republicans pointed to previous Supreme Court nomination examples to support their argument for moving forward.

Durbin decried what he painted as the demise of the process. He argued that the hearings have completely lost their meaning in these incredibly polarized political times.

"One of the things that we have witnessed here and I have witnessed in the time that I have served on this committee is a denigration of the process to the point where it's almost useless," he said. "We've reached the point now where gifted, experienced jurists, legal scholars take that seat behind the table and then deny everything, refuse to answer anything."

Supporters and opponents of the confirmation of Judge Amy Coney Barrett rally Wednesday at the Supreme Court. On Thursday, witnesses will speak at the Senate Judiciary Committee for and against President Trump's nominee to the court. Jose Luis Magana/AP hide caption

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Supporters and opponents of the confirmation of Judge Amy Coney Barrett rally Wednesday at the Supreme Court. On Thursday, witnesses will speak at the Senate Judiciary Committee for and against President Trump's nominee to the court.

Jose Luis Magana/AP

This is scheduled to be the last day of Judge Amy Coney Barrett's Senate confirmation hearings, and after two days of questioning Barrett, senators will turn to character witnesses and those who are concerned about her likely elevation to the Supreme Court.

Barrett will not be present.

Republicans will call on Amanda Rauh-Bieri, a former law clerk for Barrett on the 7th Circuit Court of Appeals, and Laura Wolk, the first blind woman to clerk on the U.S. Supreme Court and who has called Barrett her mentor.

They'll also hear from former appeals court Judge Thomas Griffith, whose retirement this year caused a controversy when a liberal group alleged that he stepped down from the bench to allow President Trump to appoint a replacement before the election.

Democrats have invited several advocates to speak. Stacy Staggs, a mother of 7-year-old twins, is one of them. According to a statement released by ranking Judiciary Committee member Dianne Feinstein, D-Calif, Staggs "will discuss the devastating effects on her family if the Supreme Court overturns the Affordable Care Act." Democrats also invited Crystal Good, who "fought for her right to obtain an abortion at age 16. Crystal will speak about the importance of reproductive rights and justice."

The Judiciary Committee is expected to vote Oct. 22 on Barrett's nomination, as Republicans press to confirm her in the full Senate before the Nov. 3 presidential election.

"You will be confirmed, God willing," Judiciary Committee Chairman Sen. Lindsey Graham, R-S.C., told Barrett at the close of Wednesday's hearing.

Listen to the Supreme Court confirmation hearings of Judge Amy Coney Barrett beginning Monday. Caroline Amenabar/NPR hide caption

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Listen to the Supreme Court confirmation hearings of Judge Amy Coney Barrett beginning Monday.

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Updated at 2:35 p.m. ET

The Senate Judiciary Committee held its fourth and final day of hearings to consider the nomination of Judge Amy Coney Barrett, President Trump's nominee for the Supreme Court, on Thursday.

Read through the highlights of the hearing here.

The seat was made vacant last month by the death of Justice Ruth Bader Ginsburg, launching a contentious nomination process just weeks before the Nov. 3 presidential election.

The process was complicated by several Senate Republicans testing positive for the coronavirus, including Senate Judiciary members Sens. Mike Lee and Thom Tillis.

Senate Majority Leader Mitch McConnell, R-Ky., said the committee would take additional safety precautions for the hearings, and senators will be allowed to ask questions remotely or in person.

If confirmed by Election Day, Judge Barrett's confirmation process would be one of the shortest of the past several decades.

For a recap and analysis of the hearings, subscribe to The NPR Politics Podcast.

This page originally published on Monday at 8:30 a.m. ET

Supreme Court nominee Amy Coney Barrett arrives Wednesday for the third day of her confirmation hearing with the Senate Judiciary Committee. J. Scott Applewhite/AP hide caption

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Supreme Court nominee Amy Coney Barrett arrives Wednesday for the third day of her confirmation hearing with the Senate Judiciary Committee.

J. Scott Applewhite/AP

Updated at 2:33 p.m. ET

The Senate Judiciary Committee held its fourth and final day of hearings on Thursday on President Trump's nomination of Amy Coney Barrett to the U.S. Supreme Court.

If confirmed, Barrett, 48, would replace the late Ruth Bader Ginsburg on the high court.

Barrett herself did not attend Thursday's hearing; the day was set aside for outside witnesses. The nominee faced hours of questioning over two days by the committee earlier this week. Read through the hearing highlights here.

Barrett's nomination has become a political lightning rod as Democrats charge that Republicans are rushing it to get Barrett confirmed before the Nov. 3 election. Democrats say the seat should be filled by the next president.

The coronavirus pandemic also played a part in the division over the hearings. Two GOP members of the panel, Sens. Mike Lee of Utah and Thom Tillis of North Carolina, tested positive for the virus but were later cleared by their doctors to participate in person.

Democrats, led by Sen. Patrick Leahy of Vermont, had demanded that the hearing be postponed "to ensure that we don't risk the health and safety of fellow senators, Senate staff, other Senate employees, as well as Judge Barrett and her family."

But committee chairman Sen. Lindsey Graham, R-S.C., vowed to press forward and tweeted, "Any Senator who wants to participate virtually will be allowed to do so."

All members who wish to vote on Barrett's nomination will have to be present, however, when it comes time. The committee is set to vote on Oct. 22, followed by a full Senate vote.

This post was originally published on Monday at 8 a.m. ET.

Sen. Lindsey Graham, R-S.C., looks on as Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her confirmation hearing. Pool/Getty Images hide caption

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Sen. Lindsey Graham, R-S.C., looks on as Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her confirmation hearing.

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In his final words Wednesday, Senate Judiciary Chairman Lindsey Graham, R-S.C., commended his colleagues on both sides of the aisle for remaining cordial throughout the first three days of Supreme Court nominee Judge Amy Coney Barrett's confirmation hearing.

Graham said the professionalism exhibited by his fellow senators was a welcome relief in what has been a polarizing and contentious year.

"I just want to say to my Democratic colleagues, I have lost sleep over this hearing. I did not know how it would go," he said. "Thank you on behalf of the country for allowing us to get through this hearing in a fashion that I think it is befitting of the Senate."

Graham called Barrett "one of the most amazing human beings I've ever met in my life" and praised her extensive knowledge of the law. But he said, this process was never about changing anybody's mind, pointing to the Democrats on the committee.

"In another time, another place, you would get everybody's vote," Graham said. "It's not about you. It's about us. Somehow we have lost our way."

Graham acknowledged Democrats who over the past few days have argued Barrett represents the exact opposite of what the late Justice Ruth Bader Ginsburg stood for. Graham said he hoped the American people would accept Barrett even though she is markedly different.

"I hope it's OK that you can be pro-life and adhere to your faith, and still be considered by your fellow citizens worthy of this job," he said. "I see in you someone who's not only highly qualified to be on the court in every way possible, but somebody that has broken new ground in a positive way for the country."

Democratic Sen. Dick Durbin of Illinois also recognized the intense public scrutiny Barrett and her family have undergone during this controversial confirmation process. He apologized to her children for what they've had to endure.

"I heard you or someone say that it was painful, there were painful moments for some of the kids. I'm sorry. I hope that I was not the cause, and we were not the cause," he said. "But I will just tell you, they are innocent victims, and they should not have to go through this."

After the hearing, Democrats said there wasn't enough time to bring more heat on Barrett, and that Barrett wasn't as confrontational as Justice Brett Kavanaugh was.

Claudia Grisales contributed to this report.

Sen. Cory Booker, D-N.J., questions Supreme Court nominee Judge Amy Coney Barrett as she testifies before the Senate Judiciary Committee on the third day of her confirmation hearing. (Andrew Caballero-Reynolds-Pool/Getty Images) Pool/Getty Images hide caption

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Sen. Cory Booker, D-N.J., questions Supreme Court nominee Judge Amy Coney Barrett as she testifies before the Senate Judiciary Committee on the third day of her confirmation hearing. (Andrew Caballero-Reynolds-Pool/Getty Images)

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Sen. Cory Booker, D-N.J., continued to press Supreme Court nominee Judge Amy Coney Barrett on Wednesday on the role of racial bias in the criminal justice system during the third day of her confirmation hearing.

In her exchange with Booker the day before, Barrett recognized that implicit bias does exist within the justice system, but she failed to discuss the issue in detail.

Booker cited a particular study on racial disparities in sentencing, which he claimed he had previously discussed with Barrett. Barrett said she wasn't aware of the data Booker was referring to, but she had read studies on implicit bias in her research.

On Wednesday, Booker brought up the issue again. He argued that judges have played a vital role in improving racial equality throughout U.S. history and asked Barrett what she has read to educate herself on the issue of racism.

Again, Barrett was vague in her response.

"Well Sen. Booker, I will say what I have learned about it has mostly been in conversations with people, and at Notre Dame as at many other universities, it's a topic of conversation in many classrooms, but it's not something that I can say, yes I've done research on this and read X, Y and Z," she said.

But Barrett has written about the issue, Booker said. In a 2008 blog post, Barrett raised the administrative hurdles presented when the U.S. Sentencing Commission retroactively reduced sentences for some 20,000 Americans charged for drug crimes, Booker said.

"But never in the blog article did you mention that this was unjust," he said. "There was no deference to how serious this is for the 20,000 Americans, 98% of them who are Black and Brown. You just questioned, 'Why are we doing this?'"

Barrett said she wrote the post because the reform was "table talk" between her and her husband, who at the time served as a federal prosecutor.

Booker said he was concerned by that response, pointing to the current racial reckoning that has swept the country. He expressed the fear of many Americans who don't feel they have equal rights under the law, and the steps many have taken to learn more about those disparities.

"And so I hope you understand my heart when I look at a justice who it seems that the fix is in, is gonna serve on the Supreme Court, and hasn't taken steps to understand the pervasiveness, the facts, the truth about cases of race that are going to come before you," he said.

Sen. Mike Crapo, R-Idaho, speaks during the confirmation hearing for Supreme Court nominee Amy Coney Barrett on Wednesday. Demetrius Freeman/AP hide caption

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Sen. Mike Crapo, R-Idaho, speaks during the confirmation hearing for Supreme Court nominee Amy Coney Barrett on Wednesday.

Demetrius Freeman/AP

Sen. Mike Crapo, R-Idaho, said he could only find a single case in which Supreme Court nominee Amy Coney Barrett didn't follow the precedent of her 7th Circuit Court of Appeals — and that was one in which the Supreme Court itself had established a new doctrine, he said.

Crapo ticked through a series of statistics on Wednesday during a portion of the hearing in which he tried to puncture what he called Democrats' implications that Barrett, notwithstanding her emphasis about "textualism," might actually prove to be a more activist member of the Supreme Court.

Barrett stuck with precedent in most of her cases and in one example, she even was part of a ruling in an abortion case that contravened her own personal outlook, Crapo said.

Barrett was in the middle of the pack of active judges on the 7th Circuit, he said.

"This is not the record of someone who is an activist in overturning precedent. This is the record of someone who follows precedent," he said.

Republicans don't need to convince one another or Democrats to support Barrett; the majority can confirm her as it stands. But Barrett's sponsors have tried to defend her with comments aimed at a general audience, including in Crapo's remarks that he said he hoped would reassure people about what they would be getting on the new Supreme Court.

The Idaho senator was responding to comments from Democratic critics including Sens. Cory Booker of New Jersey and Chris Coons of Delaware, who had civil exchanges with Barrett on Wednesday that nonetheless included complaints or concerns about her record.

Booker called himself disappointed about Barrett's inability to cite books, studies, briefs or other materials she's read about structural bias in the U.S. legal system, which, Booker argued, disadvantages Black people.

Crapo called that insulting about a prospective justice, in Barrett, who has two Black children of her own.

And in the case of Coons, he grouped Barrett with the existing conservative majority on the Supreme Court and suggested that, with her onboard, the high court would feel newly emboldened to revisit past cases in a way helpful to Republicans or according to the wishes of cultural conservatives.

Crapo's recitation, he said, was intended to dispel that idea.

"I found it amazing that you would be accused of being a judicial activist because you are a textualist and originalist, as I understand your testimony, and your record and your writing."

Sen. Chris Coons, D-Del., looks on as Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her confirmation hearings. Stefani Reynolds/Pool/Getty Images hide caption

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Sen. Chris Coons, D-Del., looks on as Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her confirmation hearings.

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Judge Amy Coney Barrett declined to answer a question Wednesday from Sen. Chris Coons, D-Del., about whether the Supreme Court ruling that protects the right to buy and use contraception was correctly decided.

The 7-2 decision in Griswold v. Connecticut is viewed as the basis for Roe v. Wade, the 1973 ruling that legalized a woman's right to abortion nationwide.

Instead of directly answering Coons' question about whether the Supreme Court made the appropriate ruling in Griswold, Barrett said she found it unlikely that decision would ever be overturned.

"It seems unthinkable that any legislature would pass such a law" taking away the right to buy or use contraception, she said. "I think the only reason that it's even worth asking that question is to lay a predicate for whether Roe was rightly decided."

"I think that Griswold is very, very, very, very, very, very unlikely to go anywhere," she added.

Coons responded by pointing out that during their confirmation hearings, current Justices John Roberts, Samuel Alito, Brett Kavanaugh and Elena Kagan all spoke about Griswold.

"Your predecessors talked about Griswold in detail," Coons said. "In fact Justice Kagan, who you've been citing on the 'no grading,' said 'I do' that she's willing to speak to it and 'as every nominee has, I do support the result in Griswold,' " he added.

Again, Barrett responded by saying it was highly unlikely Griswold would ever go away.

But in Little Sisters of the Poor v. Pennsylvania, the high court ruled the Trump administration had the right to allow employers to deny contraceptive coverage on the basis of religion.

Throughout the hearings this week, Democrats have centered on the issue of precedent and have asked Barrett, with little success, about her views on landmark cases in an attempt to gauge her commitment to it.

Barrett has repeatedly cited early Supreme Court nominees, including Kagan and the late Justice Ruth Bader Ginsburg, in her avoidance of giving specific viewpoints.

Many Democrats fear Barrett would move to overrule some of the court's precedents, particularly Roe, based on her writings. Coons pointed to a 2013 Texas Law Review article in which Barrett argued that a Supreme Court justice should disregard precedent if she believes an earlier ruling was incorrectly founded.

When asked about Roe on Tuesday, Barrett told Sen. Amy Klobuchar, D-Minn., that she did not consider the case to be a super-precedent. Barrett described super-precedents as cases that are so widely agreed upon that no one would ever push for them to be overruled, such as Brown v. Board of Education.

"Roe is not a super-precedent because calls for its overruling have never ceased, but that doesn't mean that Roe should be overruled," Barrett said.

Tourists look into the chamber of the U.S. Supreme Court in February 2016. Mark Wilson/Getty Images hide caption

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Tourists look into the chamber of the U.S. Supreme Court in February 2016.

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Judge Amy Coney Barrett told the Senate Judiciary Committee on Wednesday that she would "keep an open mind" about the prospect of admitting TV cameras to the Supreme Court — a subject that divides the panel.

She gave that answer to one of the top Republicans on the committee, Sen. Chuck Grassley of Iowa, who has long supported more visibility into the high court's proceedings, including with 2015 legislation that would permit C-SPAN-like coverage of federal courts if judges chose.

Grassley joked that he didn't expect the matter to be resolved "in my lifetime," but he stood by his long-held position that showing the workings of the court would help Americans better understand the judiciary.

The high court has resisted that move, although it does release audio recordings of oral arguments and admits journalists and audience members. In May, the court livestreamed audio of the arguments for the first time.

Another Republican on the panel, Nebraska's Ben Sasse, said on Wednesday he thought the court's current practices were appropriate.

Admitting TV coverage would lead to a lot of "nonsense," Sasse said, and although he said he agreed with Grassley that it's a good idea for the Supreme Court to reach out more to Americans, doing so with live coverage would be a "bad idea."

The high court has been dubbed the apex of a "judicial monastery," and the least contemporary of the three branches of government set out by the Constitution. Sasse and Barrett talked on Tuesday about another aspect of those old practices — the reason why judges wear black robes.

Defenders of the court's current practices hail their closeness to those that would have been recognized by the framers of the Constitution or earlier generations of American leaders — and skeptics also point to the effect that TV cameras have had elsewhere in Washington.

Televising White House press conferences turned them into "gotcha" theatrics, according to this school of thought, and critics have spent years discussing what they call the cheapening of the workings of the legislature by putting them on TV.

"It's probably the worst thing that has happened to the Congress," as Rep. Don Young, R-Alaska, told USA Today in 2014.

Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her confirmation hearing Wednesday. (Andrew Caballero-Reynolds-Pool/Getty Images) Pool/Getty Images hide caption

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Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her confirmation hearing Wednesday. (Andrew Caballero-Reynolds-Pool/Getty Images)

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Democrats on the Senate Judiciary Committee continued to question Supreme Court nominee Amy Coney Barrett regarding her views on the Affordable Care Act, as Barrett continued to avoid stating them.

The constitutionality of the ACA is being challenged by the Trump administration and a group of Republican state attorneys general, and the Supreme Court is scheduled to hear oral arguments on the case next month.

Judge Barrett pushed back against questions from Sen. Amy Klobuchar, D-Minn., that she said appeared to suggest that Barrett had shaped her criticism of the Supreme Court decision to uphold the Affordable Care Act in order to be nominated to the Supreme Court.

"To the extent you're suggesting this was like an open letter to President Trump, it was not," she said.

At issue is a law journal article in which Barrett, while a professor, critiqued Chief Justice John Roberts' rationale in upholding the ACA – that it was constitutional because the individual mandate was a tax, and hence came within Congress's purview. Democrats on the Judiciary Committee have repeatedly made the case that Barrett's criticism of the decision imperils the ACA, which comes up before the court Nov. 10. Barrett has said she is not hostile to the ACA, a point she reiterated today.

"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," she said.

She did say, however, that she is "aware that the president opposes the Affordable Care Act. I am aware that he has criticized the Affordable Care Act."

But she added, "I have no animus or agenda for the Affordable Care Act."

Sen. Sheldon Whitehouse, D-R.I., speaks during the third day of the Senate Judiciary Committee confirmation hearing for Supreme Court nominee Judge Amy Coney Barrett on Wednesday. Drew Angerer/Getty Images hide caption

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Sen. Sheldon Whitehouse, D-R.I., speaks during the third day of the Senate Judiciary Committee confirmation hearing for Supreme Court nominee Judge Amy Coney Barrett on Wednesday.

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Sen. Sheldon Whitehouse, D.-R.I., urged Supreme Court nominee Judge Amy Coney Barrett to contemplate — and possibly act to end — a number of practices he called damaging to the federal judiciary and the Supreme Court.

Whitehouse, who used his time in Tuesday's hearing to lay out what he called the connections between dark-money groups and legal advocates that have helped support the revolution in the federal judiciary under President Trump and Senate Majority Leader Mitch McConnell, R-Ky., made a simpler argument on Wednesday.

The wealthiest and most powerful clients and lawyers used their knowledge of legal practices at the highest levels, along with, in at least one case, signals by then-Supreme Court Justice Antonin Scalia about his readiness to overturn an existing precedent, in order to bring about a case that ultimately disposed of a doctrine they opposed, Whitehouse said.

He also suggested the Supreme Court might need to apply the same ethical guidelines in use at the appellate level — Barrett said she was surprised it already doesn't.

Watch the full exchange here:

Democratic Sens. Dianne Feinstein and Dick Durbin questioned Judge Amy Coney Barrett on voting rights during Wednesday's confirmation hearing. Kevin Dietsch/Pool/Getty Images hide caption

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Democratic Sens. Dianne Feinstein and Dick Durbin questioned Judge Amy Coney Barrett on voting rights during Wednesday's confirmation hearing.

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Democrats are litigating Judge Amy Coney Barrett's record and outlook on voting as the Senate Judiciary Committee wraps up her three days in the spotlight this week.

Sen. Dianne Feinstein of California said she worried about Barrett's longtime closeness with Justice Antonin Scalia in view of Scalia's antipathy toward the Voting Rights Act, which the Supreme Court partly dismantled in a 2013 ruling.

Feinstein asked Barrett about Scalia's criticism about sustained support for the Voting Rights Act, which Feinstein said he attributed to the "perpetuation of racial entitlement."

Barrett sought to clarify that she isn't Scalia's doppelganger — she said she shares his underlying philosophy but she wouldn't simply be a carbon copy of him on the Supreme Court. And she returned to her stock response in addressing the substance of Feinstein's question: that she won't opine about precedents or cases in view of her need to address them clean when she's on the bench.

Sen. Dick Durbin of Illinois returned to voting rights questions during his portion of the morning on Wednesday by returning to a case Barrett handled on the appeals court. She wrote that a man involved who had been convicted of a crime should have his right restored to own a gun but not to vote, as Durbin described the situation.

"You made a distinction there that is hard to understand and difficult to explain," Durbin said.

(Read more about that case and Barrett's record on guns here.)

Democrats can't stop Barrett from being confirmed because Republicans have enough votes on their own, so Democrats have been raising criticism about what they call Barrett's political closeness to President Trump in view of Trump's comments expecting his election to be resolved by the Supreme Court.

For Durbin, Feinstein and the others, Barrett's record and her views make her dangerous to the expansion of voting access that Democrats have made central to their political brand in recent years.

The judge has tried to defend herself within the parameters of the limited answers she's willing to give, and on Wednesday she told Durbin he was getting it wrong: "I've testified here that I believe voting is a fundamental right," Barrett said.

Republican Sen. Ted Cruz of Texas further defended Barrett in his questioning period — arguing that in the case Durbin cited, Barrett was simply following the Constitution on the rights to vote and to bear arms.

Sen. Cory Booker looks on as Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the second day of her Supreme Court confirmation hearing Tuesday. Pool/Getty Images hide caption

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Sen. Cory Booker looks on as Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the second day of her Supreme Court confirmation hearing Tuesday.

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Amy Coney Barrett declined to address whether she believes President Trump has the power to pardon himself, calling it a matter that could come before the Supreme Court after she is confirmed.

"That would be a legal question. That would be a Constitutional question — and so in keeping with my obligation not to give hints, previews or forecasts of how I would resolve a case, that's not one that I can answer," she said.

Sen. Cory Booker, D-N.J., seemed unsurprised by the nominee's reticence — likely because she has been giving versions of the same answer all day — but said he too believes it may become an issue that confronts Washington at some point.

"I think I agree with you," Booker said. "It is an issue right now. It's never been an issue before. But it is an issue right now — that our president may intend to pardon himself for future crimes or past crimes."

Trump has asserted he has the power to pardon himself, although when he made that claim during the Russia imbroglio he said there was no need to use it because he hadn't done anything wrong.

There's no legal consensus about that aspect of Trump's pardon power and no president has ever tested it. Trump denies he has broken any laws or done anything wrong.

In the eyes of some of the president's critics, however, he has been guilty of lawbreaking.

As president, Trump benefits from a legal doctrine that prohibits the Justice Department from seeking an indictment against him, under the theory that federal prosecutors can't use their powers against their own ultimate boss: the chief executive.

That stayed the hand of former special counsel Robert Mueller, whose report in the Russia imbroglio did not rule out the prospect that Trump may have, for example, obstructed justice in seeking to quash the investigation.

Other questions since have been raised about the actions of Trump and his camp in the 2016 presidential campaign, the answers Trump gave to Mueller's office during the investigation and Trump's financial and business practices.

The uncertain legal situation has raised the highly unusual prospect that Trump may face some criminal liability for his actions after he leaves office and no longer enjoys the protections he now does as president.

If Trump were defeated in next month's election, the question of what to do about him could be one of the toughest early challenges for the Justice Department under a Joe Biden administration, as NPR's Carrie Johnson has reported.

This is what prompted Booker's question on Tuesday for Barrett: If Trump attempt to short-circuit a prosecution with a pardon for himself, would that stand? As Barrett suggested, it likely would be a matter for the Supreme Court on which she'd sit.

Sen. Cory Booker, D-N.J., attends the second day of the Senate Judiciary Committee confirmation hearing for Supreme Court nominee Judge Amy Coney Barrett on Tuesday in Washington, D.C. (Hilary Swift-Pool/Getty Images) Pool/Getty Images hide caption

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Sen. Cory Booker, D-N.J., attends the second day of the Senate Judiciary Committee confirmation hearing for Supreme Court nominee Judge Amy Coney Barrett on Tuesday in Washington, D.C. (Hilary Swift-Pool/Getty Images)

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Judge Amy Coney Barrett acknowledged Tuesday the existence of implicit bias within the criminal justice system when questioned about the issue by Democratic Sen. Cory Booker of New Jersey.

Booker said he was concerned by Barrett's responses in an earlier exchange with Sen. Dick Durbin of Illinois in which the judge said tackling the issue of improving racial equality is up to lawmakers and not judges.

But when Booker pressed her on the issue of racism in the justice system, Barrett acknowledged implicit bias does exist within that system.

"It would be hard to imagine a criminal justice system as big as ours without having an implicit bias in it," Barrett said. "I think that in our large criminal justice system, it would be inconceivable that there wasn't some implicit bias."

Booker said he spoke to Barrett in a meeting before her confirmation hearings began this week about data from the U.S. Sentencing Commission highlighting racial disparities in sentencing. Barrett said she was not aware of that specific study, but that she was aware of many studies that presented evidence of implicit bias in the criminal justice system.

Then Booker grilled Barrett further, pointing to her recent opinion in a work discrimination case that he said did not square with that statement.

The 2019 case involved a Black Illinois transportation employee who sued the department after he was fired. He said his supervisor had created a hostile work environment and called him the N-word.

The unanimous three-judge panel ruled that the employee had failed to prove that he had been fired because of his race. In her opinion, Barrett wrote that the N-word is an "egregious racial epithet," but she argued that the employee couldn't win by simply proving the N-word was said to him.

Booker noted that Justice Brett Kavanaugh, when he served on the U.S. Court of Appeals for the D.C. Circuit, argued the exact opposite, writing that being called the N-word in and of itself creates a hostile work environment.

Barrett defended her decision, saying that Booker mischaracterized what she said. The key part of that case was that the defendant did not "tie the use of the N-word into the evidence that he introduced for his hostile work environment claim," Barrett said. He based his argument on the use of expletives spewed at him, but those expletives presented to the court did not include the N-word.

"And so as a panel, we were constrained to decide based on the case the plaintiff had presented before us," Barrett explained. "So the panel very carefully wrote the opinion to make clear that it was possible for one use of the N-word to be enough to establish a hostile work environment claim if it were pled that way."

Supreme Court nominee Amy Coney Barrett says she didn't mean to offend the LGBTQ community by using the term "sexual preference" in discussing the same-sex marriage ruling. Jim Lo Scalzo/Pool/AP hide caption

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Supreme Court nominee Amy Coney Barrett says she didn't mean to offend the LGBTQ community by using the term "sexual preference" in discussing the same-sex marriage ruling.

Jim Lo Scalzo/Pool/AP

Judge Amy Coney Barrett apologized for using the term "sexual preference" when discussing the outcome of the 2015 decision in Obergefell v. Hodges, which granted marriage rights to same-sex couples.

Barrett's comments were a response to a lengthy statement by Sen. Mazie Hirono, D-Hawaii, who detailed why many in the LGBTQ community may be concerned that the rights granted in Obergefell could be overturned if Barrett is confirmed to the Supreme Court.

"Not once but twice you used the term 'sexual preferences' to describe those in the LGBTQ community," Hirono said. "Let me make clear, 'sexual preference' is an offensive and outdated term. It is used by anti-LGTBQ activists to suggest that sexual orientation is a choice."

Hirono went on to say that sexual orientation is a key part of a person's identity and argued that former Justice Antonin Scalia, whose judicial philosophy Barrett has said she follows, dissented in the Obergefell decision.

"That sexual orientation is both a normal expression of human sexuality and immutable was a key part of the majority's opinion in Obergefell," Hirono said. "Which, by the way, Scalia did not agree with."

The senator ended her remarks without allowing Barrett to respond. After the next committee member, Sen. Joni Ernst, R-Iowa, began, Barrett asked to speak directly to Hirono's comments.

"I certainly didn't mean and would never mean to use a term that would cause any offense in the LGBTQ community," Barrett said. "If I did, I greatly apologize for that. I simply meant to be referring to Obergefell's holding with regard to same-sex marriage."

Barrett also explained that she has declined to answer questions about her view on Obergefell for the same reason she has declined to comment on other court rulings.

"I was certainly not indicating disagreement with it," Barrett said. "The point of now answering was to simply say it was inappropriate for me to say a response."

Sen. Chris Coons, D-Del., talks during the confirmation hearing for Supreme Court nominee Amy Coney Barrett Tuesday. Patrick Semansky/AP hide caption

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Sen. Chris Coons, D-Del., talks during the confirmation hearing for Supreme Court nominee Amy Coney Barrett Tuesday.

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Amy Coney Barrett told Democrats Tuesday that she would take recusal seriously if any case reaches the Supreme Court involving President Trump's election — then stated more strongly that she would not be Trump's "pawn."

Delaware Sen. Chris Coons revived the question about an election dispute during his portion of the hearing on Tuesday afternoon. The judge said she wanted to make as clear as possible that she would be her own woman.

"I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people," Barrett said.

"I do assure you of my integrity," she continued, "and I do assure you that I would take that question very seriously."

The federal recusal statutes, which Barrett and Coons discussed, contemplate a judge absenting herself from a case if she has a conflict — a relationship with one of the parties in the case, for example — or the appearance that the judge can't be fair.

Democrats have criticized appointees they consider too loyal to Trump personally and not to their duties, such as Director of National Intelligence John Ratcliffe, whom critics call the president's factotum within the spy world.

Ratcliffe vowed at his confirmation hearing, in tones like those used by Barrett on Tuesday, that he was his own man and that he would discharge his duties accordingly.

Coons and Democrats, however, are leery following Trump's comments and past practices. Barrett, meanwhile, has restated over and over that she isn't willing to talk in detail about how she might rule if confirmed; all she can do, she said, is promise she'll reach decisions the right way.

Supreme Court Justices (from left) John Roberts, Elena Kagan, Neil Gorsuch and Brett Kavanaugh attend the State of the Union address on Feb. 4, 2020. In her confirmation hearing, Judge Amy Coney Barrett explained the tradition of judges wearing black robes. Mario Tama/Getty Images hide caption

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Supreme Court Justices (from left) John Roberts, Elena Kagan, Neil Gorsuch and Brett Kavanaugh attend the State of the Union address on Feb. 4, 2020. In her confirmation hearing, Judge Amy Coney Barrett explained the tradition of judges wearing black robes.

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Republicans control the Senate and they are in lockstep behind Supreme Court nominee Amy Coney Barrett, which means they don't need to convince one another, or any Democrats, about supporting her.

That left members free Tuesday on the second day of her confirmation hearing to digress, as Texas Sen. Ted Cruz did, from a sharply argued indictment of Democrats, whom he accused of abandoning democracy, to pleasant get-to-know-you questions with Barrett about whether she plays an instrument (the piano) or speaks a foreign language.

Barrett took French in high school but asked Cruz not to ask her to speak any now; the senator graciously accommodated her request and moved on to the merits of adoption, in view of Barrett's children.

Nebraska Sen. Ben Sasse reprised some of his "civics vs politics" discourse from Monday and then asked Barrett something that many other Americans watching these proceedings also may have had on their minds, at one point or another: Why do judges wear black robes in court?

Barrett, who was a law professor before her current stint as an appellate judge, was ready with an explanation.

"Chief Justice John Marshall started the practice," she said. "In the beginning, justices used to wear colorful robes that identified them with the schools that they graduated from."

Barrett takes pride in representing Notre Dame; she told senators on Monday she would be the only justice on the high court, if she's confirmed, without a degree from Harvard or Yale. But as the judge continued, the color of the robe is no longer about alumni spirit.

"John Marshall, at his investiture, decided to wear a simple black robe. Pretty soon, the other justices followed suit and now, all judges do it," she said. "I think the black robe shows that justice is blind. We all address the law the same, and I think it shows that once we put it on, we are standing united symbolically, speaking in the name of the law. Not speaking for ourselves as individuals."

Sen. Amy Klobuchar, D-Minn., talks during Tuesday's confirmation hearing for Supreme Court nominee Amy Coney Barrett. Klobuchar questioned Barrett on why, in past writing, she didn't consider the abortion rights decision Roe v. Wade a "super-precedent." Patrick Semansky/Pool/AP hide caption

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Sen. Amy Klobuchar, D-Minn., talks during Tuesday's confirmation hearing for Supreme Court nominee Amy Coney Barrett. Klobuchar questioned Barrett on why, in past writing, she didn't consider the abortion rights decision Roe v. Wade a "super-precedent."

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Supreme Court nominee Amy Coney Barrett has, like many of the recent nominees before her, been unwilling to tip her hand as to how she might rule on potential high-profile cases if confirmed to the high court.

But she also has left some hints as to her leanings, especially on the topic of abortion rights. As a University of Notre Dame Law School professor, Barrett signed an ad that stated, "It's time to put an end to the barbaric legacy of Roe v. Wade," referring to the landmark 1973 Supreme Court decision that legalized abortion nationwide.

During Tuesday's Senate Judiciary Committee hearing, Sen. Amy Klobuchar, D-Minn., referred to a law review article Barrett wrote, outlining her views on "super-precedents" and questioned why Barrett didn't consider Roe to be among them.

The way they're defined in scholarship, Barrett said, are "cases that are so well settled that no political actors and no people seriously push for their overruling. And I'm answering a lot of questions about Roe" in the confirmation hearing, she said, "which I think indicates that Roe doesn't fall in that category."

Barrett went on to say that that scholars "across the spectrum say that doesn't mean that Roe should be overruled, but descriptively it does mean that it's not a case that everyone has accepted."

She said among the handful of cases that are considered "super-precedents" are Brown v. Board of Education, the 1954 ruling that outlawed racial segregation in public schools, and Marbury v. Madison, which in 1803 gave courts the authority to strike down laws as unconstitutional.

Klobuchar said that Barrett's views on Roe, her criticism of the legal reasoning behind Chief Justice John Roberts' ruling in favor of the Affordable Care Act and other decisions on gun rights and same-sex marriage were "tracks" as to how Barrett would rule in similar cases.

"I think the American people have to understand that you would be the polar opposite of Justice Ginsburg," Klobuchar said. If confirmed, Barrett would replace the late Justice Ruth Bader Ginsburg. "She and Justice Scalia were friends," Klobuchar said, referring to the late Justice Antonin Scalia, for whom Barrett was a law clerk. "But she never embraced his legal philosophy," Klobuchar said.

President Trump's Supreme Court nominee Judge Amy Coney Barrett testifies during the second day of her Senate Judiciary confirmation hearing on Tuesday. Greg Nash/Pool/Getty Images hide caption

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President Trump's Supreme Court nominee Judge Amy Coney Barrett testifies during the second day of her Senate Judiciary confirmation hearing on Tuesday.

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Updated at 3:23 p.m. ET

Judge Amy Coney Barrett's confirmation to the Supreme Court would, Democrats fear, imperil the Affordable Care Act, which has twice narrowly survived in the high court.

The ACA, which is also known as Obamacare, is scheduled to be argued once again before the Supreme Court a week after the Nov. 3 election. On Tuesday, during the second day of hearings at the Senate Judiciary Committee, Democrats repeatedly pressed Barrett on whether she'd made assurances to anyone about how she would rule on the ACA.

"Absolutely not," she replied. "I was never asked, and if I had been that would have been a short conversation."

The original challenge to the ACA centered on whether the individual mandate, which required most Americans to buy health insurance or pay a penalty, was constitutional. Chief Justice John Roberts, writing for the majority in 2012, ruled the penalty, which is collected by the IRS, constitutes a tax and therefore fell within Congress' purview.

Conservatives criticized that ruling, and in 2017 Barrett, at the time a law professor, wrote that Roberts "pushed the Affordable Care Act beyond its plausible meaning to save the statute."

On Tuesday, Democrats brought up Barrett's critique of Roberts' majority opinion, implying that she opposed the ACA.

"I am not hostile to the ACA," Barrett replied, noting that the current case before the court deals with an entirely different matter altogether: severability, which examines whether a law can stand if part of it is struck down.

"The issue in the case is this doctrine of severability, and that's not something that I have ever talked about with respect to the Affordable Care Act," she said. "Honestly, I haven't written anything about severability that I know of at all."

Indeed, the current case stems from Congress' decision to zero out the penalty for not having insurance and whether the Affordable Care Act has effectively been voided as a result.

Texas argued that the Supreme Court saved the ACA by interpreting the penalty as a tax. Congress' elimination of the tax penalty, the state's lawyers argue, was tantamount to repealing the law — something Congress explicitly did not do. Texas, which is arguing that the court should invalidate the ACA, says the mandate could not be severed from the rest of the law.

Paul Clement, the lawyer who argued on behalf of those challenging the law in the Supreme Court the first time, told NPR's Nina Totenberg that he thinks Texas' argument is a stretch: "It's just hard for me to say that the mandate is central when it doesn't have any teeth," he said.

In his question period Tuesday, Sen. Chris Coons, D-Del., argued that the two cases — the one from 2012 and the one headed for the court next month — are "very similar" and that Barrett's earlier commentary remains relevant.

"The central issue before the court — believe it or not, somehow — will be the constitutionality of the mandate that's in some ways been the linchpin of its being upheld previously," he said.

Democrats set out to make health care central to Barrett's confirmation hearings. Sen. Mazie Hirono of Hawaii charged on NPR's Morning Edition that the ACA case is why Republicans are rushing the nomination through — so that Barrett would be on the court and rule against the health law.

"People are going to be without health care in the middle of a pandemic, no less," Hirono said.

Republican Sen. Ben Sasse of Nebraska accused Democrats on the panel of misrepresenting Barrett's comments on the previous Obamacare ruling and told NPR that focusing on the policy outcome of Barrett's legal argument ends up making "judges and justices into policy advocates and into politicians."

Supreme Court nominee Judge Amy Coney Barrett responds to a question on the second day of her Supreme Court confirmation hearing Tuesday in Washington, D.C. Shawn Thew/Pool/Getty Images hide caption

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Democratic Sen. Dick Durbin of Illinois asked Judge Amy Coney Barrett how she could reconcile her judicial philosophy of originalism with what she called the persistence of racism in the United States.

The pure words of the law and the Constitution, which Barrett says are all that should guide a judge, don't fully capture the true experience of many Americans with the law and law enforcement, Durbin suggested.

The letter of the law calls for everyone to be treated equally, and yet many Americans don't feel they are; Durbin asked Barrett specifically about the police video that depicts this year's killing of George Floyd, who died in the custody of an officer who knelt on his neck despite Floyd's cries for help.

Barrett said the video was "very, very personal" for her and her family, in part because she has two Black children adopted from Haiti, her daughter Vivian and her son John Peter.

When the video of Floyd's killing was released, Barrett's husband and sons were on a camping trip, and Barrett said she watched the video with her two daughters in her bedroom. As they wept together, Barrett said she used the moment to talk about race and racism.

"My children to this point in their lives have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence," Barrett said. "And for Vivian to understand that there would be a risk to her brother or the son she might have one day of that kind of brutality has been an ongoing conversation, and it's a difficult one for us like it is for Americans all over the country."

Durbin then asked Barrett to reflect on the history of racism in this country and the evolving debate over how racism plays a role in today's society. While Barrett acknowledged the existence of racism, she said "making broader diagnoses about the problem" is up to lawmakers and not judges.

"I think it is an entirely uncontroversial and obvious statement, given as we just talked about the George Floyd video, that racism persists in our country," Barrett said. "As to putting my finger on the nature of the problem, whether as you say it's just outright or systemic racism, or how to tackle the issue of making it better, those things are policy questions."

Durbin said he found that hard to believe, given that Barrett interprets the Constitution as it was written, but did not press her on the issue.

"I just don't believe you can be as passionate about originalism and the history behind language that we've had for decades, if not centuries, without having some thought about where we stand today," Durbin said.

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