“The presumption is always in favor of severability,” Barrett said, using the “Jenga” game as a metaphor, a comparison that impressed the top Democrat on the committee, Sen. Dianne Feinstein of California.
Asked if judges should seek to preserve the rest of a law even when one part is invalidated, Barrett said that was “true” — a response that was unlikely to sway Democrats. She later said judges should never seek to “to undermine the policy that Congress enacted.”
With just three weeks before the Nov. 3 election, the future of the Affordable Care Act has been a major focus of Barrett’s hearing, with Democrats arguing that Barrett’s confirmation would all but seal the demise of the health care law. Multiple senators have noted that Barrett has previously criticized Chief Justice John Roberts’ decision to uphold Obamacare.
Republicans addressed the issue directly, too, at the outset of Wednesday’s hearing; it was an acknowledgment that Obamacare was shaping up to be a key issue this week.
“Obamacare is on the ballot,” said Judiciary Committee Chairman Lindsey Graham (R-S.C.), who is facing a surprisingly difficult reelection bid this year. “If you want socialized, single-payer health care, that’s on the ballot.”
Democrats have used the hearing process to spotlight the Trump administration’s legal challenge to the Affordable Care Act, which is set to reach the Supreme Court next month. Oral arguments for the case begin on Nov. 10, and under Senate Republicans’ most recent timeline, Barrett is expected to be confirmed to the high court well before that date.
Barrett emphasized on Tuesday that she was not “on a mission” to go after Obamacare, but Democrats highlighted her past criticisms of court decisions that upheld the 2010 law.
Democrats also pressed Barrett again on whether the president has the authority to unilaterally delay the election. Only Congress has that authority, but Barrett declined to say so explicitly, citing her refusal to engage in legal hypotheticals.
“What troubles me is this: you style yourself an originalist, textualist, factualist, whatever the term is which means you go right to the words,” Sen. Dick Durbin (D-Ill.) said in response, before rephrasing the question.
Wednesday was the final day for senators to question Barrett, who currently serves as a federal judge on the 7th Circuit Court of Appeals. The Judiciary Committee is slated to wrap up the hearings on Thursday, when outside witnesses will testify about Barrett’s qualifications.
“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,” Graham said of Barrett. “A seat at the table is waiting on you.”
Barrett on Tuesday largely shook off Democrats’ efforts to tie her to President Donald Trump, repeatedly insisting that she had no “deal” with the president or anyone at the White House regarding how she would rule on an individual issue.
She won praise from Republicans who said her performance was unflinching amid Democrats’ grilling on issues including health care and abortion. Barrett declined to answer specific questions about how she might rule on issues that could come before the court, citing long-standing tradition for judicial nominees.
On abortion, Barrett declined to say whether she though the landmark 1973 case Roe v. Wade, was correctly decided. She told Sen. Amy Klobuchar (D-Minn.) that she did not consider Roe to be a “super-precedent” because there remains significant opposition to it and efforts to overturn it, but added that doesn’t mean she believes it should be reversed.
Democrats said her response was disqualifying.