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tv   MTP Daily  MSNBC  October 14, 2020 10:00am-11:00am PDT

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your mouth, i mean to put out a hypothesis so you can expand or correct me. is it correct that most governments have had a default -- citizens don't have rights unless governments proactively give them rights. the assumption is you don't have freedom of religion, you don't have the freedom to start a business and the american system starts with the opposite assumption which is freedom is the default position. people are created in the image of god with inalienable rights, these are pregovernmental rights and the government has to be enumerated powers. we, the congress, have to authorize article 2 branch, the executive branch to go ahead and do anything. if they don't have those authorities, they in the executive branch and the administrative agencies, they can't do anything unless congress gives them the freedom and the people's default assumption is freedom. so our system is to flip the historic prohibition assumption
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and we have a freedom assumption on people and a prohibition assumption on government. so prior to the bill of rights the structure of the constitution was saying that we don't need to enumerate rights because the assumption is you have a right unless a prohibition has been created. that is a fair way to think about it? how would you expand upon it more eloquently since you teach this stuff? >> you are far more eloquent than i, senator sasse. no, i think that is an accurate description of the assumptions underlying our constitution, that the assumption was that if congress had limited power, it wouldn't have the ability to infringe rights in the first place. of course at the time the constitution was ratified, the states were thought to have -- because the people are closer to their state governments, states -- well, that's the point of federalism, right, that citizens can have different policies in states and more influence over their state governments and state legislatures than the federal
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government. >> what role does the declaration of independence play in interpreting the constitution? or what's the relationship between the two documents? >> well, the declaration of independence is an expression of our ideals, expression of our desire to be free of england. it's not law, however. the constitution is law. so the constitution is our foundational law and governing document. you know, while the declaration of independence tells us a lot about history and about the roots of our republic, it isn't binding law. >> what are the five freedoms of the first amendment? >> speech, religion, press, assembly -- speech, press, religion, assembly. what am i missing? >> redress or protest. >> okay.
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>> why is there one amendment that has these five freedoms clustered? why do they hang together? >> i don't know what you're getting at on that one. you mean what is the common denominator? >> yeah, why -- i'm getting back to the same idea that the bill of rights was sort of an attempt to do public catekesis. we already believe in limited governor, we the government, but the 1787, 1788 conversation was to say we believe in limited government because we believe in the limitless rights of people and so they didn't have a bill of rights. later, when they started spelling it out, it's sort of like they got jazzed up trying to work this out for the american people. this is amazing stuff. and so i'm just wanting to hear you reflect a little bit on the glories of the first amendment, even though it wasn't needed as a part of the structure at the beginning. once they added it, why five of them in the same amendment?
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>> i don't know why actually as a historical matter those were grouped. i'm sure there's a story that i don't know there about why those appeared in the first amendment altogether rather than being split up in different amendments. i mean assembly and protest and speech bear more relation to one another than necessarily free exercise, say. but i think, you know, they are in the first amendment and i think that that reflects that those were core values that reflects that the states that ratified the constitution, the original constitution on the understanding that a bill of rights would be added wanted protections like that to be included because they were really core to what the new americans thought was going to be america. >> thank you. i agree with you and i think that some of why it's so useful to think about the five together in my mind is because you don't
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really have freedom of religion if you don't also have freedom of assembly. if you can't gather with your co-relationist c co-religionists. you don't have freedom of speech if you can't gather. you can you can't seek redress of grievances if the government oversteps and tries to curtail some of those freedoms. i think some of the important questions about judicial modesty in some of the last hearings are very relevant and prudent to have had but i also think there are times when there's been questioning that you've been put through that has implied that because you have free assembly rights as an individual, when you were a faculty member or as a wife and mom and neighbor in south bend, when you sign something walking out of church, that's sort of implied that there was something inappropriate when the default assumption in our system is that we all have these freedoms
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because the civil society associations that we have are where we actually find happiness, meaning, joy and love. one of the things that not just judges wearing robes need to have to demonstrate humility but all of us in our day callings as public servants for a time but who are eventually going to go back home to the language of george washington's farewell address to go back and sit under the tree at mt. vernon is that this is not the center of the world. this is not -- the institutions of power is not where meaning is found. the institutions of power are about serving the people so that the places where the 330 million americans actually live can be the center of life and meaning and association and religion and speech and press. that the heart of our system is actually volunteerism, entrepreneurship, community, neighborliness and love and power is just in service of that. washington and later lincoln's expansion upon it was the idea of the silver frame butt golden
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apple. the silver frame that is the constitutional structure is just to maintain the structure of ordered liberty so people can pursue the good, the true and the beautiful. the happy and the neighborly in the center of the picture because that's where love and community is found. i'd like to pivot from constitutional structure to baseball for a minute if you'll bear with me. any of your kids play baseball or softball? >> two of our boys had a very brief career in baseball. >> gotcha. well, it's obviously not as great a sport as football but we can still call it the american pastime. i'd like to talk about the houston astros who are ms. risee cheaters. sorry, cornyn and cruz. both of the texas senators sit on this committee. but i think all baseball fans know that the houston astros cheat. they steal signs, they bang on cans, they have done a whole bunch of miserable things
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historically and deserve to be punished probably more than they have been. >> thank goodness the first amendment protects that right for him to express that erroneous opinion. >> if you want to defend cheating, that is the prerogative of the senior senator and the junior senator rushes in to do some homerism. >> it was going so well. >> i notice that ted is wearing a lone star state flag but not an astros mask. tonight is game four in the american league championship series, and if houston loses to tampa, they will be done. that leads people to feel kind of desperate at times, right? there are times when you have a game that's your elimination game. you can imagine people wanting to sort of reconsider anything they can reconsider. the ends might justify the means. and you can imagine that the houston astros who have cheated in lots of ways in the past with
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sign stealing might try to go to the umpire and try to persuade somebody to expand the strike zone just for houston in the game tonight. that would obviously be inappropriate, right? >> right. >> we can't have two sets of rules. well, i think that an umpire is obviously supposed to apply rules fairly to both teams. i think we can all agree on that, as rules of fair play. and i think some of what we have seen in the questions over the last three days are trying to get an umpire to commit to a different set of rules for different teams. and so for what it's worth just to reiterate, what i think so many of us have been trying to argue for in these hearings is the alleged equivalency between republican and democratic questioning here implies that republicans have been trying to get you to precommit to certain policy outcomes and i just don't think that that's actually what's been happening in this hearing. i think that the originalism
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that you've defended and that a lot of us have been advocating for in advance of and during this hearing is not a request for republican policy positions to be advocated through the courts. it is rather a plea not just to you and to future nominees but to our democratic colleagues as well to embrace a system where we begin distinguish for the american people between the two political branches and the apolitical branch. the fact that you are before us to be confirmed to a lifetime appointment where you will put on a black robe is a liturgical act where you're cloaking your preferences in humility. it is obvious that we are all shaped by life experiences. it is obviously the case that people have lived in communities in the past and most people who end up as extraordinary jurists have been connected to or around the political process at different points in their career. but that is not to undermine the ideals we have in the american
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system that judges should not see themselves as super legislators, they should not see themselves as policy advocates, and they do have to take up this new oath to a greater humility. and it means that you lay down certain freedoms that are inalienably and innately yours prior to becoming a judge so you don't have the appearance of bias and impropriety in the future. i want to reassert the idea that we should be trying to excise from our language this idea of conservative and liberal blocs on the court, republican and democrat justices. what we want, and i want this to not just be a republican aspiration but i want it to be a democratic aspiration as well again. what we want are people on the court who understand that with humility and modesty the judicial role, because it is a limited role. it is not a role to right all wrongs in society. it is not a role to be a policy advocate.
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i think you've come ported yourself straextraordinarily wes you've been repeatedly asked to be an umpire that judges certain cases and it's not your job to do that until you're an active member on the court so thank you for the civics lesson you've offered americans over the last three days. thank you, mr. chairman. >> yes, here we go. >> mr. chairman, i was tempted to make a parliamentary inquiry of the unjustified broadside of the senator for nebraska violates rule 19 of this body, but i decided not to when i came to the realization that nebraska lacks a professional baseball team and at times doesn't always have a winning football team either. and so i view it more as a plea for help than a substantive point. and i will say remainder of the senator from nebraska's
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questions and exchange with judge barrett i thought was excellent and a wonderful civic lesson fors american. the scurrilous things about the astros should be stricken from the record. >> i ask to submit some historical information about the houston astros but we'll wait for now. >> will you include a photograph of the world series trophy? >> i think there's an asterisk hanging over the trophy. >> number one, i want to thank judge barrett for not interrupting us during your hearing. senator coons. >> thank you, mr. chairman. thank you, judge. good to be talking with you again. these questions of fairness and who follows the rules and who are the umpires and do we win at all costs or do we respect the traditions of the game are essentially what's before us. so let's get to it with the 20 minutes we have, and thank you, again, to your family and everyone who's traveled with you
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today. judge barrett, in accepting president trump's nomination to the supreme court, you stated you share the judicial philosophy of justice scalia, your mentor, the justice for whom you clerked. his philosophy is, of course, originalism. essentially the idea that the authoritative meaning of the constitution is what it meant when ratified. whether that was 150 years ago, 240 years ago, but meant when ratified. and i think the american people need to better understand what that originalist philosophy could really mean for their everyday lives, because i think it means our entire modern understanding of certain constitutional commitments around liberty, privacy and equality under the law could in fact be rolled back to 19th or even 18th century understandings in a way unrecognizable to most americans. many of these modern notions are rooted in a landmark case decided in 1965, griswold versus connecticut, where the supreme
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court held married couples have the right to use contraceptives in the privacy of their own home n an interview in 2012 on fox news, justice scalia said this decision was wrong. because under his originalist philosophy, there's no such thing as a general right to privacy in the constitution. this is a question most currently serving justices have answered. when we spoke on the phone last week, you said you couldn't think of any specific issue of law where you disagreed with justice scalia. do you agree with him that griswold was wrongly decided and, thus, states should be able to make it illegal to use contraceptives if they so chose? >> well, senator, as i've said a number of times, i can't express a view yes or no, a plus or f. in my other capacity i get to grade, but not in this particular capacity with respect to precedent. i think that griswold is very,
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very, very, very, very, very unlikely to go anywhere. in order for you or griswold to be overruled, you or some state legislature would have to pass a law prohibiting birth control and a lower court would have to buck supreme court precedent and say we're not following griswold, again seems very unlikely. so i think that it's an academic question that wouldn't arise. but it's something that i can't opine on, particularly because it does lie at the base of substantive due process doctrine which is something that continues to be litigated in courts today. >> for the benefit of watching judge barrett, your predecessors talked about griswold in detail. justice roberts said he agreed with the conclusion. he shared your view that he's comfortable commenting because it doesn't appear to be an area that would ever come before the
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court. justice alito and kavanaugh agreed. justice kagan who you have been citing on the no grading said i do, that she's willing to speak to it, and as every nominee has, i do support the results in griswold. i understand that you're saying to us you're going to be your own justice and that you're very hesitant to talk about this case because it is an anchor to substantive due process. but let me just one more time say are you unwilling to say as so many currently serving justices have that at least griswold is not wrong? >> i think griswold isn't going anywhere unless you plan to pass a law prohibiting couples or all people from using birth control. and i think the question because it's entirely academic, because it seems unthinkable that any legislature would pass such a law, i think the only reason that it's even worth asking that question is to lay a predicate for whether roe is rightly
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decided because griswold does lie at the foundation of that line of precedent. so because griswold involves substantive due process, an area that remains subject to litigation all over the country, i don't think it's an issue, a case that i can opine on. nor do i think griswold is in danger of going anywhere. >> and to be clear about what it underlies, it's not just that griswold was a landmark case, as you well know. it anchors a lot of modern liberty interests and personal and family autonomy. it was extended to unmarried couples. it was extended to the right for women to control the reproductive cases in roe and in casey, but it was also extended to support same-sex couple intimacy in lawrence v. texas and ultimately that same-sex couples have an equal right to marry. the reason i'm taking a few minutes with this is that justice scalia publicly disagreed with or dissented in each and every one of these cases.
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he wrote in one of these decisions that it reflected the court adopting the so-called homosexual agenda and just last week justices thomas and alito issued an opinion stating the supreme court needs to fix problems from its holding in obergefeld. so i understand you'll be your own justice and justice alito's philosophy is significant, but i think you've also made it clear that it's largely your philosophy. i'm trying to help viewers understand what it means to replace a justice ginsburg with someone who may more closely follow justice scalia's approach. if justice scalia had had his way, we'd be in a very different country in regards to gender discrimination. in one of justice ginsburg's most celebrated decisions in 1996 in the case involving virginia military institute, she struck down their male-only admissions policy. decades later, they honored justice ginsburg because of the contributions their females have
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made. justice scalia dissented. i'm just getting at how closely you would ally yourself with justice scalia's jurisprudence. would you agree that justice ginsburg's decision in vmi was wrong? >> well, senator coons, to be clear, as i said i think in response to this question yesterday, i do share justice scalia's approach to text, originalism and textualism. but in the litany of cases that you've just identified, the particular votes that he cast are a different question of whether i would agree with the way that he applied those principles in particular cases. and i've already said, and i hope that you aren't suggesting that i don't have my own mind or that i couldn't think independently or that i would just decide, let me see what justice scalia has said about this in the past, because i assure you i have my own mind.
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but everything that he said is not necessarily what i would agree with or what i would do if i were justice barrett. that was justice scalia. so i share his philosophy, but i have never said that i would always reach the same outcome as he did. >> understood. but i think a case like this is a striking example of what it might mean to replace justice ginsburg and her methodology and her approach with someone much closer to justice scalia. and frankly, to me this comes back in part to the president who nominated you. president trump did not nominate you to carry on justice ginsburg's legacy. he nominated you because he wants to undermine or change or shift that legacy and he's been very clear repeatedly before you were chosen about his intent to nominate justices in the mold of justice scalia. you recognized yesterday in an exchange with senator leahy that replacing justice scalia with justice garland, had judge gaurland become justice garland
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would have changed the balance of the court. it's something you wrote about. you recognize these balance shifts are why supreme court nominations are so much at issue in presidential elections. do you just acknowledge that your confirmation, even though you won't be identical to justice scalia, will profoundly impact the balance of the court and the way in which it decides future cases? >> i think the statement that i was having an interchange with senator leahy about yesterday was about an interview that i gave shortly after justice scalia's death but after judge garland's nomination. and i did say that -- use that phrase lateral move and what i meant by that, i mean i very much agree with senator sasse that we shouldn't talk about republican judges and democratic judges because i think there are just judges. but of course it's true that judges have differences in judicial philosophy. so i actually think justice breyer and justice scalia are a great example of this because
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they sometimes have public debates with justice scalia advocating originalism and justice breyer advocating active liberty. there's room on the court for that for having different approaches. it's not about having your colleagues on the other side of the aisle, all of you in the room have different policy platforms. but judges don't have policy platforms, but it is certainly the case that judges take different approaches to interpreting the text. and that is what i meant when i was describing how the balance of the court would shift. it would be away from one balance and toward another in terms of how judges think about the text. >> and judge, what i want to explore with you in the time ivory maining i have remaining is how that shift in ideology, in approach may have a dramatic impact on the policy outcomes of what is and isn't upheld as law going forward. on the board behind me, i've asked my team if we would just go back and look at cases.
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all of these cases listed, it's roughly 120, have something in common. justice ginsburg was in the majority, justice scalia was in the minority dissenting. these are cases that touch on nearly every aspect of modern american life. i've talked a lot yesterday about the health care and the affordable care act. a number of my colleagues have talked about other areas. but what's striking is if you just look at what a 5-4 balance towards this methodology towards a 5-4 balance of this method, it has huge consequences for education, for consumer rights, for access to the courts, for civil rights, for immigration, for environmental protection, for native american rights, for workers' rights, for elections, for executive power, for reproductive rights, for free speech, civil justice, economic development, privacy, government misconduct, prisoner rights, capital punishment, gun safety and criminal justice. in each and every one of these
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cases, if justice ginsburg had been replaced by a justice with the same core methodology, you can't predict how it would have turned out but it would have moved in a different direction and in a direction much closer to scalia's philosophy and further away from justice ginsburg. that's why i think your views on precedent matter and we should take a few minutes and go through them. it's something you've written about at length and where you're quite well grounded. the precedents of the court, which is what these 120 cases are, are precedents upon which litigants, the average american, should be able to rely and that's that whole issue about whether justices are simply umpires calling balls and strikes or whether there is some agenda. my concern is that a leading scholar in the field of constitutional law has recently reviewed your writings and concluded that you demonstrate
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an extreme willingness and even radical willingness to revisit settled precedents. some characterize you as more extreme than justice scalia in your approach to precedent and closer to justice thomas. the supreme court has long held, as you well know, that overturning precedent, a settled case, requires a special justification or strong grounds. but in a 2003 article in the university of colorado law review, you wrote, and i'm quoting, and i think i'll get a chart in a second that has this quote. generally speaking, if a litigant demonstrates a prior decision clearly misinterprets the statutory or constitutional provision it purports to interpret, the court should overrule the precedent. what i see missing from this text and the broader context around it was anything about needing a special justification to overturn settled law or anything about the other factors the supreme court typically requires. you seem to be saying a judge should overrule any precedent as
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long as she thinks it's clearly wrong. if that's your view, and i think from this text it is, it basically means any precedent is at risk where your originalist view of the constitution or textualist view of the statute says it's clearly wrong. do you stand by this statement? >> senator coons, that statement was talking about the courts of appeal. i believe that statement was about the due process clause and as you probably stretch back from your lawyer days remember the principles of issue preclusion and claim preclusion. that article was about how in the courts of appeals that had a very rigid rule that one panel couldn't overrule another, that those rigid rules on the courts of appeal were inconsistent or intentioned with some of the courts issue on claim preclusion doctrine. so it wasn't about normal functioning of precedent,
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especially at the supreme court where there are no such rules. and i'll point out that the article was about circuit courts and courts of appeal. in my time on the seventh circuit i don't think there's been any evidence that i've been unwilling to follow or apply circuit precedent. as for the scholar criticizing me as a radical on stare decisis, i'm not sure who it was but i'm very surprised because i think in my conversation with senator feinstein earlier, i explained that the article which many people have plucked a sentence from, the texas law review article, was a defense of the supreme court's approach to constitutional stare decisis. >> your words weren't just limited to this context talking about individual litigants to how issue preclusion works, it was a novel analysis, the 2003
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article, something i hadn't thought of about how it impacts an individual litigant. but in this 2013 university of texas law review article, which has also been referenced today, you wrote, and i'm quoting, it's more legitimate for a justice to enforce her best understanding of the constitution rather than a precedent she thinks clearly in conflict with it. again, you're saying that if a supreme court justice thinks a prior ruling was clearly wrong, she should disregard precedent with which she disagrees regardless of the typical balancing factors. >> senator coons, as i explained this morning, that sentence has been plucked out of the article to create a misimpression about the context. the whole article discussed reliance interests, discussed the reasons for stare decisis and emphasized that courts ought not disrupt settled precedent absent very good reason to do so, reliance interests being one. i think no one on the court or
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even no one in this room ought think that the court ought never revisit its precedent. as i was mentioning earlier, bauers versus hardwick held that certain conduct between same-sex partners was illegal and lawrence versus texas overruled that. my guess is you think lawrence versus texas was correctly decided, so i don't think that your position would be that no precedent should ever be revisited. >> correct. i do think in grievously wrong cases, it is appropriate to reach back as a number of members have discussed around brown versus board and i did note that exchange earlier. but in terms of reliance interests and the significance of reliance interests, in reading that 2003 colorado law review article, you wrote that reliance should count much less, if at all, when a litigant convinces a court that precedent conflicts with the statutory or constitutional provision it purports to interpret. i was struck by that language, because i know you choose your
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words carefully. you've acknowledged reliance interests exist and they're part of the supreme court and its approach. but in this article it seems to me you're giving your own views about whether reliance should matter. and you're unequivocally stating it shouldn't. it should matter less, if at all. when the originalist approach to reading the constitution says this is wrongly decided. that's why to me the concern about reading the constitution through a scalia lens rather than a quite different method logical ginsburg lens. you've also recognized that originalists like yourself are more likely to overturn precedent. in the texas law review article you cited statistics that self identified originalists urged and joined in overruling precedents more than any other justices over an 11-year period. the disturbing picture overall about all of this, about precedent, is that i think
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there's been a movement amongst originalists and a change in terms of the approach of judges to judging who self-identify as originalists. in the 2017 article in the university of minnesota in constitutional commentary that's been referenced before, you said, and i'm quoting, about modern originalists, that they have abandoned the claim one should be an originalist because originalism produces more restrained judges. do you stand by that characterization? >> well, senator coons, i just want to point out in this whole discussion i did write that colorado article in 2003. i don't recall that sentence or its context, but in my full body of work, including everything that's come before, including the 2013 texas law review article, i've written at great length about the virtues of stare decisis and the interests it serves. i've also talked about other features of the judicial system. and also i'd like to point out
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that nothing in my record in the seventh circuit shows disrespect for stare decisis and also justice scalia did follow precedent. it's not like he ever advocated to overthrow stare decisis. so i don't think there's any evidence that suggest that i'm in there trying to burn up the 600 volumes that are on the shelves. i which have an agenda in that regard. >> that's what caused me concern as i looked at thomas versus scalia and which may be more the role model you follow in terms of the application of stare decisis. these quotes jumped off the page. they were compelling and well written, but these quotes struck me as clear statements of a view or an intent. and as i've said before, the larger challenge here is not what you've said about your views on cases but what the president who has nominated you
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has said about his goals and his objectives for your service on the court. and frankly, my concern about originalism and an activist willingness to reconsider precedent is that in combination, justice scalia's views often expressed in sharply worded memorable, memorable dissents may make for great academic reading. but most americans don't expect them to become the law of the land. in a long line of cases, they would overturn well settled precedent that i think we have all come to expect. so my core concern here, your honor, is that your confirmation may launch a new chapter of conservative judicial activism, unlike anything we've seen in decades. and the point of the chart was to just show we've mostly been talking about the affordable care act and privacy related cases, but if that's true, it could touch virtually every aspect of modern american life.
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i pray that i'm wrong. i hope that i am. but in my reading of your work, nothing has alleviated my grave concerns that rather than building on justice ginsburg's legacy of advancing privacy and equality and justice, i'm concerned in fact you will take the court in a very different direction and so with all due respect, i will be voting against your confirmation, your honor. thank you, mr. chairman. >> one brief comment. the six super precedent cases, how much were there, five, six? >> let's see, this is going to be just like when senator sasse -- >> well, we know where they're sglat there was marbury, brown, map versus ohio, the civil rights cases. >> so just very briefly for the public, and the reason those cases were picked by you, nobody is suggesting in today's world that it's not the supreme court's decision to interpret the constitution, marbury versus
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madison. >> that's correct. and to be clear, that list was formulated by other scholars thaf that was referring to it. >> not just your list. >> and nobody in america is wanting to go back to segregation. >> no. >> no legislative body is attempting to do that for a good reason. america does not want that. nobody in their right mind wants that. the rest of these cases that have been listed as super precedent have that commonality, overwhelming acceptance, is that correct? >> yes, that is correct. >> as to roe and casey and to heller and united citizens, active litigation going on right now today, is that correct? >> that is correct. >> senator hawley. >> are you aware of any active litigation challenging griswold versus connecticut? >> i am not. >> are you aware of any
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litigation in recent decades challenging griswold? >> i am not. >> are you aware of any legal movement to challenge griswold versus connecticut? >> i am not, although as i said to senator coons i'm certainly not aware of anybody trying to make the argument that a legislature should prohibit the use of birth control. but as you know, griswold does lie at the base of the doctrine that very much is challenged in federal court. >> here's my point. i was 7 years old when judge robert bork came before this body. i don't remember any of that. i wasn't watching it as a 7-year-old. but what we saw, i think the legacy of the bork hearings continued to reverberate. his name has become a verb. the borking of nominees. i think what we've seen is an attempted borking of judge amy barrett. the problem is they don't have anything in your record to so badly misconstrue sand suggest you're going to fundamentally change america that now they
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have to attribute to you the worst readings and most draconian interpretations of justice scalia. so we take scalia's record, distort that and attribute it to you. let me come back to your relationship with justice scalia. i was under the kbleimpression you were a different person and you had your own mind, is that fair to say? >> that is fair to say. >> is it fair-to-that you are an independent woman, jurist, professional and a pretty darn good lawyer and you'll make up your own mind on the decisions, cases, controversies that come before you to the supreme court of the united states? >> yes. >> i think maybe then we can put to rest this attempt to constantly leverage the worst interpretations of justice scalia's philosophy, misrepresentationis and attribue them all to you as if you are the same person. frankly, i think it is demeaning and insulting and i'm glad that you pointed that out in response to your independence to the last question. let me ask you about another set
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of questions just briefly you had this morning. senator leahy asked you about the foreign emoluments clause, which is in article 1, section 9, paragraph 8. he asked you whether it was best characterized as an anti-corruption clause. you might remember that, in terms of foreign influence and foreign interference. and then he referenced the president and various allegations about foreign influence. since he asked you about it and since he asked about foreign influence in government, i think it's only fair that i ask whether hypothetically speaking, just hypothetically if there were, let's say, a vice president of the united states who hypothetically had an adult son who hypothetically worked for a foreign oligarch, who then sold access to his father, the vice president, and his father then intervened in a case to make sure that that oligarch wasn't prosecuted, hypothetically would that violate, would that constitute the kind of foreign corruption that the constitution is concerned about. >> i can't answer hypotheticals. >> well, i thought you might say that. and i'm glad you don't and won't
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because who knows, that case may come before you, but i think it's a fair set of questions to ask. let me ask you about something different. section 230 of the communications decency act passed by congress in 1996 yesterday, justice thomas issued a dissent from a denial of certiorari in a case called the malware bytes case. >> i was just about to say please don't ask me about it, because i didn't have a chance to read anything. >> let me read to you just a few parts of it. it's quite significant, i think. here's from the opening paragraph. when congress enacted the statute, meaning section 230 of the communications decency act, most of today's major internet platforms did not exist. in the 24 years since we have never interpreted this provision, we meaning the supreme court. but many courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world. he's talking about the big tech
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companies. and he quite methodically over ten pages goes on to set out the ways in which courts at the behest of these tech companies have dramatically rewritten section 230, changing its liability standards. he talks about changing the distinction between publisher and distributor liability, changing the immunity shield, changing the narrow liability shield, extending 230 to protect companies from a broad array of traditional product defect claims. he says it's quite a thorough statement. here's my question to you. you haven't read this. i don't think you've had a section 230 case. >> i haven't. >> so in general, not about his dissent from denial, but in general, what are the dangers of the supreme court or any court rewriting a statute, departing from the text that congress or a legislature, a law-making body, departing from the text they have written that has been adopted, presented and adopted,
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what are the dangers in that if a court departs from that and substitutes its own judgment whether in one opinion or over a series of years? >> as you've posed the question without respect to section 230, just in general the danger of a court doing that is to subvert the will of the people. you represent the people as has been pointed out over the hearing. judges are not elected and have life tenure and can't be voted out of office. so if judges misconstrue statutes or bends them to the judge's idea of what is good public policy, then it deprives the people of the chance to express the policies that they want through the democratic process. >> and the effect can be cumulative, can't it? you can start with a change to the statute, a rewrite of one provision of the statute that then becomes precedent and then when the court revisits this case later, revisits the issue later, then they expand that and do a little more rewriting and pretty soon 5 or 10 or 15 years later you're with something that
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has been so heavily blue pencilled, so to speak, that it doesn't bear much resemblance at all to the original statute. that's the danger of courts continuously substituting their own judgment. is that fair to say? >> that can happen. >> so -- let me just say my opinion, not yours, i think it's pretty clear that has happened with section 230. i think justice thomas does an outstanding job here of laying out why that's the case. let me ask you in a related vein, justice holmes, oliver wendell holmes jr. said in the famous loughner case in his famous dissent in that case, he said the 14th amendment does that enact mr. herbert spencer's social status. do you agree with that statement? what do you think he was getting at with that? >> so justice holmes' famous dissent in loughner which was later the position adopted by the court, is that courts
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shouldn't power their ideas of good economic policy in the 14th amendment to stand in the way of policies that the legislatures enact. for example, on questions of maximum hours for bakery workers or minimum wages and those kinds of things. >> you mentioned economic policy. talk just a little bit about how a court could substitute its own views on economic policy for those of a law-enacting body of a legislature or of congress. >> sure. in that era, in the loughner era and then we saw it also in the cases that preceded the switch in time, the court was standing in the way, i guess, in loughner itself in the way of reforms for workers that legislatures were enacting, and so if, say, one had a preference for free trade or if one had a preference for having no minimum wage or having
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a minimum wage to hold such a statute that did the opposite of your policy preference unconstitutional because it didn't comport with your idea of the best economic policy would be to thwart the will of the people without warrant in the constitution. >> are there dangers in courts acting as -- let me press this by saying most judges are not economists. i suppose some may be but most judges are not economics experts. are there dangers in general with courts acting as economic policy makers, deciding economic policy, making economic judgments? is that something that courts should be wary of as outside their area of expertise? >> i am certainly not an economist. i think courts are expert in interpreting law. you know, we've been trained in law schools and that's what we're good at and that's what we should stick with. >> i raise these concerns and i raise them in conjunction with section 230 because it seems to me that in the closely related
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antitrust context we have seen over a period of many years courts substitute their economic judgment in many cases for what the words of statutes actually say and what perhaps the fairest interpretation of statutes might actually be, and whether it's section 230 or the antitrust laws, one effect of this is to see growing concentrations of power in this country economically that i think are very significant threats to the ongoing operation of our democracy, to the basic ability of the people to control the levers both of the economy and of culture and of government. i'm afraid i think that courts have some role in this in much the way justice thomas suggested in his dissent from denial yesterday and i think it's hard to ignore it in the antitrust context as well. i won't ask for your view on this because these are issues that you very well may be called upon to weigh in on. i hope that you are. but i hope that you will -- i hope that you will give these issues consideration and the, i think, very well taken warning
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of justice holmes in loughner. i think perhaps that insight has been lost sight of in many cases by both republican appointees and democrat appointees over many years on the supreme court in a variety of areas. let me transition to one other area of law that's very important, back to the first amendment and to the free exercise of religion. you had an interesting free exercise case recently. you were on the panel, you didn't write the decision. this is the pritzker case. illinois republican party versus pritzker decided on september 3rd of this year. it was just last month. this is a case in which the governor of the state was sued because in the words now of the opinion, i'm quoting, his executive order relating to covid lockdowns, quote now, exhibits special slis tud for the free exercise of religion and the case in a roundabout way challenged that for churches and religious organizations. you joined the opinion in full,
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you didn't dissent. can you say why you joined the opinion and why you think that the content here is right, why the holding is correct? >> sure. so in that case the illinois republican party said that because the executive order in illinois had given an exception for the free exercise of religion, for example, so that people could gather at churches or synagogues or mosques, that same special protection had to extend to the illinois republican party and indeed biologicby laodge -- by logical extension o everybody because the right to free speech, free assembly, et cetera, that it was under first amendment doctrine a conte content-based distinction that could not survive. and what that opinion said about that is that it was permissible for the governor of illinois to
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carve out an exception for free exercise and that doing so didn't compel the government to extend the same protection to everyone. as judge wood said very well in that opinion, trying to accommodate a right explicitly mentioned in the constitution in the first amendment did not put the covid order in jeopardy. >> and the opinion is very firm on this point. you quote from the case which you and i discussed a little bit yesterday, unanimous case from the supreme court, this is the opinion quoting from that case. the first amendment itself gives special solicitude to the rights of religious organizations. this opinion that you joins goes on to say there can be no doubt that the first amendment singles out the free exercise of religion for special treatment. rather than being a mechanism for expressing views as the speech, press, assembly and petition rights are, it is
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content based. the mixture of speech and music and ritual and readings that contributing to the exercise of religion the world over is greater than the sum of its parts. in addition, what i understand, correct me if i'm wrong, what i understand the panel to be saying is the freesaying, the f exercise of religion isn't reducible to the free exercise of speech. it isn't reducible to the free exercise of assembly. those are important rights, those are also protected by the first amendment. but it protects the rights of religious people and religious organizations of all backgrounds, the world over. but, of course, in this country for americans it protects them and gives shem special solicitude of the first amend. >> to be sure, i can't take credit for the eloquent language that the judge makes. the free exercise of religion is singled out for its own protection in the first amendment, rather than being a subset of speech.
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and the position that the republican party took in that case would be more putting everything under the speech umbrella. >> and why do you think that is an important part of constitution law. if i could ask you -- not to comment on cases, but if you could put on your constitutional scholar hat, why is it significant that the first amendment gives special solicitude to the religious believers and exercise. >> i think in that case, it shows distinction why it mattered because the panel held in that case, the outcome may be treated differently if treated solely as the free speech question. because the court has said, content-based distinctions under the first amendment get strict scrutiny and can could be hard to satisfy. the case could have come out differently if it only had been
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at speech at issue. it came out as it did because free exercise was also at issue. >> i think with religious organizations, think ability to meet freely, where, frankly, we see many instances around the country where religious organizations are treated. religious churches, synagogues, mosques are treats less differently than secular counterparts, whether casinos, gyms or liquor stores, you name it. but so many executives around this country have chosen to single out churches for disfavor, whether in the covid context or in other cases, i think the holding of this opinion is very, very significant. and the supreme court's doctrine on this line of cases of the rights and special solicitude in the court's words is very, very significant. i'll just conclude by saying, judge barrett, it's been a privilege to get to speak with
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you these last couple of days. congratulations to your family and to jesse. i think you have been -- your answers to these questions have been really, really exceptional. i have been extremely impressed. and i was impressed to begin with. i just want to put a finer point on something that senator sasse said earlier. he said, you know, you exercise your rights. >> referee: assembly and free exercise and free speech when you were a faculty member. we talked about that at length. various positions you took. he pointed out there's nothing wrong with that. you shouldn't be penalized for it. i just want to point out to the chairman there's nothing wrong confirming to the supreme court of the united states a devout catholic pro-life christian and it would be my privilege to vote for you. >> thank you. >> senator blumenthal. >> thanks, mr. chairman. welcome back, judge barrett and to your family. as well, i hope you got some
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rest. last night. i think that's true of all of us sflp i did have a glahave a gla wine. let me just tell you that. >> let me just say, on that point, you have a right to remain styilentsilent. first, mr. chairman, i'd like to enter into the record the national jewish women's organization and the fro-choice caucus. >> without objection. >> thank you. and there are a couple of loose ends that i'd like to clarify from our conversation of yesterday. first of all, in our discussion of the second amendment, we both made reference to the third circuit. and its ruling on whether or not individuals convicted of a crime could possess a firearm. and i think you cited the third
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circuit as supporting the idea that certain felons could possess firearms, if i'm not mistaken. >> and i went back and checked that, too. you're right, it was a splinter decision and i was thinking of judge hardeman's opinion which was close -- >> excuse me, sir. [ indiscernible ] >> okay.
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>> none of the mics are working. well, obviously, it's pretty obvious to all of us, there is an audio issue in there. let me see if garrett haake can join us real quick and see if he's in the room. is garrett haake in the room still? if we can find out that information. well, it looks like they're going to continue to figure out this audio problem now. and give us a pause in this
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hearing. as we go, let me bring in andrea mitchell there. hey, tech problems in the age of covid is something we're all used to. we're all dealinging with audio issues. i know, i'm shocked, shocked, that we're having a technical difficulty in this environment that we've all been experiencing here. andrea mitchell, i think what was -- i have to say, i thought that chris coons back and forth was an exchange that i think, certainly was, you heard a little bit more. he did it with a velvet glove. but he seemed to make a case that looked i thought putting up all of the cases up there, the 5-4s was an interesting way to showcase whatever they wanted to showcase that, hey, whatever you think, the court may be looking at a dramatic change look at all of these 5-4s that went one way,
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would likely go another. >> and he did it going back to the griswold case in 1965 which was the connecticut case that established the right to privacy which was the underlying thesis that led to roe v. wade back, you know, 1973. so that, as he extrapolated went through all of these other case which is were the privacy for couples, for same-sex couples, for homosexual marriage. it just relates to so many aspects. so it started with contraception which was not legal -- was not universally legal or accepted until the supreme court rules back in the '60s. and then took it all the way. and that makes it very relatable. and when you say things like stare decisis, not acknowledging precedent. that is something to people in latinisms and cases that have been decided that affect your daily life, and we know what
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groups we're talking about, the voting groups, the suburban women and other women, particularly. and lgbtq people. it affects a lot of people. we know as of last night, the president's very strange appeal at that rally, hey, suburban, women, i need to you like me. >> please like me, yeah. >> please like me. yeah. that's the larger context here. >> they like me. they really like me. claire mccaskill, i found that chart of chris coons. and i thought, how come i didn't see that sooner. that, to me, i thought a very effective way of very easy to consume, you want to understand what this switch means, here you go. i thought it was -- i thought it was something i wonder, boy, should we have seen this sooner from the democratic side of theively. > the isle. >> perhaps, i think the focus on
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health care is important. i think they made real headway there. >> i think they did, too. >> this nominee really messed up yesterday when she tried to contend that she didn't know donald trump would be able to have the supreme court over turn the aba. she was on the short stick, of course she knew that. then she wrote a letter, at the inaugural, hey, look at me, i'll overturn it. and the other thing that bugged me, chuck, ben sasse righteous about democratic judges and give me a break. because of mitch mcconnell, he took it to a majority. there are always going to be republican and democratic judges. that happened with ben sasse and the acquiescence of his party leader. >> getting it done, lowering it from 50 to 60,


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