tv Part 2 Supreme Court Nominee Amy Coney Barrett Confirmation Hearing - Day 2 CSPAN October 13, 2020 11:35pm-2:25am EDT
listen to the oral arguments live or on-demand at c-span.org/supremecourt. ♪ >> you're watching c-span, your unfiltered view of government. created by america's cable television company as a public service and brought to you today by your television provider. ♪ judge, back today to of amy coney barrett's confirmation hearing. this portion included questions from senators white house, cruise, klobuchar, koons, and holly.
you and i had when we spoke on the telephone. you were kind enough to hear out a presentation that i made and i intend to have some questions in that area. it does not make sense if i have not laid the predicate particularly for our viewers who are watching this. i guess the reason i want to do this is because people who are watching this need to understand that this small hearing room and the little tv box you are looking at, the little screen you are looking at are a little bit like the frame of a puppet theater. if you only look at what is going on in the puppet theater,
you are not going to understand the whole story, you are not going to understand the real dynamic of what is going on here . you are certainly not going to understand forces outside of this room who are pulling sticks and pushing causing the public -- puppet theater to react. first let me say why do i think outside sources are here pulling strings. part of it is behavior. we have colleagues here who nominee, you, this before there was a nominee. unusual. little jobhave the political ram that we have already complained of driving this process through with breakneck speed in the
middle of a pandemic while the senate is closed for safety reasons and while we are doing nothing about the epidemic around us. 180'se some very awkward from colleagues. mr. chairman, you figure in this. our leader said that when it was garland versus gorsuch that of course the american people should have a say in the court's direction. of course, of course, said mitch mcconnell. that is long gone. senator grassley said the american people should not be denied a voice. that is long gone. senator cruz said, you do not do this in an election year. that is long gone. made his famous promise, if an opening comes in the last year of president trump's term, we will wait until
the next election. that is gone, too. of hard to a lot rushin hypocrisy and taking place. my experience around politics is that when you find hypocrisy in the daylight, look for power in the shadows. people may say, what does this matter, it is no big deal. there are some high stakes here we have been talking about on our side. i will tell you three of them right here. wade, over gravelle and obergefell.ses --
withu have a family member an interest in some autonomy over their body under roe v. wade, the ability to have a marriage, have friends mary, have a niece or a daughter or a someone of marry, the same sex, they have a say. if you are one of the millions who depend on the affordable care act, you have a stake. it is not the platform. let's start talking about the affordable care act. here is the president talking about this litigation gearing up this nominee for november 10. said, weitigation he want to terminate healthcare under obamacare. that is the president's statement. not we react to that, do
act as if we are making this stuff up. this is what president trump said. this is what your party platform says. reverse the obamacare cases. senator after senator including in this committee filed briefs saying that the affordable care act should be thrown out by courts. why is it surprising for us to be concerned that you want this nominee to do what you want, nominees to do? a lot of this has to do with money. this is an interesting comparison. of national federation independent businesses until it filed the nfib against the case had its biggest donation ever of $21,000 in the year that it went to work on the affordable care , 10 wealthy donors gave $10
million. somebody deserves a thank you. let's go on to roe v. wade. same thing. same thing. president has said that revolting -- reversing roe v. wade will happen automatically because he is putting pro-life justices on the core of your why don't we take him at his word? the republican party platform says it will reverse roe. why would we not comment and take you at your word? senators here have said i will vote only for nominees who would knowledge that roe v. wade is wrongly decided and they are pledged to vote for this nominee. do the math. that is a simple equation to run. the republican brief in june medical said roe should be
overruled. wenot act surprised when have questions about whether that is what you are up to. world that in the ad you have spared yourself wisely, the susan b. anthony foundation is running advertisements right now seeing you are set to give our pro-life country the court that it deserves. there is the ad with the voiceover. she is set. she is set. roe, obamacare cases and obergefell, gay marriage. same-sex that opposes marriage says in this proceeding, all our issues are at stake. the republican platform wants to reverse obergefell. brief filed in the case said same-sex
relationships do not fall within any constitutional protection. when we say the stakes are high on this is because you have said the stakes are high. you have said that is what you want to do. how are people going about doing it? what is the scheme, here? let me start with this one. in all cases, there is big anonymous money behind various lane of activity. one is through the conduit of the federal society. it is managed by a guy named leonard dileo and it has taken over the selection of judicial nominees. how do we know? because trump has said so over and over again. his white house counsel said no -- said so. we have an anonymously funded group run by this guy named leonard leo.
we have anonymous funders running through something called the judicious crisis network which is run by severino and it foroing pr and campaign ads republican judicial numbering -- nominees. a $70 million donation in the garland-gorsuch contest. they got another donation to support kavanaugh. perhaps the same person spent $35 million to influence the makeup of the united states supreme court. tell me that is good. an array ofou have groups funded by dark money that have a different role. they bring cases to the court. they do not wind their way to the court, they get shoved to the court by legal groups many of which get quickly to the court to get their business done
there. in anen they turn up orchestrated chorus. i have had a chance to have a look at this and i was in a case . the consumer financial protection board case and in 3, 4,ase there were 1, 2, 5, 6 11 filed in every single one of them worse -- was a group fired -- followed by something called donors trusta. it is an identity scrubbing for the right wing. business, itave a does not have a business plan. it does not do anything. it is does an identity scrubber. this group, the bradley foundation, funded 8 out of the 11 briefs. that seems weird when you have amicus briefs coming in little motel is funded by the same
groups but nominally separate in the court. actually attached is to my brief as an appendix. the center for media democracy saw it and did better work. whichent on to say foundations funded the brief writers in that case. here is the bradley foundation for $5.6 million to those groups. here is donors trust, $23 million to those brief writing groups. the grand total across all the groups was $68 million. the groups filing amicus briefs pretending they were different groups. it is not just in the consumer financial protection board case. -- might say, that was his that was just a one off. they had a long trail through the court through other decisions.
did some work about this. here is donors trust and donors capital fund and here is the bradley foundation. they total giving $45 million to four, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 groups. both of the lawyers in the case. funded by donors trust, funded by bradley foundation and janice. this is happening over and over again. the briefs.nd just it goes beyond just the amicus presentations. the federalist society, do you are never this group acting as a conduit and donald trump doing his usual selection -- judicial selection? they're getting money from the same foundation.
$16.7 million. from the bradley foundation, $1.37 million. from the same group of foundations total, $33 million. so you can start to look at to tiend you can start them together. , all of theoups same funders over and over again bringing the cases and providing this orchestrated chorus. fundshe same group also the federalist society over here. the washington post wrote an apose that made leonard leo little hot. he had to do anonymously funded suppression work. guess who jumped in to take over the selection process in this case? severino made the half. once again, it ties right in
together -- made the hop. the center for democracy made more research. here is a memo they published. is bradley foundation reviewing a grant application asking for money for this orchestrated amicus process. what did they say in the recommendation? it is important to orchestrate, their word, not mine, and to --hestrate high-caliber important to orchestrate high-caliber amicus. through previous philanthropic investment in the actual underlying investments. ,radley is funding philanthropic lien investing in, the underlying legal action and lingering money to groups to show up in the orchestrated amicu.of thank you --
that cannot be good. it goes on. he also found this emailed. ans email comes from individual at the bradley foundation and it asks our aiend leonard leo, is there 501(c)(3) nonprofit through which riley could direct any support of the two supreme court amicus projects other than the trust? ? why they wanted to avoid the reliable donors trust -- i don't know why, they wanted to avoid the reliable donors trust, but they did. on his address he writes back, yes, send it to the judicial education project which can allocate the money. guess who works for the judicial education project? kerry severino who also helped select this nominee running the
trunk federal society selection process -- trump. abound.ections in the washington post article, they point out that the judicial crisis networks is on the same hallway and same building of the federalist society and when they send their reporter to talk to somebody at the crisis network, someone from the federal society came down to let them up. this more and like it is not -- this more and more looks like it is not threes games, but the same schemes with the same judges,selecting funding campaigns and showing up in court in these orchestrated flotilla was to tell the judges what to do. on the judicial crisis network,
you have the leonard leo connection. she hopped in to take care for the society. you have a campaign i talked about where they take $70 million contributions. that is a big check to write, $17 million to campaign for supreme court nominees. no idea who that is or what they got for it. you have briefs that she wrote. the republican senator's filed briefs in that case signed by ms. severino. the woman who helped choose this nominee has written briefs for republican senators. do not say the aca is not an issue. the crisis network funds the republican attorneys general association and individual attorneys general. guess who the plaintiffs are in the affordable care act case? republican attorneys general. trump joined them because he did
not want to defend so he is in with the republican attorneys general. here is the crisis networks campaigning for the nominee, writing briefs for senators against the affordable supporting republicans who are and leadings case the selection process for this nominee. here is where they are. mitch mcconnell, senator collins, senator cornyn, senator holden, who is still here? rubio, a huge assortment whoepublican senators severino wrote a brief for against the affordable care act. this is a pretty big deal of
your i have never seen this -- this is a pretty big deal. much dark money and this much influence being used. here is how the washington post sums it up. this is a conservative activist behind a campaign to remake the nation's courts and it is a $250 million dark money operation. of moneyion is a lot to spend if you are not getting anything for it. that raises the question, what are they getting? well, i showed the slide earlier on the affordable care act and on obergefell and on roe v. wade. that is where they lost. but with another judge, that could change. that is where the contest is. that is where the republican party platform tells us to look at how they want judges to rule to reverse roe, the obamacare cases, and to reverse obergefell
and take away gay marriage. that is their stated objective and plan. why not take them at their word? there is another piece of it. and that is, not as what ahead of us, what is behind us -- not is what is ahead of us, but what is behind us. what is behind us is now 80 cases, mr. chairman, 80 cases under chief justice roberts that have these characteristics. one, they were decided 5-4 by a bare majority. two, the 5-4 majority was partisan in the sense that not one democratic appointee joined the five. i refer to that group as the roberts five. there has been a steady roberts five that has delivered now 80 of these decisions. the last characteristic is that there is an identifiable republican donor interest in those cases and in every single
case that donor interest won. it was an 80-0, 5-4 partisan route, ransacking. and it is important to look at where those cases went because they are not about big public issues like getting rid of the affordable care act, undoing roe v. wade and undoing same-sex marriage. they are about power. if you look at those decisions, they fall into four categories over and over again. unlimited and dark money in politics. citizens united is the famous one, but its continued stance with mccutcheon and we have one coming up now. money in politics, never protecting against dark money in politics despite the fact that they said it would be
transparent. and who wins when you allow unlimited dark money in politics? a very small group. the ones who have unlimited money to spend and a motive to spend it in politics. they win, everyone else loses. if you are looking at who might be behind this, let's talk about people with unlimited money to spend and a motive to do it. we will see how that goes. knock the civil jury down. it is in the constitution, in the bill of rights, in our declaration of independence. but it is annoying to big corporate powers. because you can swagger your way as a big corporate power through congress, you can tell the president you put money into to allege what to do, he will put your stooges of the epa, it is all great. until you get to the civil jury. they have an obligation as you know, judge merrick.
i have an obligation to be fair to both parties irrespective of their size. you cannot bribe them. it is a crime to tamper with a jury. it is standard practice to tamper with congress. they make decisions based on the law. if you are used to being the boss and swaggering your way around the political side, you don't want to be answerable before a jury. one after another, these 80-4 decisions have knocked down the civil jury, a great american institution. the first was unlimited dark money, the second was demean and diminish the civil jury, third was weaken regulatory agencies. a lot of this money i am convinced is colder money -- polluter money. polluter.ndustry is a the fossil fuel industry is a
polluter. who else would be putting buckets of money into this? if you are a big polluter, what do you want? you want weak regulatory agencies, ones that you can boxed up and run to congress and get your friends to fix things for you in congress. over and over and over again, these decisions are targeted at regulatory agencies to weaken their independence and weaken their strength and if you are a big polluter and a weak regulatory agency is a good idea of a good day. the last thing is politics and voting. why on earth the court made the decision, a factual decision, not something courts are ordinarily supposed to make, as i understand it, judge barrett. the factual decision that nobody needed to worry about minority voters in states being disconnected against or that legislators would try to
knockback their ability to vote. these five made that finding in shelby county against bipartisan legislation from both houses of congress hugely past on the factual record. -- on no factual record. they just decided. on no record with no basis because it got them the results that we then saw. what followed? state after state passed voter suppression laws. one so badly targeting african-americans in the two courts that it was surgically tailored to get after minority voters. and gerrymandering, the other great control. gerrymandering, where you go into a state like the red map project did like in ohio and pennsylvania and you pack democrats so tightly into a few districts that all the others become republican majority
districts in those states, you send a delegation to congress that has a huge majority of republican members, like 13-5 as i recall, in a state where the five, the party of the five actually won the popular vote. you have said a delegation to congress that is out of step with the popular vote of that state and court after court figured out how to solve that and the supreme court said no, we are not going to take an interest in that question. in all these areas where it is about political power or big special interests and people want to fund campaigns and people want to get their way through politics without actually showing up, doing it behind owners trust and other groups, doing it through these schemes, over and over and over again, you see the same thing. 80 decisions, judge barrett. 80 decisions, an 80-0 sweep.
, the issue is bias and discrimination. if you are making a bias case as a prior lawyer, lindsey graham was held in a trial of your -- lindsey graham is a trial lawyer. if they wanted to make a case and they could show an 80-0 andern, that is admissible i would love to make that argument to the jury. i would be hard-pressed to be the lawyer seeing no, 80-0 is a bunch of flukes. all thisall partisan, way. something is not right around the court. and dark money has a lot to do with it. special interests have a lot to do with it. donors trust, weber is hiding behind owners trust has a lot to -- whoeverr whoever
is hiding behind donors trust has a lot to do with it. barrett forudge listening to me a second time. i think this gives you a chance up anou and i to tee interesting conversation tomorrow. >> thank you. senator cruz? >> mr. chairman, can i put three letters in unanimously? >> thank you. >> thank you, mr. chairman. judge barrett, welcome. congratulations on being nominated. enduring thens on confirmation proceedings. i think it is a good thing we have made it through what i guess you would call the top of the lineup of questioning. some of the smartest and most effective questioners on the democratic side, i think it
speaks volumes that collectively they have had very few questions for it -- for you and virtually none calling into question your credentials which are impeccable. , and what i think has been an extraordinary life you have led. source ofd be the great satisfaction in terms of the scholarly record and judicial records you have spent a lifetime building. i want to start by asking you a question. amendment airst protection of religious liberty, why is that important? judge barrett: i think it is broadly viewed that the framers protected the free exercise of religion because, for reasons we
all know from history of persecuted religious minorities fleeing to the united states that in enshrining that protection, it was one of the bill of rights because it was considered fundamental. >> why does that matter to americans? what difference does that make in anybody's life? judge barrett: i think all of the bill of rights, each one of them is important because we value the constitution, including religious liberty. >> how about the free-speech protections? why are those important? judge barrett: so that minority viewpoints cannot be squashed, so that it is not just the majority that can speak popular views. you do not need the first amendment as something that everybody wants to hear, you needed when people are trying to silence you. >> the second amendment, why is the right to keep and bear arms important? judge barrett: we talked about
heller earlier this morning and what heller tells us is that the second edit, protecting individual rights to bear arms for self-defense. >> i think all those rights and the entire bill of rights is incredibly important to americans. i also think what is really striking about this hearing that and also yesterday is senate democrats are not defending what i think is really a radical agenda that they have when it comes to the bill of rights. the topics they are discussing today have little bearing to the rights that are really at issue and in jeopardy at the supreme court. let's take a few minutes to go through them. first of all, we have had some discussion of roe v. wade.
have declined to give an opinion on a matter that might be pending before the court. that is the same answer that every single sitting justice has given when he or she was sitting in the same chair you are in. it is mandated by the judicial canons of ethics. whether one is a nominee of the democratic president will republican president, that has been the answer given to this committee for decades. interestingt is that our democratic colleagues do not discuss what would actually happen if there came a day in which roe v. wade were overruled which is namely that it would not suddenly become the case that abortion was illegal, but rather it would revert to the status of the law as it has been for nearly 200 years of our nation's history which is that the question of the permissibility of abortion is a question for elected
legislatures at the state level and at the federal level. it is difficult to dispute that there are a great many jurisdictions including jurisdictions like california at roe york to leave it v. wade were not the law of the land, the elected legislatures would almost certainly continue unrestricted access to abortion with virtually no limitations. what i find interesting though is that our democratic colleague do not discuss what is really of the mostposition liberal justices in the supreme that nohich is restrictions whatsoever are permissible when it comes to abortion. yesterday one of the democratic senators made reference to the case gonzalez versus carhart. i'm quite familiar with that case and i represented texas and
a number of other states in that case. that case concerned the constitutionality of the federal ban on partial-birth abortion. that was legislation that passed congress and was signed into law that made the really was and practice of partial-birth abortion illegal. the overruling majority of americans leave partial-birth abortion should be prohibited, even those who identify as pro-choice, if significant percentage of americans do not want to see that gruesome practice allowed -- a significant percentage. 5-4 upheld the ban on partial-birth abortion. their means there were four justices ready to strike it down, ready to conclude that you cannot than partial-birth abortion, you cannot than late-term abortion. --er researchers question other restrictions and question around consent laws, none of our
democratic colleagues want to talk about the justices they want to see on the court would strike down every single reasonable restriction on unlimited abortion on demand that the vast majority of americans support. how about free speech? heard a bit about free speech. the senator from rhode island just gave a long presentation complete with lots of charts. i will say a couple of things on free speech. first of all, our democratic colleagues, when they address andissue of dark money campaign-finance contributions, are often deeply hypocritical and do not address the actual facts that exist. here are some facts. of the top 20 organizations spending money for political
speech in 2016, 14 of them gave virtually all of their money to democrats and another three split their money evenly. only three of the top 20 gave to republicans. what did that mean in practice? 20 super pace top donors contributed $422 million to democrats and $189 million to republicans. those who give these impassioned speeches against dark money do not mention that their side is funded by dark money with a massive differential. the senator from rhode island talked about big corporate without acknowledging that the contributions from the fortune 500 in this presidential election overwhelmingly favor joe biden and the democrats. without acknowledging that the contributions from wall street overwhelmingly favor joe biden and the democrats. it is an awful lot of rhetoric
about power. but it gets even more interesting when you look at supreme court nominations. an attack on the federalist society, a group i have been a member of for over 25 years. it is a group that brings conservatives, rotarians together to have robust libertarians, to have discussions about the law. what is interesting is nowhere in his remarks was any reference to a company called arabella advisors which is a for-profit entity that manages nonprofits theuding the 1630 fund and new venture fund. those sound like confusing names. according to the wall street 2018 those 2017 and $987.5 millioned
in revenue. that is nearly $1 billion. we heard a lot of thundering indignation at what was described as $250 million of expenditures. in this case, you have $1 billion. the senator said with that much money, much of which is dark money that we do not know he contributed it to ask, what are they getting for it. by the way, one of the things they are getting is a group called demand justice, a project of those entities, spent $5 million opposing justice launched ahas just buyen-figure add by -- ad- opposing your confirmation. all of the great umbrage about the corporate interest for spending dark money is widely in
factsct with the actual of the corporate interests spending dark money are funding the democrats by a factor of 3-1 or greater. a fact that never seems to be acknowledged. , what was citizens united about? most people at home have heard about citizens united, they know it makes democrats very upset. but they don't know what the case is about. concernednited whether or not it was legal to make a movie criticizing a politician, specifically, citizens united is a small nonprofit organization based in d.c. that made a movie that was critical of clinton. the justice department took a
position that it could fine a department for during to make a movie critical of a politician. the case went to the supreme court. at the oral argument, there was a moment that was truly chilling. the justiceasked department, is it your position that the federal government can ban books? and the obama justice department responded, yes, yes it is our position that if the books criticize a political candidate, a politician, the federal government can ban books. i'm concerned, that is a terrifying view of the first amendment. decided 5-4.ed was by a narrow majority, the supreme court concluded the first amendment did not allow the federal government to you for -- to punish
making a movie critical of a politician. likewise, that the federal government could not ban books. four justices dissented. four justices are willing to say the federal government can ban movies and presumably books as well. when hillary clinton was running for president, she explicitly promised every justice she nominated to the court would pledge to overturn citizens united. by the way, hillary clinton said she would demand of her nominees something you have rightly said this administration is not demanding a view which is a commitment on any case as to how you will rule. democrats have shown no compunction in expecting their nominee to make a promise, here is how i am going to vote on a pending case, judicial ethics be damped --
how about the second amendment? we have heard some reference to the heller decision. the senator from connecticut yesterday talked about reasonable gun control and gun safety provisions. that of course was not what was at stake in the heller decision. number one, the majority justice in heller, scalia's opinion, acknowledges reasonable restrictions, things like prohibitions on felons in possession, are permissible. likewise acknowledging restrictions that pretty riveting -- that prohibiting criminals from having firearms is permissible under the second amendment. -- the voteuch more
in heller was 5-4. the majority struck down the district of columbia's total prohibitions on owning an operative firearm in the district of columbia. the argument of the four dissenters was not what our democratic colleagues talk about here. it was not some reasonable gun control provisions r.o.k.. that was not the argument of the dissenters. that question we can have a reasonable debate on. that was not what was at issue in heller. the position of the four the secondwas that amendment does not provide for any individual right to keep and bear arms whatsoever, but merely for a militia, a nonexistent right. four justices would have ruled that way.
one vote away. the consequences of the court concluding that there is no individual right under the first amendment would mean you and i and every american watching this would lose your second amendment right. it would mean the federal government, the state government, the city could ban guns entirely, could make it a criminal offense for anyone of us to own a firearm, and no individual would have any judicially cognizable right to challenge that. that is a radical reading of the constitution. that is effectively erasing the second amendment from the bill of rights. clinton likewise promised in 2016 that every justice she nominated would commit to voting to overturn heller. they were big on litmus tests. and joe biden, although he refuses to answer just about anything about whether or not he will pack the court, he did
tell the american people the voters do not deserve to know whether he is going to pack the court. of disrespectent and contempt for the voters, unusual in our political process. from the second amendment being erased from the bill of rights. none of our democratic colleagues admit that that is their agenda yet those are the justices that democratic presidential nominees are promising they will appoint, justices who will take away your right to criticize politicians, who will allow censorship, who will allow movies and books to be banned, who will erase the second amendment from the bill of rights. and how about religious liberty?
religious liberty is an issue near and dear to a great many of us. the right of every american to live according to your faith come according to your conscience, whatever that faith may be. -- faith come according to your conscience, whatever that may be. religious liberty is about diversity. respecting that whatever your tradition might be, the government will not trample on it. andgious liberty cases over over again have been decided 5-4. the case of van norton versus has to do with a 10 commitments monument in texas. toatheist filed a lawsuit tear down the 10 commandments. it went to the supreme court. it was decided 5-4. four justices were willing to say tear down that monument because you cannot gaze on the
image of the 10 commandments on public land. another case, the mojave desert veterans memorial. tos is the memorial erected the men and women who gave their lives in world war i. cross,e white latin simple and bear in the middle of the desert. i have been there. the clu five a lawsuit saying you cannot gaze on the image -- the aclu filed a lawsuit saying you cannot gaze on the image of a cross. they one in the ninth circuit court of appeals. -- won in the ninth circuit court of appeals. it to be court ordered covered by a burlap sack. when it went to the supreme court, i represented 3 million veterans pro bono, for free, defending that veterans memorial. we 15-4.
-- won 5-4. there were four justices prepared to say tear down the veterans memorial, and under the reasoning they put forth, they were not far away from saying bring out the chisels and remove the crosses and the stars of david on the tombstones of the men and women who gave their lives at arlington cemetery defending this nation. that is a radical view, and we are one vote away. contrary to the text of the first amendment, to the understanding of the first amendment, when we argue the 10 commandments case in the u.s. supreme court. the 10 we argued commandments case in the u.s. supreme court, there was more than a little irony. do you know how many times the image of the 10 commitments
appears in the courtroom of the supreme court? the answer to that is 43. there are two images of the 10 commitments carved on the wooden doors as you walk out of the courtroom. you will soon be looking at them. there are 40 images of the 10 commandments on the bronze gates on both sides of the courtroom. -- and, judgeett barrett, at the bench, above your shoulder, there will be a of greatu know well lawgivers. one of them is moses holding the 10 commandments, the text of which is legible in hebrew as he ,ooks down upon the justices four willing to say in effect bring out the sandblaster's because we must remove god from the public square. that is a profound threat to our religious liberty and i would note that it does not just extend to public acknowledgments.
it also extends to religious liberty. poorittle sisters of the are a catholic convent of nuns who take oath's of poverty, who devote their lives to caring for the sick, the needy, the elderly. the obama administration litigated against the little sisters of the poor, seeking to fine them into order to force them pay for pay-- for them to for abortion inducing drugs. the supreme court decided the hobby lobby case and other cases. routinely denounced by senate democrats, the hobby lobby case concluded the government cannot permissibly force a christian business to violate their faith. it reflected the religious
liberty traditions of our country that you can live according to your faith without the government trampling on it. do you know what this body did? senaterry to say democrats introduced legislation to got the religious freedom restoration act. when it passed this body, it passed with an overwhelming bipartisan majority. senate democrats, including chuck schumer and joe biden and ted kennedy, all voted for the religious freedom restoration act. democratic president bill clinton signed the religious freedom restoration act. yet in the wake of the hobby lobby decision, this body voted on legislation to just gut their protections for religious liberty, and i am sorry to say every single senate democrat voted to do so. not a single 1 -- 0 -- would defend religious liberty. joe biden has already pledged if he is elected he
plans to attack the little sisters of the poor. the press like to talk about pope francis. on some issues, pope francis has been vocal. when it comes to the environment, when it comes to issues concerning immigration, the pope has been vocal and issues our democratic colleagues like and agree with and are happy to amplify those views. somehow missing from that amplification is acknowledgment that when the pope came to the united states in washington he went and visited the little sisters of the poor. here in d.c. in d.c. andhe home the vatican explained he did so because he wanted to highlight their cause, that the federal government should not be persecuting nuns for living according to their faith. that is what is at stake in these nominations. and you will not hear any of that from the senate democrats on this committee.
that is why their base is so angry at your nomination, judge barrett, because they do not believe you are going to join the radical efforts to erase those fundamental rights from the bill of rights. i believe that issue, preserving the constitution, preserving the bill of rights, our fundamental liberties, are the most important issue facing the country in the november elections. and i think for those of us who rights, we rates -- should take solace in the fact that not a single democrat is willing even to acknowledge the radical sweep of their agenda, much less defend it. they know it is wildly unpopular, and right at the heart of this is a decision many
democrats have made to abandon democracy. policies like obamacare, like health care, most policies under our constitutional system are meant to be decided democratically, by elected legislatures. why? so they can be accountable to the people. so if voters disagree, they can throw the bums out. but too many democrats have decided today that democracy is too complicated. it is too hard to actually convince your fellow americans of the merits of your position. it is much easier just to give it to the courts. find five lawyers in black robes and let them decree the policy outcome you want, which makes your radical base happy, presumably makes the millions if not billions in dark money being spent for democrats happy, without actually having to justify it to the american
people. barrett, i will not ask you to respond to any of that. but i do want to shift to a different topic. youh is a bit more about personally, your background. judge barrett, do you speak any foreign languages? judge barrett: once upon a time, i could speak french, but i have fallen woefully out of practice, so please do not ask me to do that now. sen. graham: you can be assured of that -- -- sen. cruz: you can be assured of that. i had two years of high school french and i am sure yours is better than mine. do you play any instruments? judge barrett: the piano. sen. cruz: how long have you played the pno? -- the piano? judge barrett: i grew up playing pi pno for 10 years --the
ano for 10 years. sen. cruz: do the kids do piano lessons? judge barrett: they do. some have gotten so busy that they have stopped, but the younger children do. sen. cruz: our girls are nine and 12 and they both the lessons. in our household, it is less than voluntary. judge barrett: [laughter] -- sen. cruz: one of the things heidi and i found was that distance learning was hard with just two children. for you and your husband, you have seven kids. how did you all manage through the lockdowns and distance learning? what was that like in the barrett household? judge barrett: it was a challenging time, as it was for every american. our oldest daughter, emma, who
is in college, moved home. she is at notre dame. it closed. emma can manage her own e-lear agedand our high school daughter, vivian, could too. it was quite challenging, i assure you. sen. cruz: one part of your story that i find particularly isarkable and that i admire the decision you made to adopt two children. yourntered -- you and husband had five biological children and you adopted two more. both of your adopted children are from haiti. haiti is a country that has some of the most crushing poverty in the world. my brother-in-law is a missionary in haiti. heidi and the girls just got back from haiti a couple weeks ago. i am curious if you would share with this committee and with the
american people what led you and your husband to make the decision to adopt? i think it is one of the most loving and compassionate any family can make -- compassionate decisions in the family can make. judge barrett: when jessie and i were engaged, we met another couple who had adopted. in this instance, a child with special needs. we met a a couple who adopted children internationally. we decided we wanted to do that ourselves. we imagine initially that we would have whatever biological kids we decided to have and then adopt that the end, but after we had our first daughter, we thought, why wait? i was expecting tess when we got vivian. we call them our fraternal twins. they are in the same grade. and it has enriched our family
immeasurably. vivian, at that point we made the decision we wanted to adopt again. several years later, john peter entered our family. sen. cruz: your children have been wonderfully well behaved. i think you are an amazing role model for little girls. what advice would you live little girls -- would you give little girls? sayingarrett: what i am before my father told me boyspelling bee, anything can do, girls can do better. sen. cruz: senator klobuchar. sen. klobuchar: since i always follow senator cruz, i want to make one thing clear. joe biden is catholic and is a man of faith.
i want to turn to something else, and that is that we need a recess in my mind. atneed to get the people home a reality check that this is not normal. 7 million people have gotten this virus. 214,000 americans have died. for people watching at home and wondering what we are all doing in this room right now, and maybe you are home because you lost a job or have your kids crawling all over your couch right now, maybe you are trying to teach your first grader how or maybe youhool, have a small business that you had to close down or is struggling. we should be doing something else right now. we should not be doing this. we should be passing coronavirus relief like the house just did, which was a significant bill
that would have been a big help, and i think people have to know that right now. whether you are a democrat, independent, or republican, and that is why i started out yesterday by telling people that they need to vote. number two, some of my colleagues throughout this hearing on the others have been kind of portraying the job that is before us on as some kind of ivory tower exercise. what of my friends related that you would be dealing with the dormant commerce clause. that might be true, but we also know this is the highest court in the land and the decisions of this court have a real impact on people. i appreciate that you said you did not want to be a queen. i would not being queen around here, truth be known. queenf a benevolent making decisions, so we could get things done, but you said
you would not let your views influence you and the like, but the truth is supreme court rulings rule people's lives. they decide if people can get married, what schools they go to, if they can have access to contraception. all of these things matter. i want to make that clear. -- andthird reset here the third reset here i think we need to have is that this hearing is not normal. it is a sham. it is a rush to put in a justice. the last time we had a vacancy so close to an alexion was when abraham lincoln -- to an election was when abraham like and was president and he made the wise decision to wait until after the election. the last time we lost a justice so close to an election. that is what he did. today, we are to anyone days from the election.
millions of people have already cast ballots. i go to the words of senator mcconnell last time we had a situation in an election year. he said, the american people should have a voice in the selection of the next supreme court justice. therefore, the vacancy should not be filled until we have a new president. so many of you have embraced, or at least you did a few years ago, and that is that the people choose the president and then the president nominates the justice. so why is this happening? well, that is a good question. president, is the one who decided to a supreme court nomination in the middle op a supreme pl court nomination in the middle
of an election. let's see what he said about the supreme court. one of president trump's campaign promises in 2015 was that his judicial appointments will do the right thing on obamacare. you can see it right here. just one dayjudge, after you were nominated, like a few weeks ago, he said, also on twitter, that it would be a big win if the supreme court strikes down the health law. so, judge, my first question. do you think we should take the president at his word when he says the nominee will do the right thing at overturn the affordable care act? judge barrett: senator klobuchar, i cannot speak to what the president has said on twitter. he has not said any of that to me. what i can tell you, as i told your colleagues earlier today,
is that no one has solicited from me any commitment in the case or even brought up a commitment in the case. i am committed to judicial independence from political pressure, so whatever party platforms may be or campaign promises may be, the reason judges have life tenure is to insulate them from those pressures. i take my oath seriously to follow the law. you know, i cannot recommit norwood ike -- i cannot pre-commit nor what i precommit to deciding a case in a particular way. klobuchar: it makes it even more important for us to consider where you might be. have not said how you would rule, but you have directly criticized justice roberts in an article in my own
state in one of the minnesota law school journals in 2017, the same year you became a judge. when roberts writes the opinion to uphold the affordable care act, you said he "pushed the beyond its plausible meaning to say the statute." is that correct? judge barrett: i want to clarify. is this the constitutional commentary publication you and i discussed? sen. klobuchar: it is. judge barrett: i just wanted to be sure. sen. klobuchar: did you as that did you say that? judge barrett: you said i criticized chief justice roberts. i do not attack people, just ideas. it was designed to make a comment about his reasoning in that case, which is consistent
with the way the majority opinion characterized that, as the least plausible reading of the statute. sen. klobuchar: you did not agree with the reasoning in the case that upheld the affordable care act. in burwell or sibelius? sen. klobuchar: sibelius. judge barrett: what i said was that the interpretation that the majority adopted construing the mandate to be attacks rather -- to be a taxc rather than a mandate -- to be a tax rather than a mandate was a less plausible reading. sen. klobuchar: you acknowledge that the result of people being able to keep their subsidies under the affordable care act was -- would help
millions of americans, yet you praise the dissent by justice scalia, saying the dissent had the better of the legal argument, correct? judge barrett: of ing an academt you can speak for yourself and is different from the judicial making -- decision-making process. it is difficult to say how i would have decided that case if i had to go through the whole process of judicial decision-making i was describing this morning. now, having been a judge for three years, i can say i appreciate greatly the distinction between academic writing and judicial decision-making, but that a judge might look an academic and say, easy for you to say,
because you are not on a multimember court, constrained by starry decisiveness. you do not have real parties in front of you. it is a different process. sen. klobuchar: of you that one interestingly because you are commenting on the public-policy results, which you and my colleagues on the republican side have said it should not be public-policy. you said that is ok, but you were clear on the legal outcome in terms of your view of whose side you were on. you are on scully's side, the side to not uphold the affordable care act. the side toside, not uphold the affordable care act. because ofesting this kind of dichotomy they are trying to make between policy and legal. my view is that legal decisions affect policy. i am looking at people in my state that will deal with this
if the affordable care act is struck down. elijah from st. paul, who was , is nowh cerebral palsy 16 and a proud boy scout. casey has chronic kidney failure and needs a transplant. without the aca, he would not get that. or a woman from st. paul whose daughter has ms. has a 21-year-old son with autism and needs her children to be able to stay on her insurance until they are 26. melanie, senior treated for access cancer, who needs to the affordable care act. my point is these are real-world situations. i get that you're not saying how you would rule on these cases, so what does that leave us with here to try to figure what kind
of judge he would be? i was thinking last night, when i was growing up, we would go to northern minnesota and we did not have a cabin, but we had friends that did, and we would go on these walks in the woods with my mom. and she loved to show all the tracks on that path, whether they were deer tracks -- she would always figure out what they were -- elk, or maybe bear, and we would follow these tracks. he would always think, is there going to be a deer around the corner? -- you would always think, is there going to be a deer around the corner? there rarely was one, but we would follow these tracks. as i look at your record, i keep following the tracks. that is what i have to do. this is what i see. oneconsider justice scalia, of the most conservative e historyin th of the supreme court, as your
mentor. you criticized judge roberts upholding the affordable care act. even if you do not criticize him personally, you criticized the reasoning. you said in another case about the aca that you like the legal reasoning. justice scalia had the better legal argument. you have signed your name to a public statement featured in an called forad, that an end to what it called the barbaric legacy of roe v. wade, which ran on the anniversary of the 1973 supreme court decision. you disagreed with long-standing precedent on gun safety, which said that felons should not be able to get guns, something that was pretty important to me when i had my own job in law enforcement.
this was something senator durbin asked you about. in agree with the dissent the marriage equality case, hodgesell -- oberg of lb -- oberg fell behind his, that it was not the place of the people couldde, lobby and state legislatures. all of this takes me to one point as i follow these tracks down that path. it takes me to the point where i believe and i think the american people have to understand that you would be the polar opposite of justice ginsburg. she and justice scalia were friends, yeah, but she never embraced his legal philosophy. so that is what concerns me. i want to turn to an area where i think justice ginsburg, whose seat we are considering you for, was truly a hero. that was the area of voting
rights. and that was the area of elections. i think that -- what did the president say here? he said, september 23, i think the election, will end up in the supreme court, and i think it is very important that we have nine justices. clearer wee how much can be. as i said yesterday, i do not for a minute concede that this election will end up in the supreme court because people are voting in droves, but that is what is on the mind of the man who nominated you. 29, i thinkeptember i am counting on them, the court, to look at the ballots. in i know you said earlier questions from senator lakey
that you are not going to commit -- from senator lakey that you are not going to commit on whether or not you will recuse yourself in any kind of alexion -- election case, but i want to point out that people are voting right now. they are voting as i said in droves. statesknow how many where people are voting now? judge barrett: i do not know. more than 40r: states where people are voting now. something like 9 million votes have been cast. faithful to it is our democratic principles to fulfill -- to fill a supreme court vacancy this close to an election, when people are still voting? judge barrett: senator klobuchar, i think that is a question for the political branches.
sen. klobuchar: ok. it is your right to answer in that way. beyond this immediate election, i want to turn to the supreme court's critical role when it comes to the right to vote, this -- where justice ginsburg was such a champion. senator durbin went over your dissent at length in kanter v drew aere you distinction between individual rights and civic rights. you wrote that, historically, felons should be disqualified from exercising certain rights, like the right to vote and to serve on juries. is this next line, where you said "these rights belong only to virtuous citizens." what does that mean? judge barrett: i would need to look at the article to clarify.
as i am sitting here, i do not think i said felons should lose voting rights. i think what i was talking about was the 14th amendment. sen. klobuchar: it was in an article, to be clear -- it was not an article, to be clear. this was your dissent. disqualified from certain rights. you said "these rights belong only to virtuous citizens." i am trying to understand what that means. judge barrett: the argument in the case, those who were challenging heller and arguing on the side of the government in the kanter case is that the second amendment is a civic right. that is how the supreme court itself framed the debate, as a distinction between civic rights and individual rights, with voting being a civic right.
in the literature, the historical literature, which was at play in that case -- sen. klobuchar: how would you define the word virtuous? it does not appear in the constitution. we are living in a time where a lot of people are having their voting rights taken away, so what is virtuous? judge barrett: senator, i want to be clear that that is not, in the opinion, designed to denigrate the right to vote, which is fundamental. the distinction between civic and individual rights is one that is present in the court's decision and it has to do with a jurisprudential view. thatrtainly does not mean i think that anybody gets a measure of virtue, whether they are good or not, whether they are led to vote. sen. klobuchar: in justice ginsburg's dissent in shelby,
where the court struck down a provision of the voting rights act, she described the right to vote as a fundamental right in our democratic system. i assume you agree. you agree with the concept that it is a fundamental right. judge barrett: as i just said. repeatedly said. she also said: that the constitution uses the words right to vote in five places, in several amendments. each of these amendments contains the same broad empowerment of congress to enact appropriate legislation to enforce the protected rights. the implication is unmistakable. under our constitutional structure, congress holds the lead rein in making the right to vote equally real for all citizens. do you agree with justice ginsburg's conclusion that congress is empowered to protect the right to vote?
judge barrett: i cannot express a view on that, as i have said, because it would be inconsistent with the judicial role. sen. klobuchar: you go out of your way in the case that dick durbin was discussing to make this distinction between voting rights and gun rights, but now you will not say whether or not you agree with ginsburg, and so my view is, again, following those tracks, that you are most likely with the majority, but i know you are not going to answer this. what i do want you to know is this, and this is where it gets interesting. what justice ginsburg predicted and that dissent -- in that dissent. according to the brennan center, since that case, 20 states withdrew parts of the protections from the voting rights act. over 20 states have made more restrictive laws.
you thatnot suggest to justice ginsburg had the better of the argument when she suggested that throwing out preclearance when it has continued to work is like throwing away your umbrella in the rainstorm because you are not getting wet? do you think that that is true? it seems to me that the proof is in the pudding. basically, this rainstorm that she said would come has come with all the states, including a number of them that my haveagues represent, enacted stricter laws. has it happened? judge barrett: i want to clarify, you said i was answering senator durbin's question about the second amendment but refusing to answer yours. i want to clarify that i wrote kanter versus barr, but since i did not write shelby, i cannot talk about it.
anything i have written about or talked about, i would be happy to answer your question. sen. klobuchar: but again, it seems to me you went out of your way in that case. this is a case that is so real for so many people right now. while you can say it is a fundamental right, the issue is that this case and the voting rights act are so key. let me say why. we are talking about the entire foundation of our democracy here. for centuries, americans have fought and died to protect the right to vote. and so what matters is not just what you say about it being fundamental, it is what you do. states like south carolina, texas, north carolina, louisiana, tennessee make it harder for people to vote and it is a real thing before the supreme court. in fact, in may, when voters in wisconsin were standing in line in the middle of a pandemic in homemade masks and garbage bags just to exercise their right to
vote, 70 of them got covid. we did not know enough about it back then because the president had not told us what he knew. it ends up at the supreme court. what does justice ginsburg do? when the republican appointed majority on the court ruled that voters in wisconsin could not have more time to get their ballots in during the pandemic, she called them out in her dissent, in her blueprint for the future, and she said the majority opinion boggles the mind. what boggles my mind? the u.s. supreme court reinstated the south carolina report -- requirement that mail-in ballots must have witness signatures in the middle of a pandemic. you have to go and get a witness. in texas, republicans have argued that the pandemic was not a good enough reason to let people under age 65 vote by mail, despite the fact that over
42,000 americans under 65 have died from covid, and the governor is right now forcing that state to have only one ballot box per county, including in harris county, where there are 4.7 million people. for those of you that thought a judge took care of it a few days ago, he did, but then yesterday, three trump appointed judges came in and reversed that, so we are back to one ballot box for people to drop their ballots off in a county of 4.7 million people. in tennessee, republicans have tried to prevent ballot drop boxes. we have the secretary of state as one of our witnesses in our rules committee hearing and they argued that covid-19 is not a valid tax used to vote by mail. in north carolina, the supreme court struck down a core component of the voting rights act. what happened? states like north carolina passed laws that were so egregious to make it harder to
vote that the fourth circuit struck down their law and noted it targeted african-american with almost surgical precision. that is why not having justice ginsburg on the court right now is so frightening to so many americans out there. and that is why we are asking you these questions about voting. so let me turn to another election question -- gerrymandering. in 2015, justice pennsburg wrote the majority opinion in -- justice ginsburg wrote the majority opinion in a case holding that it was constitutional for the people of arizona to amend the state constitution to establish an independent redistricting commission. because of this case and justice ginsburg's opinion, many argue now that arizona has fairer electoral maps. the decision was 5-4. here is your example.
now justice ginsburg and justice kennedy are no longer on the court. my question is this. most state legislatures abide by their own state's constitution when exercising their authority under the elections clause? judge barrett: senator klobuchar, that would be eliciting an opinion from me about whether i agreed with the decision. is itlobuchar: permissible? judge barrett: again, you are asking me for a view in that case. justice ginsburg herself gave the most famous articulation of the principle that constrains me from doing so. i cannot express my view on how i would decide. klobuchar:, last week, contractor started recruiting pull watchers with special
forces experience to protect polling locations in my state. this was clear voter intimidation. similar efforts are going on around the country, solicited by president's false claims of massive voter fraud, something that many republican leaders, including michael steele, former head of the party, tom ridge, governor kasich, sitting senator romney, have made very clear is not true. so as a result of his claims, people are trying to get pull watchers, special forces people to go to the polls. under federal law, is it illegal to intimidate voters at the polls? judge barrett: senator klobuchar, i cannot characterize the hypo coded goal -- the
hypothetical situation and cannot apply the law to a hypothetical set of facts. case only consider the after fully engaging the precedent and writing an opinion. --ator klobuchar outlawsklobuchar: a law intimidation and coercion for the purposes of prohibiting the right to vote. this has been on the books for decades. do you think a reasonable person would be intimidated by the presence of armed civilian groups at the polls? elicitingett: that is -- i am not sure to say whether that is eliciting a legal opinion or just an opinion as a citizen, but is not something that is appropriate for me to comment on. sen. klobuchar: here is one.
the selection of electoral college electors. that dictates laws how electors are selected. court ruled supreme that the minnesota state legislature could not change election rules unilaterally. do you agree that the unanimous opinion in the case, which has never been questioned, is settled law? judge barrett: i will say two things about that. i was not aware of that case, so you have taught me something, but i cannot comment on the precedent, give a thumbs up or down. sen. klobuchar: why don't we end with precedent? that is a good way to end. your 2013 texas law review article that you tend to agree with the view that when a justice's understanding of the
constitution conflicts with caselaw it is "more legitimate for her to follow her preferred view." i will run through a few examples. brown v. board of education. that holds that the 14th amendment prohibits states from segregating schools on the basis of race. is that precedent? well, that is precedent, and as i think i said in that same article, it is super precedent. people consider it to be on that very small list of things that are so agreed upon by everyone, calls for its overruling do not exist. sen. klobuchar: you separately acknowledged that in planned parenthood v kc, the supreme opinion talked in roe v.interest wade as super precedent.
is it? judge barrett: how would you define super precedent? people use super precedent differently. the way it is used in the scholarship and the weight it is used in the article -- the way it is used in the article is cases that are so well settled that no political actors push further overruling. roe does not fall in that category. scholars say that does not mean that it should be overruled, but descriptively it is not a case that everyone has accepted. sen. klobuchar: here's what is interesting to me. you said that brown is a super precedent. that is something the supreme court has not said, but you have said. if you say that, why won't you wade, a about roe v
case that the court's controlling opinion has described as a super precedent? judge barrett: i can give you the same answer i just did. i am using a term from the scholarly literature. it was developed by scholars who are certainly not conservative scholars, who take a more progressive approach to the constitution, and as richard roe isfrom harvard said, not a super precedent but that does not mean it should be overruled. it just means that it does not fall on the small handful of cases like marbury v madison and brown versus board that no one questions anymore. sen. klobuchar: is virginia v military super precedent? judge barrett: if you continue to ask about super precedents that are not on the list in the article, every time you ask, i
will have to say that i cannot grade it. sen. klobuchar: i am left with looking at the tracks of the record and where it leads the american people, and i think it leads us to a place that will have severe repercussions for them. thank you. >> judge, welcome back. i mean this as good news, but it might not feel like it. i am the 11th of 22. before i begin my questioning, i would like to ask unanimous consent to admit a letter from the head historian at princeton who has written a letter to the committee in response to some of harris -- some of senator harris's claims about the history of supreme court vacancies. >> without objection. >> thank you. it judge, you have said that the meaning of law does not change with time and that that is important. can you and pack -- unpack for
us why? judge barrett: the law stays the same until it is lawfully changed. if we are talking about a law that has been enacted by the people's representatives or has gone through the process of constitutional ratification, it must go through the lawfully prescribed process before it is changed, so article five in the bicameral ascent in the context of statute. >> but laws are written in the context and the circumstances to which those laws applied would change. does the fourth amendment have nothing to say about cell phones? unreasonable search and seizure was not written at a time where they imagined mobile technological devices. judge barrett: the fourth
amendment -- so, the constitution, one reason why it is the longest lasting written constitution in the world is because it is written at a level of generality that is specific enough to protect rights but general enough to be lasting so that when you're talking about the constable banging at your door in 1791 as a search or seizure, now we can apply it to cell phones. so the fourth amendment is a principal. it protects against unreasonable search and seizure, but it does not catalogue the instances in which unreasonable search or seizure could take place. andou take that principle apply it to modern technology like cell phones, like what if technological advances allow someone to see in your house? there is no need to knock on the door and go in. that could still be analyzed under the fourth amendment. >> i think this is a useful
place to explain to the american people what original-ism is and why it is a mistake to view it as a republican position. i think original-ism as part of a jurisprudential debate. it is something that is useful thatverybody who believes we have three branches of government, to that our political and one that is not. when you define yourself as an originalist, what does that what does that have to say about the applications that will change by circumstance? judge barrett: originalism means you treat the constitution as law, and in interpreting the law, you do it in accord with the meaning that the people would have understood at the time it was ratified. the reason you do that is
judges wouldwise be in the constitutional convention business of updating the law rather than allowing the people to take control of it. in the case of the constitution, as i said with the fourth amendment, many of its principles are more general. search and seizure, free speech, those are things that have to be identified or fleshed out over time. the fact that there was not the internet or computers or blogs in 1791 does not mean that the first amendment's free speech clause could not apply to those things now. it enshrines a principal and we -- it enshrines a principle and we understand what the principal was but it can be applied. what are the other
schools of thought that are adjacent to originalism and how do you think about the debates among those with other people who are now with you on the seventh circuit, for instance? judge barrett: one thing that is worth pointing out is that, in the academy, in any event, originalism is not necessarily a conservative idea. there is a whole school of thought -- so come original list originalists ra , it is committed to keeping the constitution's way they do, but they tend to read it at a higher level of generality. agree.ginalists do not
there is something called the constitutional accountability writesthat calls itself, progressive.re it is a more widely accepted view than that. i think that, if you think about different strains of approaching constitutional texts, originalism is one. all judges and justices take account of history and the original meaning, except that some weight it differently. positivests give it weight when it is discernible. other approaches may take a more pragmatic view and say, in some instances, that may have been the historical meaning, but that is an uncomfortable fit for current circumstances, so we will tweak it a little bit to adjusted to fit the circumstances.
sometimes it is called living constitutionalism. sometimes it is called like a more pragmatic constitutionalism. sen. sasse: i want to make sure we establish this fact clearly together. one of the things i think is really unhelpful for the american people when they see hearings like this is that there is an assumption that those of us who have advocated for you over the course of the last three years must be doing it because we know something about your policy views and we have seen the beautiful mind a conspiracy theory charts, for instance, that this is about specific outcomes. what i want is to have a judge who does not want to take away the job of a legislature accountable to the people. what i want is to be sure that the two political branches that are accountable to the people because they can hire and fire us are the places were policy decisions are made. what you are saying is, in the legal academy, there are people
who agree with you on originalism as a broad philosophical school and it would come out in different places. judge barrett: that is what i am saying. sen. sasse: so when you are up for a vacancy on the seventh circuit three years ago, the notre dame law faculty, as i understand, had unanimously recommended you across the faculty and i would assume there is a pretty wide view of policy on the notre dame law faculty. judge barrett: there is. sen. sasse: so we can affirm that you know what a judge is. you have the temperament, modesty, and they are comfortable with you even though they think they might not agree with every policy view you have before you put on your robe. judge barrett: i hope that is what people think of me because that is what i have striven to do. judge, my boss is the rule of law, not imposing my
policy preferences. sen. sasse: can you tell us what the black robe is about? why do judges in our system where robes? -- wear robes? judge barrett: chief justice john marshall started the practice. in the beginning, justices used so where colorful robes that identified them with the schools graduated from. john marshall, at his investiture, decided to wear a simple black robe. now all judges do it. i think the black robe shows that justice is blind. we all dress the same. and 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. you talked a little bit about the process of decision-making and you started with four steps, then added a fifth.
acause it turns out, being reactive branch is really reactive. can you explain what it means, that the article three branches reactive? sen. sasse: article 3 -- ? judge barrett: article three cases of controversy can be heard. we can't even think about the law or how it would apply until litigants bring a real live case with real live parties with a real live dispute before us. the material we have to decide that dispute is what comes from you. a statute you past. -- passed. we react to the litigants who bring cases before us, and we apply the laws that you make. sen. sasse: what are the steps inside those article three quarts before -- three
courts before he gets to the supreme courts? judge barrett: the supreme court, in my court now, the seventh circuit, anytime anyone lose it in the trial courts, they can appeal. and we take every single appeal that comes. the supreme court works differently. the supreme court takes cases when it needs to. most frequently, to resolve a division between the courts of appeal or the state supreme court. the supreme court gets about 8000 petitions a year, and they hear about 80 cases a year. it is discretionary, bookcases to take -- what cases to take. sen. sasse: it is a reactive branch and it is after a process where there is a statute that's been challenged. it works its way up to the courts. but when the justices declined to take a case, what are they saying? are they seeing you don't matter and you don't have a right to appeal? what are they saying to the litigants when they decline?
judge barrett: they are not expressing any view on the merits, they are simply saying this is not a case we are going to but an our docket, because the court has limited time and resources, so it selects the cases where it is resolving a division, for example, in the courts, or some other question of national importance in which the supreme court needs to step in. sen. sasse: there's been a lot of discussion implicitly about standing. can you explain what standing is, so the american people understand it? judge barrett: yes. this dovetails your question about the judiciary being a reactive branch. the constitution gives the courts, the federal courts, the power only to decide actualized in controversy. not only can we wake up one morning and volunteer our views, constitution
prohibits us from giving advisory opinions on the law, which is one reason i am not able to answer some of the questions being asked today, to litigant can not give an advisory opinion unless the litigants actually has a real case. you could not walk into court and file a lawsuit and just oned me to give my advice whether some statute was constitutional. i can only decide that question if there's an actual dispute about it. livingsse: you mentioned constitutionalism of little bit ago. chief justice warren had a much broader view of standing than some of the folks and have influenced your thinking and writing. can you walk us through the history of the court's view of standing over the last few decades? judge barrett: are you thinking -- when abroadly plaintiff has suffered an injury? sen. sasse: right. judge barrett: so, if you came into court and you were objecting to a particular
statute, and you did not like a particular statute, you would have to actually suffer what is called a concrete injury. so, the supreme court a few terms ago in a case said that a can file a concrete is palpable. harm it cannot just be a procedural injury, something that didn't have real consequence or real effect on the litigant. i think that the dispute about standing, the difficult thing in deciding questions of standing and the opinion of the case laid this out is deciding when an injury is concrete or more abstract and designed to elicit an advisory opinion from the court. sen. sasse: you said in your opening comments yesterday that it is not the responsibility of righturts t right -- to
every wrong in society. can you remind us what your view is there? why did you say that? judge barrett: i think what i was getting at there, so much -- there, so much has happened yesterday.discussion inn if they come to courts the situation of a case of controversy, a court can legitimately decide, we are not just free to just resolve it like solomon in the way we think is wisest. we are only free to address runs wrongs and decide cases within democratically elected love. a view of policy that enables us to write a run to do
so -- right or wrong to do so. explained to us why you take the perspective of wanting to losing -- wanting the losing party to understand the law and argument. judge barrett: i write the opinion as i would write the opinion. after i write the opinion, i read it from the perspective of the losing party. is at to make sure that it check on me to make sure that if i try to put my emotions or my preference is on the other side, that i can see that it's been a balance strictly driven by legal analysis. i also want to make sure the language in it is very respectful to the party who will ultimately be disappointed. that is responsive -- know if that is responsive. sen. sasse: why i want to ask this is because i am in my fifth year here, i am on my fourth
year in this committee. you are the third supreme court nominee to come before the committee during that time. have had dozens of appellate court nominees. admin it amazed how many times the arguments -- i have been amazed to many times the argument is, the person sitting before us obviously hates people and once sick people to die -- wants sick people to die. that is an argument that is routine around here. it is a good way to demonize nominees to the court and hopefully drive outcomes in elections, i guess. i don't understand it. i think it is destructive. i think about it from the ,tandpoint of thoughtful well-meaning nebraska democrats who hear that, and they know i have a different policy view might, so-- than they people can keep their health insurance.
the number one driver of an insurance in american public life is that we change jobs a lot more frequently than we used to. i have a different policy solution of how we would get to portability and health care. but those are policy disputes about a modern economy where people move around a lot, both geographically and in terms of employment sponsored health insurance relationships. those contracts are not really the things that are nominee coming before the court is n, because iopine o don't have any idea what your views are on health care, but it's not the job of a judge to reflect on those things. i want to be sure that folks who hear this hearing, and at the end of the process, they can have trust that you are not a person who really wishes secretly that you could be the queen of all health care and decide all these issues. when you write your opinion, it seems to me one of the really
humble things you're doing is you're saying, in every case that's come before me on the seventh circuit, i want to write this opinion from the standpoint of the losing party to understand what was the question before the court today, and how did the court rule on that specific narrow thing? because ultimately, i think you would believe, given your jurisprudential tradition and your view of judicial modesty and humility, your scalia mentorship, my guess is there are times when you roll in cases where you go home at night and take off your robe and you think the outcome is not the outcome been the case. but it's not your job to decide all policy in american life, it was to decide the specific question before you. it seems to me the humble, empathetic way you write those opinions is really important. the interest of the american people who might listen to a lot of the demagoguery that you are just secretly a policy after, that you would be -- that it would be pretty comforting to them that
you have written more than anybody who is currently on the court. so people can actually know your jurisprudential views and how you are going to approach cases when you get on the court. because you have written a ton. there is a reason why the faculty of notre dame regardless of their policy position wrote a letter to this committee universally recommending you. there's a reason why year after year, your professor of the year, because students thought you are really got of explaining what the job of a judges and with the purpose of article three is. as someone who worries a lot about institutional trust, and a lot of the attacks that we see on the court, a lot of the attempts we see in this language about potentially court packing, 15,e would go to 11, 13, thatrson court, delegitimizing of the courts
should have as an antidote the fact that you have written a ton about what you think the job of a judge is so people can actually understand it. i would hope that is something this year and would try to unpack. i am nearly out of time. think the chairman is going to take away my slot. i want to as one final thing. tell us about this scalia-ginsburg friendship and the impact it made on you. judge barrett: so, justice scalia, famously, when the during thee up, justiceadministration, scalia recommended her even though they had been together on the, where they got to know each other -- on the d c, where they got to know each other, and he knew that she had a different approach. it speaks so well to both of their characters that despite the fact that they had such great differences, and they when fight with the pen,
they were socializing, when they were outside of the opinion writing world, they had respect and affection for one another. that is how i try to live my life. i have friends who disagree with me vehemently about all kinds of things, but i think that it is dehumanizing if we reduce people to the political or policy differences that we might have with one another. sen. sasse: thank you. congrats on being passed on. >> for the record, i really enjoyed listening to you, senator sasse. you make a lot of sense and you explained the system very well. you don't have to be a lawyer to understand what the law is all about. senator? >> thank you to you and your family. welcome. i guess i'm on the downside. if i might just add my opening, mr. chairman, i will submit two letters into the record if i might. the 2 millionof
members of the service employees international union and one on behalf of the national consolation of disability rights group. >> without objection. >> judge barrett, if i might, the calendar behind me makes clear something about the context we are in. because i think folks watching this and home, despite the wonderful efforts that a number of my colleagues have made to make this accessible, may have difficulty understanding exactly why we are here and why and are these circumstances and why we keep bringing up the affordable care act. let me try and walk that through. these are not normal times, as you will know. most of us are wearing masks. there's a number of members of this committee in the senate who have been infected by covid, as our president has, which has resulted in the senate being noted this week and our being able to proceed. we are in the middle of a
pandemic. we are just three weeks from an election. a presidential election in which folks are voting in more than 40 states, millions of folks have already been cast. just a week after that election, the supreme court will hear a case that could take away health care protections for more than half of all americans. this is not an abstract academic argument. it's one that will have real-life consequences. destroying the essential protections of the affordable care act, which was enough to just more than a decade ago, would have a real impact on a majority of all americans. it prevents insurance companies from discriminating against the more than 100 million americans with pre-existing conditions, like diabetes or heart disease. it dramatically expanded medicaid and provides coverage for kids on their parents' insurance up to the age of 26 years old. i should say young adult. most importantly, since a lot of what we have been talking about is the legacy of justice ginsburg and her lifelong commitment to gender equity, it
also prevents insurance companies, the affordable care discriminate against women just for being women, it may be hard to imagine now, but more than a decade ago before the aca, pregnancy was treated as a pre-existing condition and women were routinely charged more than men just because insurance companies could. so president trump, he said over and over again that he is determined to repeal the affordable care act. he is determined to overthrow it. there's two things all of us are waiting for, one is his detailed health plan and one is his taxes. i don't expect either one of them in the next few weeks. the president tried to do it here in congress. my colleagues voted 70 times to overturn the affordable care act . chamber, many members of this committee have filed a brief before the supreme
court, asking for the law to be struck down. now on the eve of the election, president trump is making a last gasp attempt to get the supreme court to do it for him. he can't do it through the democratic process, he can't do it in ministry to flick, he is going to try to do it with one more challenge. as you all know, judge, it was in a 5-4 decision where chief justice roberts wrote a critical decisive piece of the majority opinion, but justice scalia, your mentor, whose broad philosophy you embraced, dissented. he voted to strike down the integrity of the law -- the entirety of the love. you wrote an article in constitutional commentary in 2017. critical of chief justice roberts' decision. i want to ask you about that article. because i believe the outcome in this case, a week after the
election, may hang in the balance. in wrote in that article, the case that upheld the aca can -- as additional challenge as it has additional challenge, to save the statute. you are referring to chief justice roberts' ruling that the individual mandate in the aca's constitutional under congress' essential to, protecting the health care of a majority of americans. if you could, do you think the chief justice's ruling of upholding the affordable care -- ins on plausible and plausible and unsound? -- was not plausible and unsound? judge coons: what i said -- ? sen. sasse: what i said -- what i said was a natural reading of the mandate, that theng it
statutory interpretation seemed stretch beyond meaning. alias was the threshold question. as a constitutional question, it was not something i ever opined on. the case next week, the case that is coming in a few weeks, california versus texas, i would not say they are fighting words that you read from me. because the california versus texas case involves a very different issue, the issue of severability. for those to be fighting words, you would have to assume that my critique of the reasoning reflects a possibility to the act that would cause me to approach a case involving the aca with hostility and looking for a way to take it down and
depressed people of the coverage under the aca because i did not like it. but i can promise you that is not my view, it's not my approach to the law. i have no hostility to the affordable care act or any other law. nothing that i have said with respect to the affordable care , it is nott indicative of how i might approach that question. sen. coons: let me go back to what i referred to as fighting words. you are both from the same general school of constitutional methodology. judge barrett: you mean justice scalia and me? sen. coons: and chief justice roberts. judge barrett: i'm not sure he has ever identified himself as a textualist. sen. coons: in this article, you chastised chief justice roberts for not being a textualist. -- a textualist. , "it is in this article
legitimate for the courts to distort either the constitution or a statute to achieve what it deems a preferable result. --s was the sort of outcomes -- omes-oriented saying frankly, i disagree with the gaza to the statute. that is to me a claim to reading of your own writing. judge barrett: i want to make this came upaybe with senator klobuchar, i was not attacking or chastising chief justice roberts at all. what you're talking
about was maybe a couple of paragraphs, maybe even one paragraph at the end. it was a comment on mandy barnett's book, a lot of his book dealt with the case as an example. i was responding to that. the sentence you read me about its illegitimate for a court to twist language and for suitable policy goals, that is what i think -- i don't think it is the job of the courts to pursue policy goals that the text does not support. sen. coons: you are accusing the chief justice or chastising the chief justice of distorting the upholding it when it should have been struck down. judge barrett: no, i was not chastising. all i was doing was expressing -- as i have said several times, it's how the chief justice himself characterized it. not the most natural reading of
that language. sen. coons: i don't think the chief justice would agree with that characterization. he didn't describe his own opinion is not plausible. judge barrett: he said less natural. --hought it was on plausible not plausible. sen. coons: but it was not unsound? judge barrett: i did not criticize or chastise the chief justice. it is true that chief justice roberts and justice scalia to different approaches to the text in the affordable care act case, something widely acknowledged. sen. coons: i'm simply trying to make clear that i think your 2017, yes, the majority is a book review about a book that essentially talks about the case and methodological questions, but near the end, you are unmistakably clear in saying, i disagree with the chief justice's ruling upholding the affordable care act. i deem it on plausible and on
sound -- and unsound -- i deem it not plausible and unsound. judge barrett: i did express a critique as an academic. you quoted the language, you pulled out those few sentences at the end. i guess i'm a little uncertain what it indicates, because as i've said, i have no hostility to the aca. if a case came up before me presenting a different question of the aca, i would approach it with no bias or hostility. i also have said earlier points in this hearing that the exercise of being a commentator and academic is much different than the enterprise of judging. i didn't have to sit in chief when theoberts' seat case was decided. sen. coons: but you will if we follow the timeline laid out by my colleagues, you will sit in former justice ginsburg's seat and as a member of the court deciding a case that is very similar to the previous one, in
which the central issue before the court, believer do not, somehow, will be the constitutionality of the mandate -- believe it or not, will be the constitutionality of the mandate. for, there were five justices for different reasons concluded they could uphold it in the case of the chief justice. you wrote that chief justice roberts, if he had treated the payment owed under the mandate as the statute did as a penalty, he would have had to invalidate it. i think you are unmistakably criticizing this decision to uphold the affordable care act in a case that will be before you as a newly seeded member of the supreme court if the majority continues with this race towards your confirmation. it is the nerve center of the
case. it's the entire future of the affordable care act that hinges on this question of whether or share the view that this is something that cannot be upheld with any plausible reading of the statute. judge merrick, you're not the only one who has criticized chief justice roberts for his decision to uphold the aca. president trump criticized him for sharply and repeatedly -- him for it sharply and repeatedly, saying he turned on his principles with irrational reasoning in order to get loving press. congratulations to john roberts for making americans hate the supreme court because of his bs. a few years later, while running for president, then candidate from set on twitter, i believe
my colleague put this up earlier, if i won the presidency, my judicial appointments will do the right thing, unlike bush's appointee, john roberts, on obamacare. as recently as two months ago, pens described -- pence described justice roberts as a disappointment to the conservatives because of the oba macare. justice roberts was the only justice who went against the political wishes of the party that appointed him, the republican party. why did you choose to single him out for criticism in that constitutional commentary article? judge barrett: i was writing about the majority opinion. chief justice roberts was the author of the opinion. i was simply discussing what the five justice majority adopted as its reasoning. i was not attacking chief
justice roberts or impugning his character or anything of that sort. it was an academic critique. given theemphasize, line of questions you are asking, that i am standing before the committee today saying i half the integrity to act consistently with my owes and apply the law as the law. aca and everye other statute without bias. i've not made any deals or anything like that. i'm not here on a mission to destroy the affordable care act. i'm here to apply the law and adhere to the rule of law. sen. coons: i think it is important folks watching understand that i believe your views are sincere and earnestly held. suggest thereg to was some secret deal between you and president trump when you told me that when we spoke a week ago. i've had no conversations about these cases with the president or his legal team. i believe you.
i think you are a person who earnestly means that. and i do think it is important that you keep repeating that. but we cannot ignore the larger context that sits outside your nomination and this rushed process. i'm sure you have no ill will towards the chief justice and meant no disrespect to him as an individual. we have talked repeatedly about the friendship between justice scalia and justice ginsburg. i was uninspired by their friendship, senators biden and mccain, they fought hammer and disagreed day in and day out on foreign policy, but could still spend time together with each other's families and respect each other afterwards. to the point my colleague from nebraska made, it is important for us to try and sustain these institutions that hold us together. sen. coons: u.n. senator -- --ge barrett: u.n. senator
you and senator flake are a good example of that. sen. coons: working together even across significant differences. that senatorontext whitehouse went through in detail was, as you are expressing opinions in an academic journal, there's an army of lobbyists and lawyers donors and activists, who are funneling new judges into our courts. and i have sat here for four years and watched a whole wheresion of judges, without going on about this too much, a dozen have been deemed unqualified to serve. this is not a comment on you, but the speed in the process and disrespect for some of the critical traditions of this body in terms of the blue slip and who gets nominated and why has made it harder and harder to see the independence of the judicial branch. and in this piece you wrote in
2017, you made, i think, your position with regards to the chief justice and his opinion clear. let me put up another poster that may make this a little sharper in a way that is the political branch's. the supreme court is going to hear arguments in this case a week after the election. most americans are probably surprised to even hear about it. i talk to a constituent with a pre-existing condition, she was surprised this was even in front of the court. she said i thought that was settled. she has a daughter she is raising. before the aca, she had to spend it hundred dollars a month for insurance -- $800 a month for insurance. it left her without going to the doctor's office and needing drugs. because of the aca, she has been able to get better quality insurance that she can afford
and she's got both type two diabetes and high blood pressure. but the aca guarantees she can't or made tonsurance, pay higher premiums because of her gender or pre-existing conditions. she has expressed to me astonishment. many of us are engaged and interested in this because we care about the constitutional l aw and the way it impacts a majority, all, of americans. help me explain to her, how was it that the affordable care act settled it years ago is back in front of the supreme court? judge barrett: i spent some time with senator sasse talking about like this ended up here again. as to the broader question, as a political one, why people are
fighting the affordable care act , i don't know why they are fighting the affordable care act . sen. coons: yes, there are no advisory opinions, as you said in your exchange with senator sasse. you need to have standing. but as a senator whitehouse laid out, there's a home that group -- a whole network of groups that present case is over and over. this is an issue that will be before the court just a week after the election that is really not distinguishable from that case. they are essentially about the causes shall at a of the mandate . you don't get to the question of severability if you have not already determined the question of constitutionality. judge barrett: but i think the question of severability, even if now zeroed out mandate for additions a penalty, it does not ffect it at all of the
-- if the provision can be severed out . i actually think that --erability is sort of the one of the most important issues in the case. i don't think the question of characterizing it as a tax versus a penalty. sen. coons: if i could, this is the filing of the department of justice in the supreme court. the justice department is supposed to defend the constitutionality of federal if any reasonable defense can be made. the trump justice department has sided with those advocates were trying once again to strike the law down now in the courts when they could not accomplish that here. i would argue they are denying the will of the voters, that clearly, in 2018, in deciding on health care, want this to stay.
arguingnister she is this now toothless mandates which imposes no payment on andne is nonconstitutional arguing the entire act must be struck down as a result. i think the doj is embarrassed by this. it's in black and white in the quotes over my shoulder. the mandate is unconstitutional and must go. the parts of the law that prevent insurance companies from disseminating with people -- from discriminating people with existing conditions must be dissolved. americans were watching deserve to understand -- americans watching deserve to understand this is back up in , the postureboard being taken, the ways in , while i know you won't talk about this pending case, what you said in the 2017 article is highly relevant. votepreliminary point, the
to uphold the aca went 5-4. justice ginsburg was in the majority, justice scalia in the minority. if you were to replace justice ginsburg with someone who followed precisely justice scalia's analysis on the linchpin question of constitutionality, one could expect it would be overturned. judge barrett: no, because of their were direct challenges to the case, there would be president on point. whole body of doctrine that --ds judges itself i don't think one could assume that in a separate point in time , that even justice scalia would necessarily decide the case the same way there was president on the books. sen. coons: i agree. a look forward to discussing that in more detail tomorrow. i have six minutes. your views of president and the
ways in which they may diverge are important for us to spend some time on. let me just recap this point. from president trump, for republican politicians, the argument about tax and whether or not the mandate is a tax is a gateway to knocking down the entire affordable care act. that is also the line of attack being taken by the department of justice. you have already said it's not plausible to interpret the mandate as a tax. you didn't think it was a tax when it was raising billions of dollars in revenue. you are not likely to believe it's a tax when it raises no revenue. the thing that might distinguish it from that case is reliance interest and president. when i have more time tomorrow, we will go through that. i just wanted to connect some dots. trump has repeatedly vowed to get rid of the affordable care act, has campaigned on it, said his nominees would do the right thing, his administration is
in court right now to hurt a case in four weeks that it should be invalidated. and you have criticized chief opinion. it means in many ways that you have signaled, i think, you were added to the supreme court shortlist after you wrote that article. and today, my republicans colleagues who themselves promise to repeal the affordable care act are rushing through your nomination so you can be seated in time to hear this case. it concerns me greatly that that is the circumstances we are in. let me ask one last line of question. -- questioning. there's another subject in which president trump has been unfortunately very clear about a --he hopes from
what he hopes from a nominee. why was there such a rush to fill a seat so close to the election? he was asked. it was a scam, it's a hoax, they are going to need nine justices. the next they, he told reporters the election will end up in the super import. it's very important. we must have nine justices. -- supreme court. important. we must have nine justices. he's been asked directly and repeatedly. instead of responding in the way we expect any leader of a free world to answer, he has sowed distrust and the potential result. your honor, i am concerned that what president trump once here could not be clearer. he is trying to rush this nomination ahead so you might cast a decision, a vote in his favor, in the event of a disputed election, and is doing
his level to best to cast doubt on the legitimacy of an election in which literally millions of votes have already been cast, most of them by mail. i was very encouraged to hear from you specifically. you have not had any conversation with him about this topic area that is not what i am's adjusting. -- have repeated promptly the court issue in recusal is that any judge or justice should recuse themselves from a case in which their impartiality might reasonably be questioned. given what president trump said, given the rest context of this confirmation, will you come it to recusing yourself -- commit to recusing yourself from any case after the election three weeks from now? judge barrett: i want to be very
clear for the record and to all members of this committee. no matter what anyone else may notk or expect, i have committed to anyone or so much as it signaled, i've never written. i've been in a couple of circles, but i have never written anything that i thought anybody could reasonably say, this is how she might resolve an election dispute. 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 the election for the american people. that would be on the question for actual bias. you write the statute requires a justice or judge to recuse when there is an appearance of bias. what i will commit to every member of this committee, to the rest of the senate and the american people is that i will consider all factors that are
relevant to that question that requires recusal when there's an appearance of bias, and there is case law under the statute. in describing the recusal process of the supreme court, justice ginsburg said it is always done with consultation of the other justices. i promise you, if i were confirmed and if an election dispute arises, both of which would veryhat i seriously undertake that process and consider every relevant factor. i can't commit to you right now, but i do assure you of my integrity and i do assure you that i would take that question very seriously. thank you. -- thechief justice, former chief justice rehnquist wrote a letter to members of this committee that there's a procedure for court review by a decision in individual cases,
something justin's ginsburg -- justice ginsburg did say, there was consultation. ensuring there is confidence in our election, in the supreme court, in its role, is critical. i have reached out to my colleagues to implore them to step back from the timing of this confirmation, to consider the possible confluence of three different factors here, and election, an-- an that i would., urge them to step back from this confirmation.
ok, we will do senator hawley and take a break. is that ok with you? >> yeah. >> you are on deck. we will try to take a 15 minute break. just one observation. a lot of good questions. not one time has a senator and the judge talked over each other. i hope the american people understand that this is the way that it should be. senator hawley? >> thank you. i would like to begin by asking consent to enter letters into the record. the first is from the family research council. >> without objection. >> thank you.
it's good to see you again. withe been so impressed your answers today. it's really quite extraordinary. can we start on the topic of independence, picking up where senator kunz was questioning you. i heard my colleagues suggest that because you clerked for justice scalia, you will automatically vote however he did. did he tell you what to do when your career? have you been in the habit of doing exactly what he told you to do in your professional career? judge barrett: as i said earlier, if you confront me, you are getting justice barrett, not justice scalia. i share his method of interpreting the text. i did not agree with him in every case. he couldn't tell me what to do. i had to go his way.
the fact that we share approach does not mean we would reach the same results. >> you make up your own mind? >> i do. >> you have your own views, i think it is shared us -- fair to say. >> you are a very accomplished jurist. >> it feels a modest. you are very accomplished. you would automatically -- i let me ask you -- let me ask you about some other attacks you endured. i noticed yesterday we were assured you would not be attacked on the basis of your faith. surprised, because for 3.5 years, we have heard consistent attacks from the democrat side on nominees on the basis of their faith, including you, judge barrett. today, the second democrat senator to speak questioned, criticized you for speaking to a
christian legal group that has a program, a summer program for christian law students, where you gave a lecture once or twice unconstitutional and statutory interpretation. let me ask you about that. you have talked about your faith. you accepted an invitation to speak to a group of christian law students on the topic of your specialty. tell us why you accepted the invitation. judge barrett: i had several other colleagues who had participated in the blackstone program lecturing. i heard great things about it from them. we had a contingent of students from notre dame regularly attend this program, among our most engaged and smarter students. i went and did it for a time. i really enjoyed it. the students were really engaged. i did it for five times each summer, i would go -- 4-5 times each summer, i would go and give
originalism. a lecture on i went and give my one-hour lecture at the beginning of it. i really thought it was fun to talk about the constitution to an engaged group of students. sen. hawley: are you aware of anything in the constitution or our laws that says it is a disqualification for office for a believer of a faith to go lecture to others similar faiths on her expertise? judge barrett: i want to be careful that i am not veering into answering hypothetical questions, but i certainly did not think there was anything wrong with my going to speak to a group of christian law students about my expertise. sen. hawley: senator leahy also raised a pledge, a statement that you signed, regarding abortion. you told us, you told the committee in response to this i'm looking at the portion you sent, you signed it
on your way to church, if i remember correctly. judge barrett: i did. that was almost 15 years ago. at the back of church, there was a table set up for people on ss to signout of ma a statement validating their commitment to the position of the catholic church on life issues. ad that was next to it, i don't recall seeing the ad at the time. it looks to me like that was an ad from a group. wasstatement that i signed affirming the protection of life and natural death. sen. hawley: you made reference to the fact that it was in church. why would it have been in the back of a church? why would this have been available to sign or not, as you so chose, in the back of a church? judge barrett: because that is the position of the catholic church on abortion.
i feel like i should emphasize see as distinct my personal moral religious views and my task of applying laws as a judge. sen. hawley: is it safe to say due to that the section you just make the signature of your husband also reflect your understanding of your own personal views? that is what this says, that you signed. judge barrett: what i would like to say about that is, i signed that almost 15 years ago and my personal capacity when i was still a private citizen. now, i am a public official. while i was free to express my private views at that time, i don't feel like it is appropriate for me anymore because of the canons of context to express an affirmative you at this point in time. what that statement plainly says is that when i signed that statement, that is what i was doing at that point as a private citizen. sen. hawley: i'm not aware of
any law or provision of the constitution that says that if you are a member of the catholic church and adhere to the teachings of the church or you have religious convictions in line, that therefore you are barred from office. are you aware of any presentational provision to that effect -- constitutional provision to that effect? article six is coming over -- article six says, no religious -- can you give us your sense as a scholar and judge about the significance of article six for our constitutional scheme? judge barrett: the religious ,ext cause prohibits this body prohibits the government generally, from disqualifying people from office because of their religious belief. guarantees: and it freedom of religion.
amendment one will go on to talk explicitly about religious liberty. article six is significant in that it sets out that one cannot be -- no american citizen can be kept out of office based on his or her belief. you don't have to go and get someone's approval over what you believe, does it meet this test or not, do they like it or not? you don't have to give any sign of. signoff's ruled out by the cause edition. denomination or belief cannot be a reason to disqualify someone. sen. hawley: that is why i continue to say it is vital that we underline in the constitution this text clause and we insist and -- we insist it be for every high office who comes before this committee. there are no religious test for office in the intent to smuggle
them in. it must be resisted on the basis of the constitution itself. let me ask you about the first amendment, the free exercise of religion. that is how the first amendment begins, congress shall make no lower spending -- no law prohibiting the free exercise thereof. tell me what you think this says about the police of religious observance in american life and its significance. why is it protected like this? judge barrett: i think it is present in the bill of rights the peoplews consider it essential to being a free people. sen. hawley: there's no indication from the constitution that religious believers are second-class citizens, is there? judge barrett: the free exercise suggests the contrary. sen. hawley: as the free exercise clause and first suggests, it
gets special protection along with speech, press, right to assemble, religion is given a special place, which the u.s. supreme court has recognized. let me ask you about attempts to disfavor religious believers on the basis of faith. is it your understanding, can a ,overnment at any level federal, state, municipality, can they treat religious believers differently? can they single them out for disfavor versus a nonreligious group? is that permissible in our constitutional order? judge barrett: that is a complicated question. there's a lot of doctrines surrounding that. there are not right lined rules. that question would come up in a case with facts and would require the whole judicial process. it's not a hypothetical that i
can answer. sen. hawley: let me ask you about the unanimous decision that touches one of these questions, the question about churches' ability to hire and fire ministers, those who perform religious services. the court says houses of worship are different, that they are unique, they are given special protection under the first theyment, and therefore must be accorded special status, they have to have the ability ,or hiring and firing ministers those who will perform religious functions, the state and government cannot interfere with that. do you agree with the teaching of that case? do you think that case remains good law and is a significant decision? judge barrett: i think the way to answer that question is, as i've said, i cannot great president, but i can talk about a precedent from my court. i was on a panel that decided a case which applied the situation
of a jewish school which had fired a teacher, and the teacher sued, and the question was that school was entitled to treat her as a minister under the ministerial exception recognized in the law. the panel that i was on said that she was administered, and -- she was a minister, and we took the factors of the law. that law was designed to give thegious institutions freedom to hire and fire their ministers. in this case, one of the jewish faith. as consistent with the practice of their faith. and that the of hours was embraced -- that view of ours
was embraced by the supreme court. sen. hawley: its vital in this time, when we are seeing many challenges to religious independence, many challenges to the ability of churches to worship on equal terms with secular organizations, that the supreme inrt's unanimous decisions i thinka and others, the lines of the supreme court -- the lines that the supreme court has drawn regarding houses of warship, no more than ever, it is vital that those be respected and that the constitution be fully enforced and the line of cases that is now multi-years old the supreme court has set out be followed. i certainly hope that you will respect and apply that precedent going forward. i don't have any reason to think you won't. let me ask about another attack
that has been made on you today having to do with the cantor case. the cantor case, first of all, is a case about the second amendment, the right to keep and bear arms. it is about whether or not someone who had been charged and convicted that guilty to a finale could keep and bear arms -- to a felony could keep and bear arms. now, i've heard repeatedly that you have dissented in this case, you write in your dissent that the right to keep and bear arms is an individual right, but the right to vote is not an individual right. maybe i'm reading a different opinion, that is not what you 50,in the opinion of page your dissent, you refer to civic rights, voting rights as civic
rights, and you say civic rights are individual rights. a moment later, you say, for example, the right to vote is held by individuals. let's set the record straight. in this case, you say the right to vote is an individual right. is that correct? judge barrett: that is correct. sen. hawley: the distinction between a civic right and the second amendment has to do with the purposes of that right. that's not a distinction you invented, is that correct? you are replying to a chain of cases and also scholarship on this issue. is that correct? judge barrett: that is correct. sen. hawley: it talks about what the right to vote civic purposes are. you never at any point say the right to vote is somehow secondary or less than, less fundamental than any other right. is that fair to say? judge barrett: that is fair to say. sen. hawley: your whole point in
this case, which is a fundamental rights case, nothing to do with voting rights, your whole point in thisthe whole pos that you think your colleagues seventh circuit restricted, the right to keep and bear arms is the heller decision, you thought your colleagues were constraining the fundamental right little too narrowly. judge barrett: we disagree about the scope. sen. hawley: so just to make the record perfectly clear, the united states supreme court has that over and over the right to vote is a fundamental right. if you have affirmed that it recognized today, you said, that is the supreme court precedent, am i right about that? judge barrett: yes. sen. hawley: and they said they would hold onto the one vote
sentiment. nothing in your opinion challenges that were changes that, because into question, critiques, nothing, right? judge barrett: not one iota. sen. hawley: ok. i am glad we are clear on that. senator durbin said come as part of his line of questioning on this, he suggested that, i don't know, perhaps your opinion on this case somehow -- which has nothing to do with voting rights -- will deny people the right to vote on racial grounds. allent on to say that we come to, every judge, all of us who come to the law, every judge that comes to the bench come to the bench into cases with their own individual experience and viewpoints. let's talk about that for just a second, if we could, when it comes to the fraud but vital issue of race and your own experience with that. you and your husband are the parents of a multiracial family. judge barrett: we are. sen. hawley: can you give us
some sense, just in your pursuits. , what that has been like for you, what that means for you, what experience you bring to the bench, because of your in this context? judge barrett: i think i can say how it has shaped me as a person. whenever, you know, you have a life experience commit makes you acutely aware of your interactions with other people, it gives you empathy for them, the same is true by having a sun with a disability, but i want to make very clear, senator hawley, that while my life experiences, i think, you know, i hope have given me wisdom and compassion, they don't dictate how i decide cases, because, you know, as we discussed before and has been discussed a couple of times, sometimes you have to decide cases in ways in which you do not like the
results. so while i hope that my family makes me a better person command my children definitely have, given me a new perspective on ine, i still apply the law deciding cases, and don't let those experience dictate the outcome. sen. hawley: you will follow the law wherever the law leads. judge barrett: yes. sen. hawley: which brings us full circle to where we started about your own independent spirit you have cultivated over the course of your very distinguished career a reputation for into original thinking, independence, i would say for courage and for toughness, and you have never -- i see no evidence in your record that you have ever compromised, cowtown, or bend your position to the whims of other people, especially those in power, by those who expected you to do or told you to do. judge barrett: i think that is fair to say. sen. hawley: i admire the way in
which you answer these questions, judge, and your for rightness on the issues. i look forward to talking to you more tomorrow kid with that, mr. chairman, i yield back my time. sen. graham: thank you, senator hawley. we will reconvene in about 10 minutes, go until about 6:30, and take a 30-minute break did to have some dinner, and then we will come back and finish out round one today. so a 20-minute break. >> a few missed any of today's supreme court confirmation hearing for judge amy coney barrett, head to our website or search for portions of interest. that's online at c-span.org. on tomorrow's washington journal, we got your reaction to the confirmation process by taking your phone calls and text messages.
washington journal is live every morning at 7:00 a.m. eastern. the third day of the confirmation hearing resumes with judge barrett taking more questions from committee members who each have up to 20 minutes. that gets underway at 9:00 eastern, live on c-span and c-span.org. you can listen live on our free radio app. ♪ youru're watching c-span, unfiltered view of government. created by america's cable television companies as a public service and brought to you today by your television provider. to of judge amy coney barrett's conversation -- confirmation hearing. this included questions from senators blumenthal, tillis, geraldo, booker, and crapo.
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