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tv   Part 1 Supreme Court Nominee Amy Coney Barrett Confirmation Hearing - Day 3  CSPAN  October 14, 2020 8:01pm-11:00pm EDT

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>> if you missed any of judge amy coney barrett's confirmation hearing over the last three days, you can find all her testimony online at as well as other events that took place before her nomination to the supreme court. on tomorrow's washington journal, we will get your reaction to the confirmation process by taking your phone calls and text messages. washington journalism live every day at 7:00 a.m. eastern. later any the morning, judge barrett's concludes with the senate judiciary committee listening to outside witnesses who support and oppose her nomination. a.m.gets underway at 9:00 eastern. on c-span you can watch online at or listen on our free radio app. you are watching c-span, your unfiltered view of government. created by america's cable
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television company as a public service and brought to you today by your television provider. >> supreme court nominee amy coney barrett was back on capitol hill free third day in a row to answer another round of questions at her confirmation hearing. this time, committee members had up to 20 minutes each to question judge barrett on her legal philosophy and other issues including abortion, voting rights and the affordable care act. >> good morning, welcome, judge. welcome to all my colleagues. it is a long day but i thought a productive day. we have 20 minute rounds and
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hopefully we can be done in time before dinner tonight and we will plow ahead and have a few breaks along the way. so, a couple observations from yesterday. there's an opportunity here to thinkinghe nominee's to the extent she can share her thoughts without deciding a particular case that comes before her. senator harris who are respect suggested you were not candid and judge barrett, i could not disagree more. i have been here for a few of these, i have voted for every nominee that has come before the committee. they have one thing in common, all of you are highly qualified, cape will people. i saw that in just a sotomayor and justice kagan submitted by president obama.
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definitely did not share their legal philosophy, i expected them to be fairly solid votes for the liberal side of the court and generally speaking, they have been, that they have done so honorably. i think they have kept their commitment to be fair and impartial, but we do understand judicial philosophy matters. there's difference is, i think, everybody in america can get three hours of credit for if the most detailed explanation of a legal philosophy any nominee has provided to the senate and i appreciate that. senator harris mentioned about how much more candid justice ginsburg was. with all due respect, senator harris, i don't agree with that. i think justice ginsburg established the ginsburg rule for a reason, but what she
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decided in terms of evidence of candor was a very articulate statement by justice ginsburg as to why she embraced the pro-choice point of view. that's not being candid about the law. that is being candid about who you are. i think it's pretty clear to everybody who has been watching these hearings that you and your family are pro-life, that you are a practicing catholic, and to the tenants of your faith but i hope people also understand that you have made a pledge to the committee and to the country at large that you will set aside whatever religious views you have when it comes time to decide the law. there has already been an example in the seventh circuit where you upheld a legislative provision that restricted access to abortion clinics in terms of protesting. confident that
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you will judge every american based on their case, not the law of amy. here is what is important to me. senator blackburn and ernst are two conservative women on this committee. it is a very give and take society called america, but there is one group in america i think is having a hard time of it and that is conservatives of color. and women conservatives. there is an effort by some in the liberal world to marginalize the contribution because you come out on a different side of an issue. particularly, abortion. this hearing, to me, is an opportunity to not punch through a glass ceiling, but a reinforced concrete barrier around conservative women. you're going to shatter that area.
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i have never been more proud of the nominee than i am of you. you have been candid to this body about who you are and what you believe. you've been reassuring in your disposition and this is history being made, folks. this is the first time in american history that we've nominated a woman who is unashamedly pro-life and embraces her faith without apology and she is going to the court. a seat at the table is waiting on you and it will be a great signal to all young women who share your view of the world that there is a seat at the table for them. this won't be celebrated in most places. find much hard to commentary about this moment in american history, but in many of our worlds, this will be celebrated. this has been a long time coming and we have arrived. so i want to thank president
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trump for giving you the opportunity to showcase your talents. sotomayorthat justice and kagan were incredibly qualified women of great character, disposition and integrity, and i believe the same about you. so, let's talk a little about yesterday. obamacare. this hearing has been more about obamacare than it has you. obamacare is on the ballot. if you want socialized, single-payer health care, that is on the ballot. why didn't any of us object to obamacare? sed on aritten and pas partisan line i think on christmas eve. most big changes in society have than we were talking about 1/5 of the american economy and as i said yesterday from a south carolina point of view, this has not worked out well.
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we started with five exchanges, we are down to one, you have one choice. four rural hospitals have closed. premiums have gone up, not down. and when you look at the formula used by obamacare, i can understand why senator harris likes it the way it is. i can understand why chuck schumer likes it the way it is. states get 35% of all obamacare dollars. new york, california, massachusetts. they are 22% of the population. in south carolina, if you had a per patient formula in a matter where you live, you got the same contribution from the federal government. south carolina would receive almost an additional $1 billion. i don't blame california, new york, and massachusetts for wanting more. people in south carolina should blame me for accepting that construct. care, weomes to health all have our different positions, but today is about
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you. or nots about whether you're qualified to serve on the highest court in the land. severability. can you tell me, again, i know you have been asked 100 times, the doctrine of severability, what does it mean? push the red button. i think so. no, i can't hear you now. it's not --t: host: there we go. judge barrett: ok. so the doctrine of severability is a doctrine essentially of statutory interpretation and what it means is if you have a statute and the affordable care act is obviously a very long statute, if there is one provision within the statute that is unconstitutional, the
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question is whether that one section can simply be rendered null and excised from the statute, severed, so that the rest of the law stands, or whether that provision is so essential to the statute that it unconstitutionality, once it is pulled out, the whole house of cards collapses. in the presumption is always in favor of severability. it is the question of your intent. i'm sorry, go ahead. chairman graham: the main thing is the doctrine of severability has a presumption to save the statute if possible, is that correct? judge barrett: that is correct. chairman graham: i want every conservative in the nation to listen to what she just said. the doctrine of severability presumes, and its goal is to preserve the statute if that is possible. so from a conservative point of speaking, wely
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want legislative bodies to make laws, not judges, is that correct? judge barrett: that is correct. chairman graham: would it be further true that if you can preserve a statute, you try to, to the extent possible? judge barrett: that is true. chairman graham: that is the law, folks. abortion.ett: -- chairman graham: abortion. your recent statements by i think, what is the name of the pro-life group? judge barrett: the st. joseph county right to live. chairman graham: and you were asked by senator blumenthal whom i respect whether or not their policy positions were illegal, the remember that? judge barrett: i remember him asking me whether i accepted other policy positions on in vitro fertilization and whether it was a rejection of roe. chairman graham: i remember an exchange where they took a statement from that group or some other group, arguing for the criminalization.
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remember that? the criminalization of ivf./ judge barrett: i think so. chairman graham: and here is my problem with that analysis. that was a position taken by a pro-life county organization. it is not your job to pass judgment on the thoughts and beliefs of americans, is it? judge barrett: no, it is not. chairman graham: so when they argue that something should be criminal, they have a right to make that argument, right? judge barrett: they do. it also wasn't in the ad that appeared next to the statement -- chairman graham: how do something become criminal in our legal system in america? judge barrett: when a legislative body passes a statute. chairman graham: so here is what i want you to know. statements by political organizations are not laws. and what we tried to do yesterday was turn a pro-life group into a legislative body.
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they tried to get you to rule on their beliefs. i think that is a dangerous thing for americans to be asking a judge to do whether it be on the right or the left. here is a statement from an organization i don't particularly agree with, and i want you to pass judgment as to whether or not that is legal. the question for you would be if some legislative body tries to criminalize this procedure, that would be subject to litigation, is that correct? judge barrett: that is correct. inirman graham: a case controversy does not arise because you disagree with a statement of a private person or a private room, is that correct? judge barrett: that is correct. chairman graham: a case in controversy arises when somebody passes a criminal statute, is that correct? judge barrett: that is correct. chairman graham: then, and only then would you determine the constitutionality of that provision, is that correct? judge barrett: not even then. the statute would have to be enforced against somebody so the prosecutor would have to try to hold someone criminally liable getting ivf, for
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for example. chairman graham: so it would have to mature. judge barrett: it would take quite a lot of maturation. i just want to: note it is not the role of a supreme court justice to pass judgment on your opinions. a supremerole of court justice in very limited circumstances to pass judgment on laws passed by legislative bodies in other circumstances, regulation, i would suppose. now, voting. a it appropriate for legislative body to protect the integrity of the ballot box? so, any specific measures that legislative bodies took to protect the integrity of the ballot box could be subject to litigation, subject to challenge. chairman graham: that's right. develop, the courts will hear cases and controversies arise, right? judge barrett: yes. chairman graham: one of the
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reasons we don't have an agreement with the houses because they are mandating ballot harvesting. as a national policy. pe for fraud, righ we have seen evidence of ballots being dropped in digits. i think there will be an effort, i hope, to protect the integrity of the ballot and also to ensure easy voting. idle think they are contrary goals for the nation. now, when it comes to being on the court itself, and collaborating with other members of the court, what has your experience been in the seventh circuit level? how has that played out? we allarrett: collaborate and had wonderful interactions with every single
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one of my colleagues. chairman graham: do you think you have the capability to fit in at the supreme court? judge barrett: i hope so. chairman graham: we talk a lot about laws, legalizing same-sex marriage, what is the name of the case? judge barrett: obergefell. chairman graham: if anybody tried to change that precedent, one of the things you look at is the reliance interest that people have formed around that piece of legislation. judge barrett: yes. chairman graham: same with casey and roe? judge barrett: yes. chairman graham: so reaching a decision that the case was wrongly decided doesn't end of the debate in terms of whether or not it should be repealed, is that correct? judge barrett: that is correct. chairman graham: and there is a very rigorous process in place to determine precedent. judge barrett: many factors, reliance being one. chairman graham: is there any constitutional right to a
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polygamist relationship? judge barrett: um, let's see. that might be a question that could be litigated. polygamy, obviously, in many places, is illegal now but that could be an issue somebody might litigate before the court at some point. chairman graham: if somebody made the argument is possible for three people to love each other genuinely and that would work its way to the court if somebody wanted to make that argument, is that correct? judge barrett: somebody could make that argument. chairman graham: you have been asked a lot about roe v. wade and casey and one of the differences in brown versus the board of education is there is active litigation regarding roe, is that correct? judge barrett: that is correct. chairman graham: i think a senator named eight or nine different cases that may come up to the court, cases and controversy. and one of the reasons you can't tell us how you would rule is because there is active
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litigation coming to the court, is that correct? judge barrett: that is correct. chairman graham: and one of the reasons you can say with confidence that you think brown v. board of education is a super precedent is you are not aware of any effort to go back to the good old days of segregation, is that correct? judge barrett: that is correct. i've also said in lectures that brown was correct on the original matter, so that is the kind of thing that i felt i could express before the committee. chairman graham: when it comes to heller, there is legislative bodies all over the country passing laws regarding gun ownership, are you aware of that? chairman graham: i am aware of that. judge barrett: when it comes to citizens united, i think there will be some effort after the selection to maybe revisit that case. the thing that i'm trying to establish here is that heller, citizens united, roe, casey, are all actively being litigated because legislative bodies are playing in that arena, is that a fair statement? judge barrett: that is a fair statement. sen. graham: your point to us is
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that when it is likely that controversies around the holding of a particular case are going to come to the court, there's only so much you can tell us about what you may or may not do. judge barrett: absolutely. wadegraham: roe v. compared to brown v. board of education is not super precedent. judge barrett: not super precedent as i was using that term in the article that of them referred to. sen. graham: let me tell you from a commonsense point of the white is not super precedent. i have legislation, 14 states have passed a law that i'm trying to get past that here that in the fifth month of the, 20 weeks, an unborn child is capable of feeling pain. i'm making the argument there is a compelling state interest to protect that unborn child from that very painful death: abortion. -- called abortion. only seven nations on the entire planet allow abortion on demand in the fifth month. that is a political exercise we are going through. 14 states have passed a version of what i've just described.
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that will be coming to the court i imagine in the future. listen tois that we both sides of the argument if it gets to you. judge barrett: i will. sen. graham: thank you. can say, i have met a lot of people, their impressive people. one of the highlights of my time on the committee is to get to meet incredibly talented, smart, squared away people. righte roberts sat before you and did not have a note. a lot of people on my side were up to that with him about this or that. i do know this, that he is doing what he thinks is best for the court and for the country. justices sotomayor and taking, delightful people, incredibly, wickedly smart. justice kagan had a biting sense of humor and they are on the court because they should be. they are on the court because
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they live lives worthy of being on the court. they are on the court because there are some of the smartest people in the land about the law. they are on the court because they have lived incredibly productive and meaningful lives. justice gorsuch and kavanaugh are both on the court for the same reasons. you, you are every bit in their league. view, this is exactly where you should be going to the supreme court. the united states of america will benefit from your participation at the supreme court. you will have life experiences that will round out the court. and you are going to inspire a lot of young women just like justice ginsburg did, just like justices sotomayor and justice kagan did, and the young women
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that you're going to inspire don't have a whole lot of role inels they can point to terms of the media world in which we live in uplifting them. that's about to change. colleagues, iic understand where you're coming from, i understand what you want the court to do. you want the court to do things differently than we do. i don't question your motives and i want to thank you for conducting this hearing and a way that has been respectful, that has been challenging, and the process will be moving forward here. from the committee's point of view, i think we are on track to do it in a way that hopefully, people will say even though you you are notrongly, that disagreeable. senator feinstein. feinstein: judge, i must
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say i'm delighted to see your family here again and i hope they feel that very special sense of pride in you. i'm sure they do. know, i was you thinking of my children and grandchildren and this is really a once-in-a-lifetime occasion. so, i hope they find it very special in their lives. judge barrett: thank you, senator. sen. feinstein: you're welcome. yesterday, you spoke of texas, the current case seeking to strike down the affordable care act. think, that the issue before the court is severability. meaning where the court could still uphold the affordable care act if it rules that the individual mandate is unconstitutional. and you said yesterday this question was not before the court. as i understand this, chief justice roberts and the majority
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did involve the issue of severability in a case known as the nfib, national federation of independent businesses. are the chief justice in the 5-4 majority that struck down one part of the law, the medicaid expansion provision. but allowed the rest of the law to stand because they found it was severable from the portions they struck down. justice scalia dissented from this conclusion, stated that " the unconstitutionality of the individual mandate and the medicaid expansion requires the invalidation of the affordable care act's other provisions." in other words, the justice believed that the law was not severable and the entire law had to be struck down, including
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provisions protecting people with pre-existing conditions. you have been close to the justice's philosophy and in these hearings, you've also said that this doesn't mean you would redraw the same conclusions. today howplain to us you would disagree or agree with justice scalia's views of severability in that nfib, national federation of independent business case? idge barrett: what i think can say without expressing disagreement or agreement for the reasons i've said yesterday, not being able to great , first of all, the majority holding, as he recognized, was that even though the medicaid provision was unconstitutional, it was severable. justice scalia expressed his view in dissent. view,y justice scalia's
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the issue would be different in california versus texas. for two reasons. ought toice scalia provisions of the constitution were unconstitutional, so if you pictured severability being like pull oneame, if you out, can you pull it out while it all stands? scalia, his view was that if you pull bows two provisions out, could it still stand? here we are talking about one. also, congress has amended the statute since an of iv --nfib. california versus texas involves a different provision because of the zeroing out that was done by amendment. so that is have a two cases present slightly different issues. sen. feinstein: what do you think of all that? judge barrett: what do i think of -- severability? sen. feinstein: judge barrett: in that instance.
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i think the doctrine of severability as it has been described by the court serves a valuable function of trying not to undo your work when you wouldn't want a court to undo your work. severability strives to look at say,tue as a whole and what congress had considered this provision so vital that pulling it out, congress would want the statute anymore? it is designed to effectuate your instance. severability is designed to say well, does congress still want the statute to stand even with this provision gone? would congress still passed the same statute without it? i think insofar as it tries to effectuate congress would have wanted its support in congress working hand-in-hand. sen. feinstein: thank you, that is quite a definition, i'm really impressed. thank you. some have argued that the medicare program is , it is antional
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unconstitutional exercise in congressional ending power. they believe that the spending power does not exist at all. in talking about medicare and mikel security, professor -- of the university of san diego law wrote this. it is worth remembering that these programs would never have taken their pernicious forms if the constitution's original meaning had been followed in the first place. originalistswith who say that the medicare program is unconstitutional, and if so, why? judge barrett: i'm not familiar with that article so i don't know what reasoning advances for claiming that the sending power as exercised in things like the medicaid provision being unconstitutional. and feinstein: it is in law liberty, july 23, 2015. but the question is, do you agree with originalist who say
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that the medicare program is unconstitutional? judge barrett: well, let's see. can't answer that question in the abstract because as we talked about, no forecast, no previews. i also don't know what the arguments would be. so i assume the professor lays out a case. but it is not a question i've ever considered before but if i did consider it, it would be in the context of an actual case or controversy. sen. feinstein: it is hard for me to believe that that is a real question, because i think the medicare program is really sacrosanct in this country, but let me ask you, last april in the midst of the covid-19 pandemic, the supreme court prevented wisconsin from implementing it district court order that would have extended the state's deadline for submitting absentee ballots. this would have given voters
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greater flexibility in casting absentee ballots for wisconsin's primary election. justice ginsburg dissented. she criticized the court's majority for putting its head in the sand with regard to the risks posed by covid-19. she emphasized that courts and election officials must be able to a brave, rapidly developing public health crisis, and she noted that the supreme suggestion that the current situation is not substantially different from an ordinary election boggles the mind." would you agree, and what is your position? judge barrett: senator feinstein, that is obviously a very recent case. in that case, the court had to address the constitutional questions. and so again, it is one of those
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things that i can't answer both because it would be requiring me to grade and express agreement or disagreement with the supreme court opinion, but also it is the kind of case that could come form a closely related either on the seventh circuit in wisconsin is within the seventh circuit distribution, or the supreme court. sen. feinstein: ok, let me try again with something. after president trump announced your nomination to the supreme court, you discussed the judicial philosophy of the late justice antonin scalia. specifically, you stated his judicial philosophy is mine. during oral arguments in the 2013 case shelby county v. holder, justice scalia questioned the strong congressional support for reenactment of the voting rights act. he argued that the support was not attributable to the fact that we need the voting rights
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act. rather, he stated that he believes congress reenacted the "phenomenon called perpetuation of racial entitlement." this,s your reading of and your understanding of the history of the voting rights act? judge barrett: well, when i said that justice scalia's philosophy is mine, i certainly didn't mean to say that every sentence that came out of justice scalia's now for every sentence that he wrote was one that i would agree with. when i said justice scalia's philosophy is mine, too, what i meant was that his jurisprudential approach as we talked about originalism and textualism is the same that i would take. i for the voting rights act, think that it was obviously a triumph in the civil rights movement. well, yourein:
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hted in myhile rig mind, my view is that we always need this. this is the ball work of our democracy. to me, i think it is something that may be somewhat subjective. do you agree with that? judge barrett: that need is subjective? sen. feinstein: that i think we do need a voting rights act and it is subjective in that sense. think theett: well, i question of how the coverage formula is calculated and the voting rights act and the contours of the voting rights act, whether shelby county was rightly decided or not, are all questions on which i can't give an answer because shelby county has obviously been controversial, it is likely to be really negated, icad, before me on the court. litigated, it is likely to
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come up before me on the court. this isnstein: i think really important because it shows the basic philosophical bent of an individual. for me, the voting rights act is extremely important and it defines our election system to a great extent. understandfor me to that anyone would want to do away with it. what is your position in that regard? judge barrett: as i understand shelby county, it said that the coverage formula was outdated from the 1960's for subjecting the particular states requiring them to get preclearance. it is my understanding, and i haven't looked at the case in a while, that everything else about the voting rights act remains intact including its prohibitions on discrimination in elections.
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decided which states were subject to preclearance. sen. feinstein: let me ask you this question, and this is a hard one. do you agree with justice scalia's assertion that the voting rights act is a "perpetuation of racial entitlement?" judge barrett: senator feinstein, i don't obviously know what justice scalia was thinking when he said that. and any characterization of the a statements act or like that is simply really not something i can opine on. know, that is tied in, i would think, with the shelby county question. sen. feinstein: i'm not asking for a formal opinion, but we do believe that it is a perpetuation of racial entitlement? judge barrett: i think that goes to the question of whether the coverage formula was outdated and needed to be updated from the 1960's or not. i take that to be the thrust of
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the disagreement in shelby county and the position that justice scalia was taken. again, i can't express a view on shelby county. sen. feinstein: ok. let me move onto to workers rights and age discrimination. case, you joined a majority of the seventh circuit judges and holding that age discrimination in employment does not protect job applicants against employment practices that have a disproportionately harmful impact on older applicants. the opinion you joined as i understand it dismissed the claims brought by a 58 euros lawyer who was passed over for a job that was offered to a 29-year-old applicant with less experience. implicationsy the of this decision.
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aarp, approximately 35% of the united states population is now 50 years or older. almost 29% of households are headed by someone near or past retirement age have no savings or pension. study after study has shown age discrimination "remains a significant barrier for older workers." an older applicants are more frequently denied job interviews than middle-aged applicants. additionally, older and middle-aged women are subjected to more age discrimination than men. the eeoc has found that the great recession during president forced administration " many older workers to revive their retirement plans to work
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longer to recoup drained retirement accounts and lost savings." the question, because i think it is going to be an increasing problem. understand to be the purpose of age discrimination, of the age discrimination in employments? judge barrett: in clever versus sion, that was a case that we heard as a full-court and the question is whether the prohibition on age discrimination covered applicants or only employees. employees,tute said and so in applicant's and an employee. so the majority said that the statute by its turn did not cover the conduct. but i think that is an instance, i talked yesterday quite a bit about whose role it is to update
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statutes or extend than anything that is an instance in which congress could well address this problem to include applicants in it. sen. feinstein: so, where would you stand on the general subject matter? judge barrett: well, since i can't impose the law, that would be up to the congress to decide. different prohibitions offer even more protection. sen. feinstein: let's talk for a moment. in 2013, you wrote "i tend to agree with those who say that a justice's duty is to the just moreon and it is legitimate for her to enforce her best understanding of the constitution rather than a precedent she thinks clearly
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it."icts with if you are presented with a case where your view of the constitution conflicts with whatme court precedent, would control your decision? your understanding of the constitution, or precedent? judge barrett: senator feinstein, i'm really glad that you brought that up because that quote was mentioned a lot yesterday and i'm happy to have an opportunity to put it in context. article, i think there has been some misunderstanding perhaps because that sentence, percival, is citing a footnote to both, and originalist scholar and a progressive constitutionalist. the whole article was defending the correct doctrine which, of course, constitutional precedent , weaker than statutory precedent and i mentioned that
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yesterday. against claims that we should have no doctrine of stare decis is at all and against claims that completely tied the court's hands. i actually wasn't arguing for i was saying this is how it is, this is how the supreme court does it, and that is right. another might put my perspective and context. i set a new majority cannot impose its vision only with votes. must, now i'm paraphrasing myself, it must be very sure that its interpretation of the constitution is the right one and that reliance, interests, etc. don't counsel in favor of its overruling, paraphrased, and then the next sentence was something to the effect of an uncertainty in that regard councils in favor of preserving the status quo. so that sentence if it is just read alone makes it sound like
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i'm arguing for the over all of decisis in general, but that was not the thrust of the article, quite to the contrary. sen. feinstein: thank you very much. we all welcome the fact that your family is here, it is a beautiful family. judge barrett: thank you. sen. graham: thank you very much. senator grassley. don't start the clock yet. he's not ready. bucks, i will start the clock. [laughter] sen. grassley: judge. sen. graham: start the clock. [laughter] sen. grassley: welcome back. judge barrett: thank you, senator. sen. grassley: i want to compliment you for doing a very good job answering these
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questions and all about your decision-making process. you've been forthright, candid, thoughtful. you've demonstrated a tremendous command of and respect for the law and constitution. that yourwn us judicial method is rigorous but also fair and open-minded. above all, it is clear that you understand the appropriate role of a judge, just what we are looking for, at least, on the side of the aisle. an individual who will interpret the law, not want to make it. you are an outstanding candidate. a couple things before i ask my questions. many of my colleagues on the other side have tried to get you to tell us how you would rule on a case. case wasou believe a correctly decided.
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or rather you will commit to uphold a specific law. responded, it is not appropriate for you or any nominee in your position, for any level of the judiciary to make promises or give hints on how you would rule or what you think about a potential issue that may,. -- that may come up. judicial independence, those are our political branches accountable to the people. a bedrock principle of our constitutional system. best, aginsburg said it judge is sworn to decide noartially and can offer guesses or hints because that would show disregard for a particular case. and she also said you can't dissuade distain or display
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distain for the entire judicial process. you have not that made any promises to anyone about how you might rule on a case. that is because you know that a judicial nominee should never promised votes in exchange for a president's nomination or a senator's support. yesterday andaw to some extent, monday, democrats' st rategy continues to be to use scare tactics, distortions and speculation. they are framing you as a real threat to health care coverage and especially protections for existing conditions. this was all a charade.
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, it because of your comments believe, just from one long review article you wrote, critiquing chief justice roberts' reasoning. so it is time to get real. this is all just a distraction. this is what we saw monday and tuesday. democrats want to distract from the fact that they don't really care about obamacare. you heard that since democrats started their presidential primaries probably about two years ago. they want government-run medicare for all. that's what you have heard in the democratic primary. acachanges they seek to the move america closer to a single-payer system where the government provides or subsidizes health care for all
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americans. which we know, eventually, leads to government rationing of health care. distract from to the fact that they just billustered a covid relief that would have protected .re-existing conditions they, we will see if they will vote for a covid recovery bill that leader mcconnell has scheduled for a vote next week. democrats want to distract from the fact that republicans, yes, republicans have introduced bills to protect americans with pre-existing conditions and to bring down drug prices and if we act, they don't have to worry about you doing away with pre-existing conditions in some future case down the road. opportunityen the
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to finance bipartisan prescription drug pricing reduction act, that of the grassley-whitinsville, democrats at schumer's command walked away because they wanted election-year issues. republicans passed and signed into law bills to end pharmacy e clauses and to end abusive drug tactics that prevent lower-cost generic drugs from coming to market. democrats want to distract from the fact that president trump and the administration have taken steps to help lower health care costs for americans including finalizing a rule to allow the importation of prescription drugs from canada. and proposing a rule to facilitate the purchase of epipensle insulin and for lower income americans. the president signed an .xecutive order
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further, i and other republicans have been working with the administration to increase the end drug prices, to step up enforcement of anti-competitive activities, and the prosecution of bad actors in the health care and to improve and expedite regulatory approval of drugs to combat covid and other diseases. here is the bottom line of what we have all heard monday and tuesday. the democrats cry foul over anything that may help americans if it doesn't advance their agenda for medicare for all. and the american people deserve to be reminded of this hearing, what it is all about. it is all about your qualifications to be on the supreme court. it is not about health care advocacy. judge, democrats want
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to distract from the fact that you are eminently qualified for this position you been nominated for. and they don't like it that you know that the place of the laws, is not to rewrite as you might see fit. here's the bottom line. yesterday if it is your agenda to repeal the portable care act. you said "absolutely not." you said you have never made a commitment to anyone on the affordable care act or on any thing. you have never been asked to make such a commitment and you made very clear you would never make such a commitment. to put some, i want
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letters in the record from state legislative leaders supporting this nominee. sen. graham: without objection. now, you won't get away without asking some questions on something that i'm very interested in. i would like to discuss a law that i brought up with you when we talked for a short time one-on-one. we didn't discuss it at that time. the false claims act. legislation toed make false claims act and effective tool to combat fraud against federal programs. this law enlisted the help of private citizens to enforce the false claims act. in 2000, the supreme court deemed false claims provisions constitutional. as you know, false claims act
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emerged as the government's primary weapon against fraud. since we restore the law in 1986, false claims actions have recovered $68 million of taxpayer money fraudulently taken with $50 billion coming from was lower-initiated action. congress has remained vigilant to protect the false claims act from attempts to weaken it in the courts. have you ever written or spoken publicly about the constitutionality of any other provisions of the false claims act and if so, what were the circumstances or the context? grassley,ett: senator i don't recall ever speaking about the false claims act or the constitutionality of the provisions or any other part of the act. i can't think of a time when i have. judge barrett: do you have any preconceived ideas about the false claims act or was lower protection act that would impact
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your ability to impartially decide any cases involving those issues? judge barrett: i do not. any case involving that act i would approach with an open mind as with any other. sen. grassley: some opponents of the false claims act argue that provisions are unconstitutional under article two and three. are you familiar with these legal arguments and if so, do you have an opinion on them? well, thoset: aren't ones that i can express an opinion on because as you say, it has been up for the court. sen. grassley: another interest of mine that i probably a 87 years of age won't live long enough to see done, but i've discussed cameras in the courtroom and introduced legislation on that over the last 15 years. it's not a very popular subject. -- would have to roll over his dead body before they put
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cameras on the supreme court. i can respect that point of view, but i totally disagree. think that allowing cameras in the courtroom would open courts to the public and bring about a better understanding of the judiciary. for many years, that bill i have been introduced as been called the sunshine in the courtroom act, a bill to give judges the to allow immediate coverage of federal or proceedings. i'm also a cosponsor of senator durbin's bill to allow cameras in the supreme court. i understand that the seventh circuit court of appeals were you currently serve adopted procedures to allow requests for video recording of oral arguments as well as the public release of the recordings. judge barrett: that is correct. sen. grassley: as your court had any problems with these proceedings? what are your views on allowing cameras in the courtroom? if confirmed, would you keep an open mind about allowing cameras in the spring work? judge barrett: i would certainly
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keep an open mind about allowing cameras in the supreme court. sen. grassley: i always ask court,district circuit supreme court this question about international law. i would like to get your views on how and when you would apply international law to your decision-making process. is it ever appropriate to cite international law when interpreting the u.s. constitution? judge barrett: i would never want to say never because he is certainly possible. generally speaking, so it has issues with-- the which foreign law has been applied, and there is a debate about it, is when the court is trying for the lower court is trying to identify what is the nature of a right that is part of the tradition of the people, or that the people, what would people do? in my view of the united states constitution, it is the fundamental law of the american
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people. i don't think it would be controlled by the laws by other countries because it requests the fundamental commitment that we as an american people have made. sen. grassley: thank you very much, i reserve my time. sen. graham: i apologize, senator leahy. out of sight, out of mind. i apologize. >> can you hear me all right? sen. graham: yes, sir, loud and clear. incidentally, for those who are watching, to listen to what senator grassley said about oferas in the courtroom, course, i agree with him on that, and he knows i've supported that.
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i've also joined a few false .laim act proponents there aren't many areas in a committee were senators have worked together and i would ask that the chairman allow a letter from 10 former federal judges who are opposed to the process of this nomination. the letter of opposition for the people for united way, and 208 women lawyers. sen. graham: without objection. >> somebody has got to hand you those letters, i can't quite reach. from my room here. barrett, it is good to see you again.
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again, i commend your children. then,re this is passed i'm it is important that we have these questions. we are getting told that no one could possibly know how you would rule in the latest republican-led case overturning the affordable care act. but what we do know is that you've criticized chief justice roberts' opinion. you stated that "roberts pushed the aca beyond its plausible means to save the statute." and then you. -- so it seems every time you weighed in on legality of the statute, you come to one conclusion, the affordable care act is unconstitutional. over the past two weeks, you've
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provided this committee, all of us with 1800 pages of your writings and speeches for us to review, and i have. i may have missed something in that, but did you ever write or speak out in defense of the aca? judge barrett: senator leahy, i just wanted to make one correction, -- wasn't a case about whether the if care act was constitutional or not, that one was purely a question of statutory interpretation. just to make clear about that. in a radio interview i said that i thought the dissent had the better of the statute of interpretation argument. i have a couple things that maybe might help shed some light on this question. one is that of course in both of those contexts i was speaking as an academic. and as i mentioned yesterday,
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an academic serves a very different function than a judge. an academic did not go through the judicial process, doesn't hear the case or controversy, the writing of an opinion -- sen. leahy: we all understand that, but that is not my question. my question was did you ever write or speak out in defense of the aca? ever as an academic or as a member of the judiciary? it is a pretty simple question. could you answer yes or no? judge barrett: no, i've never had occasion to speak on the policy in question. sen. leahy: every time you have weighed in on it, you have said the law is unconstitutional. judge barrett: no, sorry, i thought you were done. sen. leahy: in the courtourt,
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under severability standing, constitutionality, in -- you have not written on the severability of the aca, have you? judge barrett: i have not. sen. leahy: here's a quote i am sure that you are familiar with, it has been used in the last few days. "throwing out preclearance when it has worked has continued to work to stop discriminatory changes is like throwing away your umbrella away in a rainstorm because you are not getting wet." have you heard that quote before? judge barrett: i believe that quote is from a dissent in shelby county. sen. leahy: by justice ginsburg?
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judge barrett: i believe that is correct. sen. leahy: it was. she was talking about and warning about striking down section five of the voting right's act. shelby county was almost like immediately, after shelby county came down, the state started making changes. 20 states enacted new restrictions on voting. some of those restrictions have been her in this. horrendous. do you know how many polling places that have arbitrarily been closed across the country since the shelby decision? judge barrett: i do not. sen. leahy: at least 1600. following the shelby decision, do you know how many, how many voters were purged from voting rolls? judge barrett: i do not know. sen. leahy: roughly 60 million,
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that is about 30 time the population of my state. african-americans with felonies are four times more likely to be disenfranchised than other americans with penalty convictions. and non-white voters are now seven times more likely to wait in line for an hour than -- -- black voters wait longer in line than white voters. i mention this because it is a picture of dekalb county in georgia. look at the lines. african-americans make up the majority. look at that line. i suspect neither you nor i have had to wait in line like that to
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vote. in fact, the press reported that, today, those lines could be 10 hours long. people talked about well, are we giving racial entitlements? this is not entitlement for any americans, this is not entitlement. this is turning our back on democracy. this is saying you cannot vote, or we are going to make it so difficult to vote that you cannot. harris county, in texas, which has a population many times that of my state has one early voting spot. people have to drive for hours and wait in line for hours to get there. would you accept the fact or would you acknowledge the fact
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that communities of color disproportionately face restrictions and obstacles when they are casting their ballots? judge barrett: senator, i was not aware of the statistics that you are citing. if it became relevant in any case that was litigated and presented to me i would have an open mind about it. sen. leahy: i talk about this. i know that you have spoken, much like former justice scalia, who was a friend of mine. but i disagreed with him on many things. he talked about racial impediment. it is not racial impediment when blacks have to stand in line for 10 hours to vote. and justice ginsburg of course
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dissented in shelby, she knew what the consequences would be. i only mention that because it is ok for a judge not to close his or her eyes to reality. now i asked you last week what would a justice barrett would do if a president or senator did not follow the despairing court -- supreme court decision. you declined. i then asked if the supreme court would have the final word . as far as the lower courts are concerned, and that surprised me and it concerned me, and i will tell you why. i asked justice gorsuch and justice kavanaugh those questions and they made it clear that a president cannot refuse to comply with a court order and the supreme court's word is the final word on the matter. that is what justice gorsuch and justice kavanaugh said.
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so i would ask you this, do you agree that a president must follow a court order and the supreme court's word is final, or is it only final as far as the lower courts are concerned? judge barrett: i am glad to have the opportunity to clarify from our conversation. first, i know that justice gorsuch and kavanaugh said no man is above the law, and i agree with that. but i conversed with senator lee yesterday about federalist 78 that said that courts neither have forced nor will, in other words we cannot enforce our own judgments, and what i meant in the conversation with you, that as a matter of law the supreme court may have the final word, but the supreme court lacks control about what happens after that.
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the supreme court and any federal court has no power, force, or will, so it relies on the other branches to react to its judgment accordingly. sen. leahy: i remember the young law student having lunch with the honor society and members of the supreme court. i sat with justice hugo black. he talked about brown v. board of education, and the court knew that that would be a tough case, and what did they do? they waited until they had the unanimous opinion, because that they knew that the president and the congress would have to enforce their law. so, let me ask you this.
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of course the supreme court has no army or force, but they have the force of law. is a president who refuses to comply with a court order a threat to our constitutional system of checks and balances? judge barrett: i think the example of brown is a perfect one in this instance, because the supreme court in brown held that segregation violated the equal protection clause, and that was the law. as you know, there was resistance to that decision. it was not until the national guard came in and forced the governor to allow desegregation that it could happen because the supreme court could not do so itself. and in cooper versus -- sen. leahy: i understand that, but they made the order. and, if a president refused to follow, could that be a threat to our constitutional government? judge barrett: as i said, the
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supreme court cannot control whether or not the president obeys. abraham lincoln once disobeyed the order during the civil war of a circuit court. the court can pronounce the law, but it lacks control on how the political branches respond. sen. leahy: president trump claims he has an absolute right to pardon himself. now, for 200 years the supreme court has recognized common law principle that nobody can be a judge in their own case. i had to go way back and reread , an old case bowl to see that. but would you agree first, that nobody is above the law, not the president, not you, not me, is
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that correct? judge barrett: i agree, no one is above the law. sen. leahy: does the president have an absolute right to pardon himself for a crime? question after president nixon's impeachment. judge barrett: so far as i know that question has never been litigated or arisen. that question may or may not arise, but that is one that calls for legal analysis of what the scope of the pardon power is, because it would be opining on an open question when i have not gone through the process to decide it, it is not one that i can offer a view. sen. leahy: but you will say that nobody is above the law. i find your answers somewhat
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incompatible, but you have a right to say what you want. now, you are an originalist. can you explain why the framers included the foreign and domestic and emoluments clause. judge barrett: i can speak to the well accepted view that it is designed to prevent foreign influence in government affairs. sen. leahy: it is sort of the anticorruption clause in the constitution. it is sort of the anticorruption clause in the constitution. judge barrett: i do not know if i would clarify it as an anticorruption clause, i would clarified as i did.
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it is designed to prevent foreign countries from having influence. sen. leahy: i was thinking at the constitutional convention, governor edmund randolph said that the clause was to prohibit anyone in office from receiving or holding any emoluments from foreign states, and now we find that 200 companies and foreign governments have patronized trump properties at the same time they were getting benefits from him and the administration . the first two years of his presidency, he earned $73 billion for his properties abroad, and as an originalist, as you are, do you think these companies and foreign
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governments would have fallen within the framers' zone of concern? judge barrett: the emoluments clause is under litigation, there was a fourth circuit case that recently involves this question. as a matter that is being litigated, it is clear that that is one that i cannot express an opinion on, because it could come before me. sen. leahy: i found it interesting what you have about the president, and see that you are willing to depart from it and as a justice, i suppose you can do what you want, but in the june medical services, chief justice roberts joined the majority and struck down a louisiana law restricting access to reproductive services even though he had dissented in
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a previous case striking down a very similar texas law. he said the legal doctrine requires this, and in special circumstances to treat cases alike, so having been on the losing side in the first one, he took that position in that case. do you agree that he demonstrated commitment to stare decisis in this case? judge barrett: no justice that i am aware of throughout history has ever maintained the position that overruling a case is never appropriate. as you probably know, there is a supreme court case that said that states could criminalize sexual conduct between same-sex couples, and lawrence versus texas overruled the case. plessy versus ferguson was cedent and- pre
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brown v. board of education overruled it. the supreme court has always said that in some cases, overruling precedent is the right course for the courts to take, but that is not done willy-nilly. sen. leahy: i urge you to look at what justice roberts said about the opening of the smithsonian about precedent. i will submit a question to you, because what restrictions have you seen under executive order to conduct surveillance activities that have not been authorized by congress, i asked that because senator lee, i, and others have done a lot of legislation on surveillance, and now we question whether that is being ignored. so i hope you will take it as a
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serious question and answer it for the committee. judge barrett: thank you. >> we will make sure that it happens. sen. cornyn: i would like these letters in my hand to be part of of the record, please. >> without objection. sen. cornyn: i would like to wax philosophical with you for a few minutes, and you do not need your notepad. i just think that there has been so much discussion about the role of judges and the role of the political branches. i think maybe it is worth going back to first principles. and, to me but most important first principle is in the declaration of independence. it says, "we hold these truths to be self-evident that all men are created equal, endowed by their creator with unalienable
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rights, among these life, liberty, and the pursuit of happiness. to secure these rights governments are instituted among men," and here is the one that i want to emphasize "deriving their just powers from the consent of the governed." now, you and i talked about consent of the governed as being the foundational foundation of a legitimate government action. do you agree with that? judge barrett: i do. sen. cornyn: does that inform your philosophy when it comes to the role of judges and political branches, like the congress? judge barrett: it does. sen. cornyn: i had the privilege of serving on the state court bench for 13 years, so when i came to congress i had never served in the legislature. it was quite an eye-opening experience for me. for example, after one vote on
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the senate floor, after the vote was over, one senator got to the microphone and said now for a little legislative history. that was shocking to me, but you understand what i am getting at, and one reason i appreciate your and justice scalia's approach to an emphasis on the text rather than legislative history, this is a way for some who lost the vote to try and tilt the scales of justice in their favor by adding from a legislative history, and then imagine my shock when i served as i do now on the finance committee when we mark up legislation in the finance committee, we do not get to look at legislative text it is kind of surreal.
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they call it a notional markup, in other words, we end up voting on a notion or concept and somebody in the council's office writes up the text. very strange. and then, there is this issue of i know in the judiciary in the legal profession there has been a big movement for plain language so people can understand clearly that you have to unlearn the lessons you learned in law school, particularly writing on law reviews and the like where you seemingly are rewarded for this really obtuse impenetrable language, where if you use latin phrases and things like that. but the plane language movement in the legal profession strikes me as an important movement and i yearn for those days when perhaps congress can embrace that so we can speak more clearly so people can understand it, and not delegate our
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legislative responsibilities to staff. but i also was struck by the fact that one of the reasons that cases get litigated is because of the failure of the congress to build consensus for legislation. to me, the affordable care act is one example. when either side pushes through a partisan piece of legislation, it is not realistic to expect that the fight will be over. it will just move to a different form. it will move to the courts. that is not what happened on things like medicare and social security. that was brought by partisan consensus, in other words , members of congress did the hard work to find the consensus so they did not have to hand it off to the judiciary. unfortunately, i think we have seen the tendency in recent years to do exactly that, where congress has abdicated its responsibilities, figuratively,
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they have pulled the pin on the hand grenade and handed it to the judiciary. and say, you figured out. and maybe, that is one reason why these judicial confirmation hearings have become so contentious, because people see the judiciary as the ultimate policymaker. and, and we quoted justice scalia talking about the value judgments of justices and judgments versus elective representatives, and they say there is no reason to think that value judgments are any better than those of the citizens that ultimately with whom resides the ultimate legitimacy and political power and, of course, the most fundamental difference between the one you currently hold and the one you will hold on the supreme court is the notion of accountability.
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as a judge, you serve for lifetime tenure, correct? you do not have to stand for election or raise money, or consult polls, focus groups? judge barrett: no. sen. cornyn: how do you decide a case if you do not console with public opinion polls or consult a case? judge barrett: the reason we have life tenure is to be insulated from the pressure that such things like focus groups or public opinions might pressure that it might apply for a court to decide a case, one way or the other, that is why we decide it according to the text. sen. cornyn: there are various
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rules of the road, so to speak for how the judiciary approaches cases, right? in other words, perhaps the most fundamental difference is that rather than making broad policy pronouncements, you decide cases, correct? judge barrett: that is correct. sen. cornyn: i am struck by an article by justice ginsburg and i forget what year it is, where she talks about roe v. wade, and she talks about what she called the breathtaking decision. versus, the court's more cautious dispositions. "she says suppose the court had stopped after rightly declaring unconstitutional a portion of the law and had not gone on as it did to fashion a regime blanketing the subject, i set of rules that displaced virtually every state law that enforced. would there have been a 20 year controversy?
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we have witnessed and reflected most recently in the splinter decision in planned parenthood versus casey, might it have served to reduce rather than fuel controversy?" i think what she was saying is when the court stepped in and basically takes over by stating a constitutional rule, it really prevents the very people who were elected by voters from making policy, correct? judge barrett: correct. sen. cornyn: there are other requirements other than controversy that keep the judiciary in its appropriate lane, things like standing requirements. judge barrett: yes. what is standing? judge barrett: standing means that you cannot just come to court and say because you dislike senator graham's fetal
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pain act you cannot just walk in and say i do not like that and i think it is unconstitutional. standing means that you have to have suffered what the law calls a concrete injury so it has to have affected you in some way. so, that means that there are real litigants with a live controversy before the court, and people cannot error policy disagreements only. sen. cornyn: there is a requirement of rightness? judge barrett: it means there has to be a live controversy. you cannot file a lawsuit until it is ripe meaning that the injury has actually come to fruition and come to pass. sen. cornyn: by the time you see it on the circuit court, the case has already had to been tried by a trial court, correct? judge barrett: that is correct. sen. cornyn: and then there is a record, right? and, what encompasses a record
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that the trial court prepares that you review as an appellate judge? judge barrett: they will be factual parts. if there was a trial, there will be lengthy transcript of the trial. a district court makes a number of legal rulings in the course of the case so the court may have ruled on a motion to dismiss and whether the law even permitted this or gave the plaintiff a valid claim. the court may have ruled on a motion for summary judgment, which is an evaluation of whether the plaintiff or the defendant could win the case without going through a full trial because the law was clear enough. so there are many things along the way. evidentiary rulings, a factual record that develops and in some instances, quite long. sen. cornyn: you cannot go outside the record cans you? judge barrett: the record cannot be expanded on appeal.
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sen. cornyn: that is true in the supreme court? judge barrett: yes. sen. cornyn: all of these rules of the road, i will call them, things like the case controversy --uirement, righteousness, ripeness, being confined to a record that is then the sole focus of a review. are all of those sort of indications of how the judicial decision-making process is different from the legislative making process? judge barrett: yes, and it can take years for a case to wind itself through the process. as opposed to policymakers who do not have to wait on real disputes and the parties get to shape the case they are way, they decide what legal issues they will contest that narrows what the court can do. policymakers, if you had enough
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agreement to pass something, you could do it in one day, and just enact the law and the policy, and that is not how judicial decision-making works. sen. cornyn: i know you have followed the same rule in justice ginsburg in justice -- in not expressing opinions on cases that might come before the court. is this another practical reason why you cannot predict how you will rule in the future? you do not know what the facts of the case may be, you do not know what the issues and controversy might be, so how in the world can you sit here and a --simply tell us about what your policy will be without knowing all of that? judge barrett: i could not, and when justice ginsburg said it would show disregard for the judicial process and litigants, she said it would signal to litigants all of the briefs that you file in a case does not matter because judges have a gut reaction and they know what they
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think, and this is all just going through the motions. but that is not how the process should work, or does work. sen. cornyn: there is no reason to believe that a judge's gut reaction is better than american citizen's reaction? judge barrett: no. and in the judicial process , as i described a little bit yesterday, a judge needs to have an open mind every step of the way. as i said, i changed my mind even after reading the brief. i changed my mind at conference after consulting with my colleagues. so, if i were to say how i thought i would resolve the case because i saw the issue, it would be short circuiting that process through which i could be open to persuasion. sen. cornyn: i do not see any of the big charts about individuals that were the subject of the stories that our democratic friends were telling yesterday. maybe we will see them later.
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>> or maybe right now. sen. cornyn: to me, the idea that some case that you might decide in the future that you have not had a chance to go through this analysis of and predicting how you might rule in the case, is that even possible? judge barrett: it is not possible because i do not know changedmy mind could be at some step along the way. and if i did it, i feel like i would be a legal pond and -- legal pungent commentating in real time and i do not think anyone wants judges to function that way. they want judges to take this seriously and do a lot of research and keep an open mind. sen. cornyn: where does it authorize a judge to be a legal pundant and make policy
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pronouncements separated from all of these requirements? judge barrett: article three prohibits it, and as far as -- if there is no real opinion in front of you, then you cannot just offer an advisory opinion that is not the resolution of a case to express your view in law. sen. cornyn: it is not fair to suggest that by confirming you to the position, this will adversely impact the lives of these individuals? judge barrett: what i say is that i certainly have no agenda. i am not on a mission. i am not hostile to the aca it all, and if i were on the court, and if a case involving the aca came before me i would approach it with an open mind like i do every case and go through the process we just discussed. sen. cornyn: referring back to what justice ginsburg said in
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this article, if judges restrict themselves to deciding cases and controversies as opposed to making broad policy announcements and displacing legitimate dispute, debate, negotiation and legislation, does that encourage more litigation and dissension, or does it resolve it? judge barrett: without commenting on what justice ginsburg said about on roe v. wade. sen. cornyn: i am not talking about that. judge barrett: the requirement in so far that it ties the court to particular litigants and issue presented in the case, in fact, the supreme court has ruled that it will not consider questions outside the usual
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questions in the case. it means the court cannot reach out and decide other issues in not grante if it did on them. we think incremental decision-making to the issues actually presented is one way that the court tries to respect this constraint on its power that it is resolving cases in front of it. sen. cornyn: getting back to the declaration of independence and the source of court legitimacy, these arrangements are not made to benefit you or the courts, or us, they are to benefit the american people by making sure that they are the ones who are the source of political power. do you agree with that? judge barrett: all provisions in the constitution are there to benefit the people. sen. cornyn: if the court rules on a statute, we can change the statute, but if the court says
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something is unconstitutional you can amend the constitution , to change that ruling, the people can do that, right? judge barrett: yes they could. sen. cornyn: so the american people are the final word? judge barrett: yes. sen. cornyn: mr. chairman, i will -- >> thank you. good to see you again. you are making history, i wish the senator from idaho could hear this, you are the first nominee for a vacancy on the supreme court to be considered after july 1 of the election year. in fact, were the first nominee -- you are the first nominee to be considered in the midst of the election, i do not know if that has happened before, certainly not in modern history. the question is why, what is the hurry, why couldn't we wait until the end of november or december after leaving a vacancy after anton scalia, because there is a political agenda here, and whether you are privy
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to it, or part of that, notwithstanding it has to do with the affordable care act. november 10 is the date that they have to fill the vacancy if the president and those that support him and those that support the republican platform are going to keep their promise to end the affordable care act. they need a ninth justice, and that is why it has to be hurried. unfortunately, that is the cloud over your nomination. as it comes before us in the senate judiciary committee. and, it raises many questions. i would like to confine the first part of these questions to what is going on across america as we meet here today. there is an election going on, and people are trying to vote, and there are a lot of issues being debated and somewhat resolved or unresolved every single day. the president continues to lie about paper ballots saying that they are fraudulent and people
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should not use them. there are still long lines, unforgivably long lines for people who just want to exercise their right to vote and the governed who want to give their consent. it is a battle royale over the postal service and whether it will be implicated in some to stopo slow down or ballots from being delivered. one ballot collection box in harris county texas for more than 4 million people? one box, it is clear what is going on here, it is an effort to make it difficult to vote even to those who are legally entitled. historically the republican , party started using a tactic of discouraging voters. we have seen this, making it more difficult, reducing the period of time that people can vote early, requiring ids, purging the roles of names, this is going on. so i want to confine my questions on the question of voting. let me start with what many
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people read this morning which was a summary of one of the exchanges yesterday here in the committee. senator feinstein who said "president trump made claims of voter fraud and suggested that he wanted to delay the upcoming election. senator feinstein then asked you, "does the constitution give the president of the united states the authority," listen closely "to unilaterally delay a general election under any circumstances, does federal law?" your answer, "if that question ever came before me i would need to hear the litigants, go through the opinion writing process," and he went on to say -- you went on to say that you did not want to give off-the-cuff answers but but ratherundant,
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issues with an open mind. is that still your response. judge barrett: i have given that response to every hypothetical i have asked, and as i said yesterday i do that regardless whether it is easy and hard. i do not do that to signal it, but i do that because it would be inappropriate for me to make a comment and i do not think i have answered any legal hypotheticals in keeping with the justice ginsburg rule. sen. durbin: you style yourself originalist,st, an whatever the term is, which means you go right to the words and try to understand the words in their original meaning. and so if i change senator feinstein's question and did not ask you whether the president has the authority to delay a general election, and ask you does the president have the authority to unilaterally deny the right to vote to any person based on their race, what would your answer be?
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judge barrett: well, there are many laws in effect including the equal protection clause which prohibits discrimination on the basis of race including the 15th amendment which protects the right to vote against discrimination based on race. so there is a principle and , constitutional law called external constraints, and even if one evaluates what the authority a branch might has to act, their external constraints, that presses in from other parts of the constitution. here it would be the 14th and 15 amendment. sen. durbin: of course it was. the 15th amendment "the right to vote should not be denied or abridged on account of race." originalist, that is clear text as i see it, but when asked if the president has any authority to unilaterally deny that right to vote for a person based on race or gender, are you saying you cannot answer that question? judge barrett: i just reference the 14th and 15th amendments,
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that prohibit discrimination on the basis of race on voting. as i said i do not know how else , i can say it, the constitution provisions that prohibit discrimination on the basis of race in voting. sen. durbin: but whether the president can deny, you cannot answer yes or no? judge barrett: you have asked a couple of questions. i cannot say anything more because i will not answer hypotheticals. sen. durbin: that is strange originalism if the clear warning of the constitution establishes a right and you will not acknowledge it. judge barrett: it would strain the canons of conduct which do not permit me to offer off-the-cuff reactions or any opinions outside of the judicial decision-making process. it would strain article three which prevents me from deciding legal issues outside of the
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context of cases and controversies, and is justice ginsburg said it would display , disregard for the process. sen. durbin: let us talk about the case we talked about before. your 37 page dissent in this case. yesterday, the junior senator in missouri in an to rehabilitate -- in an attempt to rehabilitate the witness asked you that that the right to vote is never secondary to any right and you answered yes, but it is fair to say i never said that. i have read and reread this, and i am not ready for a question on the final. i have read and reread your dissent. i would like to read to you what you wrote on this very question asked by the senator from missouri. i think we need to establish what this case is about for those who might not know or remember. ricky cantor was a con man, lived in wisconsin. he manufactured some kind of shoe insert, a pad and tried to
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sell it to people who had diabetes or foot problems. he wanted medicare to say it was approved, they did not, he sold it anyway and made the representation. when it was all over, it came crashing down around him. he cheated medicare out of $375,000 and was found guilty of mail fraud, paid $300,000 in penalties. he paid out $27 million in a civil settlement, and then spent a year in federal prison. so this was not some run-of-the-mill miscreant, this is a fellow who was a con artist. he said this is unfair i observe my year in prison and now i want to buy a gun and the law says i cannot buy a gun in the court said sorry, you cannot because you are guilty of a felony. justice scalia said that felonies of mental illness could continue to disqualify a person from buying a gun. two out of three judges said
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that is right and that is the law, sorry. birthday.or your but then you took a look at it and reached the opposite conclusion and did extensive research, delving into the history about whether or not violent felonies should be distinguished from regular felonies. you concluded that you believed that a person who has just been found guilty or convicted of a felony should not be disqualified from their second amendment rights. that that should be confined to those who were dangerous guilty of a violent felony. here's what you said to go to the question. here are your words. "in sum, the available evidence suggests that the rights to arms are different from civic virtue for enjoyment. the second amendment conveys a right and is not limited to civic participation. by the very terms of the civic rights argument, the right to
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arms would have been treated differently than things like the right to vote or sit on juries." here's what it boils down to. after heller, after the decision, and scalia's statement, you concluded that any felony can take away your right to vote, but only a violent felony can take away your right to purchase an ak-47. judge barrett: with respect, that is distorting my position. what i said in that case, which is what heller said and is conventional in all discussions in this to my knowledge is that the right to vote is fundamental, however it is an individual individual , fundamental right that we possess, but we possess it as part of civic responsibilities for the common good and the same thing is true of jury service, where individual rights, benefit more the individual, and the entire dispute in heller was
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that the majority thought that the second amendment was an individual right, and the dissent thought it was a civic right, a right that people possess, but they possess for the benefit of society by participation in the militia. it is a distortion of the case to ever say that i said voting is a second-class right. that is simply not what that passage means. sen. durbin: but the right to arms would be treated differently than the right to vote. let's get down to the bottom line here. heller did establish the individual right. when you finished with your dissent, here's what it came down to say. if you are guilty of a felony that is not violent, you can lose your right to vote, but not your right to buy a gun, are you -- am i wrong? judge barrett: the point i was making in that passage, the 14th amendment actually expressly
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allows for states to deprive felons of their right to vote and my point was that there was no similar language in the second amendment. i do not have an opinion and have never expressed one about the scope of legislature's authority to take away felon voting rights. what i said is that there was a history of such provisions, and state constitutions and federal constitution but i did not intend and if my words communicated that, that was a miscommunication. i have never denigrated the right to vote. sen. durbin: i think at best it was a miscommunication. i would like to read an exchange from 2005 that took place between senator kennedy and judge roberts. senator kennedy said "let us start with the voting rights act, most americans think that the right to vote is among the most important tools they have to participate in our democracy." you do agree that the right to vote is a fundamental constitutional right?
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judge roberts says it is preservative. i think of all other rights, without access to the ballot box, people are not in the position to protect any other rights that are important to them, and so i think it is as one, one of the most precious rights as americans. you understand why i read your lengthy dissent where somehow or another you could say to ricky cantor, sorry you cannot vote anymore, but buy any guns you wish, can you see why that would be troubling based on what justice roberts said? judge barrett: i do not because i have expressly testified here that i think voting is a fundamental right, and i did not say to the contrary in this dissent. sen. durbin: i read it and reread it, so i will tell you, from the way i see your language , it is explicit. you have two categories of
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is individualat that is based on collective action as an juries and as voting as a group, and you have made a distinction that i think it is hard to understand and difficult to explain, and in -- inconsistent with what justice roberts told us at this point. i would like to move on to another thing and leave it open . judge barrett: i will answer whatever questions you have. sen. durbin: let me introduce you to another family. this week i shared two stories at what is at stake with your nomination ahead of the november 10 oral arguments in california versus texas which will decide the future of the future of the affordable care act. this is a family is jared of buffalo grove, illinois. he is on the right. earlier, he began experiencing serious headaches. after a month of suffering he asked his father to take them to
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the emergency room. a ct scan revealed a mass and he was transported to everson hospital for surgery. weeks later they learned the devastating news, he was diagnosed with a cancerous brain tumor on the cerebellum and i am sorry to say that we are familiar with it here in the senate. senator mccain suffered from a similar situation. post surgery he began an aggressive six week proton radiation protocol and he is currently on his first round of chemotherapy treatments. eight his costs have added up to $700,000 and continue. fortunately the aca permits jared to remain covered by his mom's health insurance until the age of 26. that law also ensures no lifetime limits on her policy so that they can continue to give jared the treatments that he wants and needs. when sharing her son's story, his mom mary said that any parent would be shocked and
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terrified and the situation. if the aca is abolished and my employer does not offer coverage for dependents that puts them at risk of being uninsured and uninsurable. his father added that jared would not have access to this type of care if not for the affordable care act because he would not be insured. it is a huge benefit. last week and your testimony you said "the policy decisions and value judgments of government must be made by political branches elected by and accountable to the people." the public should not expect the courts to do so. thankfully, the political branches elected by the people passed and enacted the affordable care act. the problem is that the republicans are doing everything they can to take away this protection, and they cannot do it through elected officials, they have tried over and over. in the house and in the senate. i mentioned senator mccain earlier in this statement.
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i will never forget it and neither will any of us on the floor that night when he walked through the doors saving the health insurance of 23 million americans in the protections. they could not repeal the affordable care act in congress and they have now taking it to -- they have now taken it to the supreme court. this administration decided instead of defending an existing law, they would attack 11 the republican attorneys general have gathered. they have good reason to believe that they will be successful. as i mentioned, right wing judicial activists have stepped in to overturn decisions. activists judging including rolling back campaign-finance laws and citizens united and voting rights protections. the tool of choice is a supposedly neutral judicial philosophy of a regionalism and andof originalism
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textualism which gives judges the ability to substitute their own judgment for the elective branches and strike down and restrict laws that are holding to special interest. president trump has said that he would want to strike down the aca. you said you have not made agreements. i will tell you, that this is a cloud over your nomination. but he has over and over again. he has advocated others to carry out his political purposes. i am afraid of the impact of that repeal on people like jared. we have been told that you are following the ginsberg rule no , hints and no forecast. during your confirmation hearing. justice ginsburg answered about what matters might come before the court such as the right to choose. you had one notable and selected ginsburge from the
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rule. when it comes to california versus texas, the republican challenged the affordable care act you up repeatedly claimed that the deciding question of the case is severability not the individual mandate, that is a legal opinion. it will only reach the severability question if the mandate is unconstitutional, is that right? judge barrett: what i meant by that is that even if the mandate is unconstitutional, severability, if it is separable, then the statute would stand. so if the mandate is , constitutional, then yes, the law would stand. but i said that emphasis, and i have gotten a lot of questions for this reason and a lot of commentary in the legal news is focused on severability because it means that whatever the holding is on the mandate, the severability question is the one that would be determinative even if the mandate was held unconstitutional. i did not say how i would rule
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and i did not say whether i would interpret it to be a penalty rather than a tax. sen. durbin: penalty or tax, you have already addressed that, haven't you? judge barrett: no, i have not. the writing that i have done before, that i assume you are referring to addressed a different provision that was not out.d this is amended so it is different. sen. durbin: you were on record for criticizing the individual mandate as constitutional decision. haven't you? judge barrett: i am on record saying that i thought the majority opinion was a less plausible interpretation of the statute than that of the dissent. again, that was in academic writings, number one, and number two, they were on different issues. number three, you are suggesting that i have some hostility to the aca, which i assure you i do
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not, and i think that is something you and i agree on. judicial activism is bad from either side, and no matter what somebody's policy preferences are about the aca, i agree with you, they should not undermine the policy that congress enacted. you and i agree on that and i embrace that view of a judges' role wholeheartedly. >> we will do senator lee, white house, and cruz and then break for lunch. >> i would like to submit a letter. >> without objection. >> judge barrett, i want to talk about religious freedom for a moment. as i mentioned the other day, i think you and i share something in common on this, and enthusiasm for religious freedom as i mentioned i am a member of the church for jesus christ of latter day saints and we have been no strangers to persecution even in this country. on october 27, 1838, the
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government of missouri ordered us exterminated, it was not nice but i assume he had reasons. he believed we were heretics, and i'm sure that we are in the eyes of many. but we try to be nice heretics, and it was not until the late 70's that the governor of missouri lifted that ban. i am sure josh hawley would have lifted it for us had it not been lifted by then. religious liberty has always been interesting to me for that reason, and also just as a lawyer. my late father, also a lawyer, worked on and advised congress regarding the religious freedom restoration act. my longtime professional mentor and former boss was someone that i worked with in establishing a first of its kind religious institutions practice group a couple of decades ago. catholics, like members of my faith have also been subjected to religious persecution from time to time.
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and, in many cases, we are directly targeted through blame amendments. provisions worked into state or initutions, really f many cases, blatantly anti-catholic purposes. they had as their purpose the restricting of public funds going to certain religious institutions including schools. thankfully, earlier this year the supreme court in espinoza versus montana department of revenue struck down another blow against blaine amendments by reinforcing their earlier decision in the trinity lutheran case. would you discuss briefly with us the supreme court's jurisprudence regarding these amendments and how they intersect with religious freedom?
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judge barrett: we have to be careful about the establishment clause. but at the same time, the court has been clear that it cannot be excluded. to handlee been able some cases involving religious freedom issues. for example, you joined a majority opinion upholding the jewish religious school and its own discretion to hire teachers at school.
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that ruling was challenged before the u.s. supreme court, but the court denied says gre in that case. majority of a 7-2 the supreme court in our lady of waterloo big -- our lady of guadalupe case did up adopting a position similar to that which you joined in the case i just mentioned, in the our case. can you talk to us just a little bit about that opinion and about the seventh circuit opinion and its application of the ministerial exemption? judge barrett: sure. the ministerial exception gives religious institutions discretion to hire teachers who are ministers.
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what this requires the courts to do is to decide who is a minister. on the one hand, there may be -- there might be more meone who teaches religion, religious teachers. the court said those would follow more in the heartland. it gets more difficult if you have a religious school like the jewish school or the catholic school who has a teacher who is teaching math. the court cap to come up with a test to decide whether a person is a minister or not. the decision said is it is a multifactor test where no one factor is determinative. it could not be determined that a teacher teaches math instead
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of religion. in this case, the teacher taught jewish prayers and said jewish prayers with the class. the school considered it part of the teachers duty to form the them about to teach jewish prayers and to form them in that tradition. even though she spent other time in the curriculum teaching other matters, it viewed that as part of her job. our lady of guadalupe gives deference to the school's characterization of whether the teacher is a minister or not. not to encourage discrimination but to encourage religious freedom. at a catholic school, the teacher might teach math, but also pray with them and attend mass with them. it could be someone who is also
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forming children in the faith. it is really about what the scope of the ministerial exception is and how you identify if someone is a minister. >> thank you, that is helpful. when you came in front of this committee in 2017, we are talking about just over three years ago for your confirmation for the seventh circuit, you said if there is ever a conflict between the judge's personal conviction and the judges duty under the rule of law, it is never permissible for that judge to follow their personal convictions in the decision of the case rather than what the law requires. do you still stand by that statement? do.e barrett: i >> i have colleagues on the others of the aisle who want to focus on statements made in your personal capacity and in your capacity as a private citizen and a member of your faith. addressing actual
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cases dealing with abortion. i have a hunch that it is because of your record on the seventh circuit shows that you're able to set aside your personal convictions. that is what you have done when conflicted with your duty under the rule of law. chicago, -- price versus chicago, you joined a seventh circuit panel opinion affirming the legality of chicago buffer zone law which places limits on what activists as-- on pro-life activists they are demonstrating in front of abortion clinics. i assumed that was the case because there was minding supreme court precedent on the abortion buffer zone issue. is that correct? panel heldtt: the
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that there was binding precedent. >> you follow that precedent, and you did so as a jurist rather than following whatever personal predilection might have guided you or any other member of the panel. parenthood of indiana dissentucky, you joined in the seventh circuit. the supreme court later agreed with you in a 7-2 decision with respect to the indiana law requiring fetal remains to be following anmated abortion. the decision that garners a days on of 7-2 these
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the supreme court, a decision that includes justice breyer and justice kagan does not seem radical to me. do you disagree? courtbarrett: the supreme summarily reversed which means without argument and briefing the panels holding in that case. and the fetal remains disposition of fetal remains portion of the statute was not rational. >> i will note for the record that i don't think i have ever aard anyone characterize as radical act of conservative activism 7-2 decision joined by justice kagan and justice breyer. judge barrett, in addition to being able to set aside your personal convictions when deciding a case, you have toonstrated the ability
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expertly determine what the law requires. i believe this stems from a fundamental and correct view that a judge needs to start from the premise that the law provides an answer. the legal disputes can be difficult and reasonable minds excuseisagree does not the judge in believing there is a right answer. you seem to follow with that and it shows up in your work in a way that reflects well of you. the congressional research service conducted a review of your cases from the u.s. court of appeals of the seventh circuit and determined that your -- case-by-case consideration of the relevant law without any overarching trend toward either expanding or narrowing fourth amendment protections. this is exactly what i would
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expect from a textualist originalist. on an issue like the fourth amendment, it can be politically charged. this is exactly what you would expect to see with you, someone who does not appear to be up partisan one where the other. and who comes down on both sides. on the government and nongovernment side. this would also account for a variety of outcomes in your cases. an are not aiming for overarching trend in outcomes. analysis seems to come out sometimes in favor of a defendant and sometimes in favor of the government. i find your opinions and dissents and panel opinions to demonstrate this commitment to following the law as it is written rather than on the basis external objectives. can you tell us why you felt the need to dissent in the case of
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schmidt versus foster? judge barrett: yes. that case involved a state court case that came up through the wisconsin courts. a the case, there was question of whether the defendant could raise a defense under wisconsin law called adequate provocation having murdered his wife. the case came to the wisconsin arguedand the defendant that an x partake examination of the judge at which his counsel was present but not permitted to speak did not violate the sixth amendment because in that case, they did not want to preview his case for the prosecutor and so he didn't want the prosecutor in the room so the judge said i will allow that but only if your attorney doesn't speak because if we aren't going to preview
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your case for the prosecution and not allow the prosecutor to be here. the judge proceeded to ask the defendant questions to decide whether he could make an adequate provocation defense and concluded he could not. in that case, the wisconsin courts held that this proceeding did not violate the defendant's right to counsel. telling his counsel that he could not speak. under 2254my court which is the state habeas statute permitting collateral review of state conviction. it requires heavy deference to state courts. you can only disturb a state court holding on a matter of law if no reasonable jurist could reach that conclusion or it has to be in conflict with clearly established supreme court law. in that case, i made clear that it wasn't up to us to decide
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whether we saw it as an original matter whether it violated the sixth amendment because as the panel majority which then became a dissent said it was an unprecedented hearing. if it was unprecedented, that meant that there was no clearly established supreme court law on point. the decision was driven by federalism and by the statutory instruction that federal courts give deference to state courts. >> thank you. case, united states versus wilson, i believe that one was in which you agreed with the majority in concluding that the officers acted with reasonable suspicion raced on the circumstances of the case and the detention there involving a flight by the individual from the scene.
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us wrote separately, tell why you wrote separately in that case. judge barrett: that case if i have it correctly, i have been almost 600 cases, but i think another when you were talking about. about somea tip crude -- criminal activity and there was a group of men in a park. the police approached the park then they went up to talk to one of the men at the park because they noticed a bulge in his pocket. he was wearing athletic shorts. , theylice approached them approached the man and he fled. under supreme court law, the determinative question for a seizure is whether the person fled then was detained and seized by the police. the other way that that could the been justified is if
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police had reasonable suspicion to approach him because they saw the bulge in his pocket. i wrote separately because i thought that the placement -- policeman's basis for stopping him if it had been on reasonable suspicion was questionable because they had an anonymous tip. the people in the park did not match the description given in the anonymous tip, all they saw was the bulge in his pocket. he had not fled, i thought the case it talked about the fled -- the flight because if he had not fled, i was dubious that it would have been a justified stop. toi admire your decision write separately in that case. i think it shows real courage and judicial leadership to speak out and write separately when the occasion requires that and you did so with nothing to gain
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from it. you did so because it was important to point it out under the law and i respect that. and the couple of minutes we have left, i wanted to ask you more broadly about something i have noticed in reviewing letters and other materials we have received in response to her nomination. i have noticed that there is a common theme among your law and students that they feel like you see them as individuals and they feel meant toward and taught -- they feel meant toward and taught by you. deciding who to hire as pure law clerks -- as how you clerks and mentor them? judge barrett: over a teaching career, i have taught roughly 2000 students. four law clerks per
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year and i also continue to teach at least seminar in which i have 15 students or so. what i am work -- looking for in law clerk is excellent legal ability because i need to help to do the legal research. i want someone who has excellent legal ability. i want someone who has integrity. i want someone who isn't afraid to push back and express his or her own opinions at the same time realizes that i am the boss and if i disagree, they're going ultimately.o along i also want law clerks who are character. our chambers is small. in ameone had sharp elbows chamber that only has six people or that showed disrespect or arrogance, that would make for a
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miserable year for everyone. i have not been disappointed. every one of my law clerks has fit that bill and i view it as my duty my law clerks just as with my students to encourage them to enter the profession as full people who have gained knowledge in the law with their time with me and have seen that they can live a life where people can disagree without being disagreeable. >> thank you, judge barrett. >> senator whitehouse? judge barrett: thank you. >> thank you. let me ask unanimous consent that an essay i wrote for the harbor journal on legislation called dark money in the u.s. courts be admitted into the record. >> without objection. >> i have a report prepared by democrats called captured courts. be admitted into the record. and an article by the new york bigs called charles koch's
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bet on barrett activating his political network to support judge barrett's nomination. >> without objection. barrett, on the seventh circuit, you are subject to a code of ethics. judge barrett: i am. >> i assume you're ok with that. judge barrett: of course. >> i would submit you think that is a good thing. judge barrett: yes. thell courts are subject to same code of ethics correct? judge barrett: yes. >> gets different at the supreme court. the supreme court is not subject to a code of ethics? judge barrett: the canons of judicial conduct that apply to lower court judges do not apply to the supreme court although i do believe it is the practice of the supreme court to follow them. >> they do not apply, we agree.
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going to the supreme court can interrupt an ethics investigation as we saw with justice kavanaugh who had an ongoing ethics investigation in his circuit that was interrupted by his elevation to the supreme court without having concluded. there is no such thing with you correct? we have no seventh circuit ethics investigation going on that would bl it -- interrupted by your elevation to the supreme court? judge barrett: i am not aware. >> i suspect you would be. ofh respect to reporting ,ifts, travel, hospitality emoluments. the circuits have a solid rule about reporting those and you comply with that rule on the seventh circuit? judge barrett: i do. it might even be by statute that we have to do that, but i do. >> yes.
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, i will offer this as a proposition, the rule that you follow and the way in which circuit judges follow it aligns quite well with the reporting requirements that in the executive branch, members of the cabinet have to do when they get travel, andifts, other emoluments and it aligns quite well with the reporting that members of congress have to gifts of travel or hospitality or other such emoluments. is with thency here supreme court. a much lower standard of transparency and disclosure about those very same things. it is a bit of a mystery when i see the situation, when you go
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up to the court, you will be not subject to the code of ethics that you are subject to now and you will have lower reporting requirements than you do now or that any of us do. i flag that for you because i think it is anomalous that the highest court should have the lowest standards and i don't know if you want to say something about that? at a minimum, i hope you would keep an open mind about trying to fix that when you are on the court. if you have a defense of why the highest court should have a lowest standard, have at it. judge barrett: i know that the justices file financial disclosure reports. i have never looked at one. i didn't know that they were different or that it was a lower standard than the ones that the rest of us -- >> take a look at that when you get up there. >> i have never interrupted anyone, but can i ask a question
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? now that you know that, how do you feel about it? interrupt my time while you are asking the desk answering the chairman's question? judge barrett: as i just said, i am surprised because i did think it was by a statute that apply to everyone. i am surprised. i have always complied with filling out my financial disclosure reports and as i am sure it may have been for you all, it's a little uncomfortable the first time to make your finances available. anyone can request it. but i have always complied. a for the record, it is question of interpretation and practice. i have hadham and public conversations about trying to remedy this with a legislative fix.
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you have that coming your way. you have repeatedly mentioned the phrase about litigation winding its way through the courts and ultimately to the supreme court. you have described that process as winding its way as an important restraint on judicial activism. you have to wait until a court -- a case gets to you through the ordinary course? judge barrett: correct. ordinarily, i don't know if you have ever done a case, but ordinarily it begins with a person. judge barrett: correct. >> that person feels an injury? judge barrett: yes. >> that person goes to a lawyer? judge barrett: yes. that person goes to a lawyer and
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files a complaint. win andurt, they try to vindicate their injury. that is the basic standard way in which this works. judge barrett: yes. >> it gets a little weird sometimes and that is a circumstance i would like to bring up to you. it touches on some of the stuff that i addressed yesterday. you note janice? let's describe this as the janice saga. it's about a different case called abboud. that was precedent for 40 years. judge barrett: i can't remember when it was decided, but it was precedent before janice. it was a long-standing precedent. >> on which there was considerable reliance? judge barrett: it did overrule
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that precedent so it didn't go through the application of the -- factors in deciding whether or not to overrule it. >> there was reliance in the 40 years that it had been the law of the land on the question of the union that had resolved. judge barrett: i don't want to second-guess or criticize or praise the majority in >> >> -- i am asking you for a matter of fact, have 20 states relied on it? judge barrett: reliance on abboud is a legal question. >> we believe that than. the janice saga begins with a case called knox. alito took aice shot at abboud. ascriticized it substantially impinging on first member writes of union members.
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for people who are watching, the abboud case was about the labor from getting compensated nonmembers when in the representation of their members, they get benefits for the people who are not members. not the most exciting part of the law, but settled this question of when they could get compensated for nonmembers. justice alito did not like it. andook a shot at it in knox the majority's choice to reach an issue not presented by the parties briefed or argued disregards our rules. justice alito did not like something about abood so he took a shot. then we went on to a later decision called harris b quinn. justice alito took another shot at abood in that case describing
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it as having an that is questionable. he undertook an extended critique of the decision describing it as having questionable foundations. justice kagan spotted that and in her dissent, she said today's majority cannot resist taking pot shots at abood and described its critique as fortuitous -- -- gratuitous. the message went out from judge alito that he wanted to do something about abood. there was something about abood that he did not like. with that, that was the prequel. then, we went to the two cases that followed. friedrichsne was which was supposed to be the one that got rid of abood and it had an interesting travel. the lawyer in the case was one of these groups from janus.
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it was the center for individual rights. right to legal defense foundation was counsel so they switched. forriedrichs, the center individual rights was counsel. , theyt went on to janus switched. for individual rights was an amicus. from everything i see, it looks like they went out and found a plaintiff. back to our earlier discussion, it wasn't the injured person that hired a lawyer, it was the legal group that went and found a plaintiff. then, they went to court which every buddy does. they got interest.
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i have never been in a case where anyone asked to lose have you? judge barrett: no, i have never experienced that. >> i can imagine not. these groups with money behind them from bradley foundation and all come into court and they say please dismiss my case in the district court. then, they go to the ninth circuit and they specifically asked the ninth circuit to get rid of the case, to uphold the decision dismissing the case as quickly as practicable and without argument. have you ever seen a case where someone came in and said i would like to lose as quickly as practicable without making an
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argument on behalf of my client? wase barrett: abood controlling law at that point? >> my question was have you ever seen that happen? judge barrett: i have not seen that happen in my circuit. >> then, the case went on to decision. as pretty did or signaled by justice alito, it looked like it was going to be 5-4 decision knocking out abood after 40 years. sadly and unfortunately, justice scalia died before that decision could be rendered so it decision -- turned out to be 4-4 decision. as you know, the tie ghost of the decision below and the ninth circuit prevailed. that was it for friedrichs. i did not take long for the same my janusis is back to exhibit.
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commonly -- who had showed up in janus. it was a reunion of the team. getybody filing back in to -- there was no big rush this time because this time, they had to wait for the vacancy on the court to be filled. they had to wait for justice gorsuch. there was not the same rush. the case -- then they went to argue it and down came the decision. i asked you to think that through because i have done some appellate argument and i have done some trial work and i have run a lot of litigation. one of the things that has been a constant for me has been the belief that even if i was taking a long shot case, i would get a fair hearing, a fair decision, and i had a shot.
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that thefeeling lawyers going into united states caseme court in the janus looking at this array of commonly funded antiunion front groups assembled against them having seen what friedrichs portended, having been signaled by justice alito in the earlier cases that they wanted to get rid of abood that they were on the hunt for. that is a feeling that no lawyer should have in america. court, iwere on the want to make sure you will conduct itself and cede that the court conducts itself that no lawyer goes into an argument the united states supreme court feeling that the case is stacked against them and there is nothing to be done rather than go in and take your medicine. judge barrett: i will approach every case with an open mind.
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>> i have a little bit of time , by the i will get onto way i am not the only one who sees this as a saga. the dissent in janus said here and the six year campaign to undo abood by a majority of five. pretty safe to say that you don't think courts should be campaigning to reach decisions. judge barrett: without yes iing on janus, think that judges should not have campaigns. shouldprojects and they not have campaigns, they should decide cases. >> thank you. because we have had all of these -- fluttering around the court without disclosing who is behind them, let's talk about
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and mckey for a minute. the seventh, on circuit, do you have x partake meetings with litigants? te meetings with litigants? constraints against doing so. >> how about with mckey? if there is a case where there is an amicus in a case before you, would you meet with them privately when the case is pending? privately,tt: meet allow the amicus? no. that would be inappropriate. >> is it possible that you would
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not know who is behind the amicus if they have not told you? how they are: funded? i am thinking through what the disclosures are. that is not part of what groups disclose when they file emma chris reese. >> -- when they file amicus briefs. >> there is a decision that amicus in their disclosure only who paid for the physical preparation and filing of the brief. interest of aig group that said here's a million dollars we want you to do great things and we would appreciate it if you filed an amicus brief in this matter but don't mention us and we would love to give you would sayut what you
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and we would love to read it before you file it. that doesn't meet the standard of 37.6. the court and the parties would never know and in fact, this happened in the oracle case in oracle versus google. hadurned out that oracle given up to $99,000 to something called internet accountability project which filed a brief and didn't disclose that oracle, a party in the case had given it $99,000 and internet accountability project was a pop-up. somebody established it, took the money and wrote the brief. there is another called the american conservative union which was given up to $500,000 by oracle and filed a brief in the oracle case and didn't disclose it had been given that kind of money by oracle.
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isn't that the kind of stuff that parties should know, that public and court should know? judge barrett: i did not know that until you just shared it with me. >> inc. about it because i think it's something that the parties and the court and the public should know. groupse are amicus potentially teeing up the benefits that will benefit the secret funders that will may be two for a case to know is coming but it isn't this case but it can have an effect later on, other party should know that. andge you to consider that i am 13 seconds out, so i will leave it with that. please think about these things.
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there is something not right about the way this is happening and i urge you and anyone from the court who is listening to try to sincerely clean this mess up because it is not good for the court. thank you. >> senator cruz? >> thank you, mr. chairman. all the lastrst of three days of hearings have revealed very good news. they have revealed the news that judge barrett is going to be confirmed by this committee and by the full senate. with two full days of questioning, we have seen that our democratic colleagues have very few questions raised about judge barrett's qualifications. very little of the time we have spent in here has concerned her record as a judge, her 20 years as a respected scholar.
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instead, much of this hearing is focused on political attacks, attacks directed at president trump. i recognize our democratic colleagues are not going to be voting for president and that is their prerogative. evenhave largely abandoned trying to make the case that judge barrett is anything other than exceptionally well-qualified to serve as justice. it is striking that as we sit here right now in this committee only twore are democratic senators in the room. if you look -- there are empty chairs. the democratic senators are no longer attending. i assume they will show up for their time, but it is indicative of what they are admitting which is that they don't have substantive criticisms. >> may i make a point of personal privilege?
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the covid crisis, the pandemic some officers are in their offices. to suggest their absences mean they are not participating is incorrect. >> i would note that the senator from illinois omitted the fact that all but two of the democrats were physically here yesterday. after the questioning, they made the decision not to be here. you are welcome to make that decision, but it is indicative when it comes to the time of the questioning this side of the arguments not have against judge barrett, any chance of prevailing. i want to address a couple of individual points that have been made. senatorshe democratic have talked about obamacare. at great length. at times, i have been confused and i thought we were on the health committee instead of judiciary because it has been such a central talking point for every democrat that if president
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trump is reelected, they assert everyone with pre-existing conditions is going to be denied health care and people will be dying in the streets. that is the reelection message. it's not connected to reality, it's not actually true. every member of the senate agrees we are going to protect pre-existing conditions and i would note that not one of the democratic senators who raised that point have addressed the very real and catastrophic failures under obamacare. obamacare has doubled the profits of the big insurance companies. it has been great corporate welfare for giant health insurance companies at the same time according to the kaiser foundations, premiums for average families have risen $7,967 per year on average. that is catastrophic millions of
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americans cannot afford health care. it is a catastrophic failure of obamacare. none of that has anything to do with judge barrett's nomination to the supreme court. that is a very good argument for members of the senate to be having. yes, we should be protecting pre-existing conditions and expanding competition, expanding options, lowering premiums. this body will continue to debate that. will not be the decision-maker on a health care policymaker -- matter. had an exchange with judge barrett about the thet to vote and also about second amendment. matter, several democrats want to see the second amendment abridged to the
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maximum -- extent possible. two, democrats have decided they want to see as many felons as possible able to vote. one would presume they have made a determination it is in their political interests to have more felons, more convicted murderers, convicted rapists, people convicted of domestic abuse voting. they have made an assessment that that helps their prospects on election day. they are entitled to make that policy determination. at different states have made different determinations about and what circumstances felons should be allowed to vote or not. puzzled.t i am not sure our democracy is law toby changing the allow murderers to vote. i'm not sure the operation of the republic would be better if charles manson had a greater
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voice in the electoral system. i would note, senator sanders from vermont in the democratic presidential parties argued that felons in jail literally charles sentence,ving a life multiple life sentences for murder should be able to vote. that'smatter, i think pretty out there. the interesting thing is, judge barrett was not called upon to whetheretermination every felon or no felon should vote. rather, she was applying the law. judge barrett, did i hear you correctly that when you were describing your dissent in the cantor case, one of the reasons you said there was a difference
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in the law as it concerned voting versus the second amendment was because the 14th amendment explicitly contemplates legislatures making restrictions on voting based on whether you have committed a crime? judge barrett: that's right. >> i have the text of the amendment because senator durbin was highly critical as a policy matter, he wants this felons voting. he did not address the legal issue that as a judge, judge barrett was obliged to address in section two of the 14th amendment provides and relevant part, but when the right to vote in any election is denied or is forny way abridged, except participation in rebellion or other crime. durbin may not like that the 14th amendment explicitly contemplates that if you commit a crime if you are a felon, you may forfeit your right to vote.
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that is in the text of the constitution. judge, judge barrett would would sheng her job not look at the text and follow the text of the constitution. am i right that the second amendment doesn't have similar surrounding other crime or something comparable to that? judge barrett: you are correct. >> a third point. there has been some discussion from democratic members raising the question of the federalist society and dark money. and all sorts of mysterious connections. that barrett, am i correct for a time, you were a medal of -- member of the federalist society? judge barrett: while i was on the faculty as a full-time tenured professor. >> and you have spoken at some
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of their events? judge barrett: i have. >> in your time dealing with the federalist society, have they ever lobbied you to take a potential -- position? judge barrett: they have not? >> have they ever filed a brief in your court urging a particular outcome? judge barrett: they do not litigate they have not filed a brief in my court. >> your understanding is correct. federalist society does not file amicus briefs. have triedt leaders to sully the federalist society. from reality,cted but i will say and i wish senator whitehouse were here. i intended to have this discussion with him because he just spoke and spoke about all the connections he had. i was feeling bad that i didn't have a chart with red fuzzy yarn connecting all of the things that are the deep conspiracies
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going on. i do have a chart that is smaller that has similar .onnections back and forth it is produced by the americans for public trust. it shows the dark money connections between senator whitehouse and planned advisorsd and arabella and all of these different organizations with money flowing back and forth. all of the dark money. i would note, one of those dark money organizations on the left that we talked about yesterday that is the demand justice organization. i would point out that has involvedo be directly in these proceedings because this is a left-wing dark any organization that has posters right outside this building that have pictures.
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senator lee, chairman graham, you are on the posters. they say supreme superset -- super spreaders policy first health and safety last. if they want to put your pictures up, it's a good picture of senator lee and not such a good picture of chairman graham. >> it's not their fault. [laughter] democratic dark money the republican dark money efforts which is why ,ithout a twinge of hypocrisy democratic members make this charge repeatedly. i will point to one specific mcconnellich is judge in the state of rhode island. he is to be the treasurer of the rhode island democratic party.
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and the director of the rhode island branch of planned parenthood. how did mr. mcconnell, judge? about $500,000 to democratic political committees before becoming a judge. this is more than any other judge nominated by obama or trump. he stands at the top, $500,000. he donated $12,600 to senator whitehouse. he hosted a fundraiser for senator whitehouse in 2006. gave mcconnell's wife 250,000 dollars to candidates and causes so that is $750,000. now, judge mcconnell is a judge after senator whitehouse vigorously led the fight to get him appointed. he sits on the committee on code of conduct on the u.s. judicial conference. on that committee, he has helped
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lead the charge to issue a new rule to try to ban judges from being members of the federalist society. shock of no one looking at that red yarn connections. after the committee put out this assault on the federalist society to prohibit judges from being members, senator whitehouse and six other democratic senators loudly cheered that effort in writing. fortunately, that effort was roundly denounced. over 200 federal judges signed a letter opposing this. the federalist society takes no positions, doesn't lobby, doesn't file briefs, doesn't take public policy positions. whereake place in debates people on the left are featured prominently. every u.s. supreme court justice has spoken at least one
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federalist society event. thankfully, the assault on the federalist society was withdrawn in the face of over 200 federal judges and i would note 29 senators roundly criticizing the attempt. let's turn to a fourth issue. many democratic members of this committee seem to be treating this hearing as a policy hearing on what is good health care policy, what is good gun policy, what is good voting rights policy. and your view, is it the responsibility of a federal judge to implement policy positions they might happen to agree with? judge barrett: that is your job, not judges. >> i very much agree with you.
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watchingy for someone these proceedings to assume both sides want the same thing just on opposite partisan lines. it is easy to assume that the democrats want democratic judges and the republicans want republican judges to implement their policy. as easy as that is to assume, i don't believe it is accurate. accurate with respect to the judges i would like to see nominated and confirmed. i will give you an example. an issue that i am deeply passionate about is school choice. that is the civil rights issue of the next century. think to fight for -- the correct arena to fight for school choice is here in the
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senate, the legislature, the politically accountable elected legislatures. do i want to see a federal court issue an order mandating school choice across the country? it might be simpler if i could convince justices that you must have school choice. it would be a lot easier than trying to convince 51 or 60 senators trying to convince the house, we have gotten school choice legislation passed through this body that i have introduced, but it would be much easier if five philosopher kings could mandate it. that would not be an appropriate judicial role and i am not asking judge barrett to issue any ruling, although i believe that is the right policy. it's not judges rule to mandated. -- role to mandate it. interestingly enough, our colleagues do support judges prohibiting it. if you look at a case, it was a
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challenge to ohio's school choice program. ohio's school choice program gave scholarships to thousands of low income children, mostly african-american and hispanic children trapped in failing schools. -- athem hope, a chance at chance to have a shot at the american dream. it was immediately challenged. the case went to the supreme court by a fort 5-4, supreme upheld it. five justices were prepared to strike down the decision is unconstitutional and with it every other school choice program. they don't let the elected legislatures decide to give scholarship to kids if they choose to go to a religious
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institution. as far as i am concerned, that is a radical and activist position. were ready to shut down school choice programs all over the country. that is an example of how one side wants the court to mandate their policy outcomes and the other side does not. i don't want mandated, i want left to the palooka process. -- to the process. i want to address the issue of packing the court. repeatedly joe biden and kamala harris refused to answer whether they would pack the court. what does it mean to pack the court? one specific thing which is expanding the number of justices to achieve a political outcome. it is wrong. it is an abuse of power. i believe should they win in
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november, our democratic colleagues will pack the court. refuses tojoe biden answer, although he did say the voters don't deserve to know his answer as to whether he will pack the court. what we have seen this past week with a messaged discipline that is quite remarkable, democratic senators all making a new argument that what republicans have done for four years is packing the court. with all due respect, what utter nonsense. isling judicial vacancies not what that term means, and they are in net cash endeavoring to redefine the language to set theframework to set predicate for a partisan result on the court. fdr courtin 1983 said packing idea was a boneheaded
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idea, a terrible mistake to make. it put in question an entire decade the most significant body in the country. said the and 2017 judiciary committee stood against the court packing scheme that would have eroded judicial independence. senator blumenthal much the same. senator durbin in 2018 said 75 years ago we went through this and the congress was correct in stopping this popular president named franklin roosevelt from that idea. justice ginsburg and 2019 said if anything would make the court looked partisan it would be that, one side saying we are in power we are going to enlarge the number of justices not fill vacancies, enlarge the number so we would have more people vote the way we want to. nine seems to be a good number, it has been that way for a long time, i think it was a bad idea when president roosevelt tried
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to pack the court. that is the next fight we are facing if democrats win the majority. i hope we don't see that come to pass. >> thank you. we will come back at 12:30 and we will lead off with senator koontz. 12:30. - >>


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